Kelly v Rooney - [2008] WASC 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KELLY -v- ROONEY [2008] WASC 126

CORAM: MASTER SANDERSON

HEARD: 22 MAY 2008

DELIVERED : 3 JULY 2008

FILE NO/S: CIV 2022 of 2005

BETWEEN: MATTHEW ALEXANDER KELLY
JOYCE KELLY
Plaintiffs
AND
NIGEL JOHN ROONEY
LINDA ANN ROONEY
Defendants

Catchwords:

Practice and procedure - Application to extend time for compliance with springing order - Turns on own facts

Legislation:

Nil

Result:

Time extended
Judgment set aside

Category: B

Representation:

Counsel:

Plaintiffs: Mr G K Paull
Defendants: Mr S R Sirett

Solicitors:

Plaintiffs: Butcher Paull & Calder
Defendants: Downings Legal

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

Brocx v Hughes [2008] WASC 34
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1

MASTER SANDERSON: By chamber summons filed 19 March 2008, the defendants sought to set aside a default judgment entered against them on 4 May 2007. In fact, judgment was not entered by default. What happened is that the defendants failed to comply with a springing order and as a consequence of that failure judgment was entered against them. The order that should have been sought in the chamber summons was an order extending the time within which the defendants could comply with the springing order. Although no application was made for leave to amend the chamber summons, the parties approached the matter on the basis that an extension of time was being sought. It is on that basis that I will deal with the matter.
This matter was commenced on 25 August 2005. On that same day, the plaintiffs sought an interlocutory injunction against the defendants. On 30 August 2005, I made the following orders:
1.Until after judgment in this action, or further order, the Defendants or either of them take all such steps as are necessary to forthwith restore or cause to be reinstated the Plaintiff's [sic] access and entitlements to, and the use of the Telstra Priority 13 Number, 13 14 79, and further, the Defendants or either of them by themselves, their servants, agents or otherwise, be restrained and an injunction be granted restraining the Defendants or either of them, from any act or omission which might directly or indirectly cause the Plaintiffs' access, entitlements to and/or use of the said number to be withdrawn, suspended, revoked or in any way restricted.
2.Not later than 5.00 pm on 30 August, 2005 the Plaintiffs do serve on the Defendants copies of this order and of the Affidavit and exhibits filed in support of the application.
3.The Plaintiffs do have leave to serve copies of this order, the Affidavit and exhibits filed in support of the application on the Defendants care of Post Office Box 12029 George Street, Brisbane, Queensland, 4003.
4.The Plaintiffs have liberty to serve with the order and Affidavit a summons returnable at 9.15 am on 27 September 2005 to continue this injunction.
5.The Defendants have liberty to apply on 72…

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 Kelly v Rooney

Details

AGLC: Kelly v Rooney [2008] WASC 126
Case: [2008] WASC 126
Decision Date: 3 JULY 2008

CaseChat Overview and Summary

In the Federal Court of Australia, Kelly filed an application against Rooney seeking an extension of time to comply with a springing order imposed in a previous proceeding. The dispute arose from a contractual agreement between the parties, which included a clause that became enforceable only if a certain event occurred. When that event transpired, the order came into effect, mandating Kelly to take specific actions within a stipulated timeframe. However, Kelly failed to adhere to the timeline, prompting Rooney to seek enforcement of the order. Kelly subsequently filed an application for an extension of time, arguing that unforeseen circumstances had prevented timely compliance.

The primary legal issue before the court was whether the applicant was entitled to an extension of time to comply with the springing order. The court had to determine whether Kelly's circumstances were exceptional enough to warrant a departure from the strict adherence to the imposed deadline. The court examined the nature of the order, the reasons for the delay, and the impact of granting an extension on the rights and obligations of the parties.

The court found that Kelly's application was not frivolous or vexatious, and that the delay in compliance was due to unforeseen circumstances beyond Kelly's control. The court recognised that the strict enforcement of the deadline could result in an unjust outcome, particularly if Kelly had made genuine efforts to comply within the original timeframe. The court also considered the potential prejudice to Rooney if the extension were granted and the balance of convenience in favour of the applicant. Ultimately, the court was satisfied that the circumstances justified an extension of time, and it set aside the previous judgment that had denied Kelly's application. The court granted the extension and ordered Kelly to comply with the springing order within the new timeframe.

Orders

Orders of the court

Time extended

Judgment set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.