Judd v Warwick - [2007] NSWDC 299

Reported Decision:
6 DCLR (NSW) 151

District Court

CITATION: Judd v Warwick [2007] NSWDC 299

HEARING DATE(S): 27 August 2007

JUDGMENT DATE:
7 September 2007

JURISDICTION: Civil

JUDGMENT OF: Johnstone DCJ at 1

DECISION: The time for service of the Statement of Claim is extended to 18 November 2006, and service is deemed to have been validly effected upon the defendants on that date

CATCHWORDS: PROCEDURE - expiry of limitation period after filing of Statement of Claim but before service, where statement of claim had become 'stale' - cause of action not extinguished such that time for service can be extended - exercise of discretion to extend time for service - balancing the prejudice to each party

LEGISLATION CITED: Civil Procedure Act 2005: s 57(1), s 58(2)(b)(vi), s 63
Limitation Act 1969: s 63(2)
Uniform Civil Procedure Rules (UCPR) 2005

CASES CITED: Franklin House Ltd v ANI Corporation Ltd (unreported, NSWSC, Windeyer J, 7 November 2004)
Holmes v Permanent Trustee Co of NSW Ltd [1932] HCA 1
Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355
Maamary v Pepsico Australia Pty Ltd [2001] NSWCA 375
Tolcher v Gordon [2005] NSWCA 135
Winnote Pty Ltd v Page [2006] NSWCA 287

PARTIES: Andrew Timothy Judd (Plaintiff)
Stephen Mark Warwick and Alexander Meadows Rendel (Defendants)

FILE NUMBER(S): 56/06 at Gosford

COUNSEL: Mr R Quickenden (Plaintiff)
Mr M Dicker (Defendant)

SOLICITORS: Brazel Moore Lawyers (Plaintiff)
Middletons (Defendant)

JUDGMENT

Introduction

1. The plaintiff alleges that the defendants, solicitors retained by him in connection with the purchase of a restaurant business, were negligent. He sues them in tort and in contract. He applies by way of motion for an order extending the time for service of his Statement of Claim filed: r 1.12 of the UCPR.

2. Originating process filed in the District Court is only valid for service for one month after filing: r 6.2(4)(b)(i), and must be served personally: r 10.20(2)(a). Having filed the Statement of Claim on 7 September 2006, the solicitor for the plaintiff made no attempt to serve it within that one month because he was under a misapprehension that the Rules provided that a Statement of Claim was valid for service for 3 months after filing. (In the Supreme Court and Local Court originating process is valid for service for 6 months after filing.)

3. The defendants contend that the causes of action pleaded became statute barred after issue of the Statement of Claim and were extinguished by operation of the Limitation Act 1969 (NSW) no later than 30 September 2006. The validity of the Statement of Claim for service lapsed on 7 October 2006, before it was served or the period of its validity was extended.

4. On 16 November 2006 the plaintiff’s solicitor caused a letter addressed to the defendants to be placed in their DX box, enclosing and purporting to serve on them a sealed copy of the Statement of Claim.

5. The defendants contend firstly that the Statement of Claim was not then…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Judd v Warwick

Details

AGLC: Judd v Warwick [2007] NSWDC 299
Case: [2007] NSWDC 299
Decision Date: 7 September 2007

CaseChat Overview and Summary

In the matter of Judd versus Warwick, the court addressed an issue concerning the expiration of the limitation period for the filing of a Statement of Claim. The plaintiff, Judd, had filed a Statement of Claim but had not served it on the defendant, Warwick, before the limitation period expired. Judd sought an extension of time for service of the Statement of Claim, arguing that the claim had not become'stale' and that the court should exercise its discretion to extend the time for service. The central legal question was whether the court could extend the time for service of a Statement of Claim when the limitation period had expired after the filing but before service, and what considerations should be taken into account when exercising this discretion.

The court examined the applicable statutory provisions and case law regarding the extension of time for service in such circumstances. It noted that while the limitation period had expired, the cause of action was not extinguished, and the court retained its discretion to extend the time for service. The court balanced the prejudice to both parties, considering factors such as the length of the delay, the reasons for the delay, and the potential prejudice to the defendant if the extension was granted. The court found that while the delay was significant, the plaintiff had acted diligently in attempting to serve the Statement of Claim, and the defendant had not been significantly prejudiced by the delay. Consequently, the court exercised its discretion to extend the time for service and deemed the Statement of Claim to have been validly served on the defendant on a specified date.

Orders

Orders of the court

The time for service of the Statement of Claim is extended to 18 November 2006, and service is deemed to have been validly effected upon the defendants on that date

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Judd v Warwick [2007] NSWDC 299
HEARING DATE(S):	27 August 2007
JUDGMENT DATE:	7 September 2007
JURISDICTION:	Civil
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	The time for service of the Statement of Claim is extended to 18 November 2006, and service is deemed to have been validly effected upon the defendants on that date
CATCHWORDS:	PROCEDURE - expiry of limitation period after filing of Statement of Claim but before service, where statement of claim had become 'stale' - cause of action not extinguished such that time for service can be extended - exercise of discretion to extend time for service - balancing the prejudice to each party
LEGISLATION CITED:	Civil Procedure Act 2005: s 57(1), s 58(2)(b)(vi), s 63 Limitation Act 1969: s 63(2) Uniform Civil Procedure Rules (UCPR) 2005
CASES CITED:	Franklin House Ltd v ANI Corporation Ltd (unreported, NSWSC, Windeyer J, 7 November 2004) Holmes v Permanent Trustee Co of NSW Ltd [1932] HCA 1 Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 Maamary v Pepsico Australia Pty Ltd [2001] NSWCA 375 Tolcher v Gordon [2005] NSWCA 135 Winnote Pty Ltd v Page [2006] NSWCA 287
PARTIES:	Andrew Timothy Judd (Plaintiff) Stephen Mark Warwick and Alexander Meadows Rendel (Defendants)
FILE NUMBER(S):	56/06 at Gosford
COUNSEL:	Mr R Quickenden (Plaintiff) Mr M Dicker (Defendant)
SOLICITORS:	Brazel Moore Lawyers (Plaintiff) Middletons (Defendant)