Jasmine Glen Pty Ltd v Falkirk Nominees Pty Ltd (Administrator Appointed) (ACN 008 796 272) formerly trading as Australian Property Consultants

[2004] WASC 156

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   JASMINE GLEN PTY LTD -v- FALKIRK NOMINEES PTY LTD (Administrator Appointed) (ACN 008 796 272) formerly trading as AUSTRALIAN PROPERTY CONSULTANTS & ORS [2004] WASC 156

CORAM:   MASTER NEWNES

HEARD:   1 JULY 2004

DELIVERED          :   1 JULY 2004

PUBLISHED           :  6 JULY 2004

FILE NO/S:   CIV 2334 of 2003

BETWEEN:   JASMINE GLEN PTY LTD (ACN 063 663 089)

Plaintiff

AND

FALKIRK NOMINEES PTY LTD (Administrator Appointed) (ACN 008 796 272) formerly trading as AUSTRALIAN PROPERTY CONSULTANTS (ACN 008 796 272) formerly trading as AUSTRALIAN PROPERTY CONSULTANT)
First Defendant

BERNIE WORTHINGTON
SANDRA MONTAGUE
Second Defendants

Catchwords:

Practice and procedure - Appeal from case management Registrar - Order that writ be served three months before expiration of 12­month period in O 7 r 1 - Whether plaintiff shown good cause why writ not served - Turns on own facts

Legislation:

Rules of the Supreme Court1971 (WA), O 7 r 1, O 7 r 4, O 60A

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Plaintiff:     Ms C Griffiths

First Defendant             :     No appearance

Second Defendants       :     No appearance

Solicitors:

Plaintiff:     Freehills

First Defendant             :     No appearance

Second Defendants       :     No appearance

Case(s) referred to in judgment(s):

Bell Group NV (In Liq) v Aspinall & Anor (1998) 19 WAR 561

Case(s) also cited:

Nil

1. MASTER NEWNES:  This is an appeal from a decision of a case management Registrar who ordered that, unless the plaintiff served the writ of summons on the defendants and filed an affidavit of service by 27 July 2004, the writ be struck out.  The plaintiff seeks to have the order set aside.

2. The writ of summons was issued on 6 November 2003.  In it, the plaintiff claims against the defendants damages in respect of a valuation by the defendants of a property in South Perth pursuant to a contract made between the plaintiff and the first defendant in 1997.  It is alleged that the defendants carried out the valuation negligently.

3. On 11 May 2004, the writ by then not having been served, the case management Registrar issued a summons to the plaintiff's solicitors, pursuant to O 7 r 4 of the Rules of the Supreme Court1971 (WA), to attend before a Registrar in chambers on 27 May 2004 to show cause why the writ should not be struck out.

4. At the hearing on 27 May 2004, counsel for the plaintiff informed the Registrar from the bar table that the writ had been issued in order to protect the plaintiff's position in respect of the limitation period and it had not been served because first, the plaintiff did not currently have the funds to proceed with the action and secondly, the first defendant was in liquidation, giving rise to "issues associated with that". Counsel said that the second defendants were the employees who carried out the valuation on behalf of the first defendant. It was submitted that there were no special circumstances which would require that the writ be served within six months, rather than within the 12‑month period provided for by O 7 r 1. I should mention that no affidavit material was put before the learned Registrar and counsel for the plaintiff did not indicate whether or not any of the defendants were aware that the proceedings had been commenced.

5. It is apparent that the learned Registrar was concerned that the existence of the writ would be known to credit association agencies so that if the second defendants were still in business it was likely that the fact a writ had been issued against them would be affecting their business.  The learned Registrar considered that the action should therefore proceed without delay and that to leave the writ unserved any longer was unfair to the second defendants.  It was on that basis the learned Registrar ordered that, unless by 27 July 2004 the plaintiff serves the writ on the defendants and files an affidavit or affidavits of service, the writ be struck out. 

6. On this appeal, it was submitted by counsel for the plaintiff that sufficient reason had been shown why the writ should not be required to be served at this stage.  Counsel relied on the decision of the Full Court in Bell Group NV (In Liq) v Aspinall & Anor (1998) 19 WAR 561 at 576 ‑ 577 where the Court said:

   "It is true … that case management principles tend against anything that will result in undue delay in bringing litigation to finality. But it must be borne in mind that the rules contemplate that a writ may remain unserved for up to 12 months. That principle, which is enshrined in O 7 r 1, must now be read in the light of O 7 r 4. This rule empowers the Court of its own motion to seek an explanation for a delay in serving the writ and, in an appropriate case, to strike out the writ if it has not been served within six months after the date of issue. But even in the face of this rule it is generally accepted that a plaintiff is entitled to delay service until the last moment and that case management principles do not render such a choice an abuse of process."

7. On this application, I have had the benefit, which the learned Registrar did not, of an affidavit sworn by a director of the plaintiff, Mr Ziatas, on behalf of the plaintiff.  This is, of course, a rehearing and I am entitled to take into account material which was not before the learned Registrar. 

8. In his affidavit, Mr Ziatas says, among other things, that he has been informed by the administrator of the first defendant that the administrator is aware of the proceedings and does not oppose the plaintiff's appeal.  Mr Ziatas says the valuation which is the subject of the appeal was prepared and signed by the second defendants in their capacity as employees of the first defendant.  It is dated 7 November 1997.  The writ was issued on 6 November 2003, principally in order to avoid any future contention that a claim in contract against the first defendant was statute‑barred.   

9. Mr Ziatas says the plaintiff's present financial position is such that it is still not in a position to fund the action, but it is actively seeking funds to enable it to do so, including for any security for costs it might be ordered to pay.

10. Whether or not the existence of the writ is causing the second defendants any difficulties of the sort contemplated by the learned Registrar must necessarily be a matter of conjecture. However, as Mr Ziatas observes in his affidavit, notice of this appeal was sent to the second defendants. The second defendants have apparently not taken any steps as a consequence. Moreover, the additional period of some three months between the latest date for service specified by the learned Registrar and the expiration of the period prescribed by O 7 r 1 is unlikely to add significantly to any such difficulties. On the other hand, if the plaintiff is required to serve the writ at a time when it is unable to fund the normal interlocutory steps, substantial delay in the interlocutory process seems inevitable.

11. On the basis of the material before me, I am satisfied that the order of the learned Registrar should be set aside.  The plaintiff has, in my view, established sufficient cause why the writ has not been served. 

12. I would, therefore, set aside the order of 27 May 2004. The summons pursuant to O 7 r 4 has been otherwise adjourned sine die.  The summons should be left on that basis.