KENSIT & ANOR -v- POPPERWELL & ORS [2007] WASC 163

Link to Appeal :

[2008] WASCA 122

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 163
Case No:	CIV:1582/2005	Heard:	18 JUNE 2007
Coram:	MASTER SANDERSON	Delivered:	30/07/07
No of pages:	8	Judgment Part:	1 of 1
Result:	Validity of writ extended
Category:	B
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Parties:	RHONDA EILEEN KENSIT ROBYN LEE COUZENS SEAN FRANCIS POPPERWELL CHALMERS & PARTNERS (A FIRM) DOROTHY ANNE BROOKES DOUBLE B (WA) PTY LTD (ACN 076 430 227)
Catchwords:	Practice and procedure Application to extend validity of a writ which was stale when served Turns on own facts
Legislation:	Nil
Case References:	Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Kleinwort Benson Ltd v Barbrak [1987] AC 597 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KENSIT & ANOR -v- POPPERWELL & ORS [2007] WASC 163 CORAM : MASTER SANDERSON HEARD : 18 JUNE 2007 DELIVERED : 30 JULY 2007 FILE NO/S : CIV 1582 of 2005 BETWEEN : RHONDA EILEEN KENSIT

First Plaintiff

ROBYN LEE COUZENS

Second Plaintiff

AND

SEAN FRANCIS POPPERWELL

First Defendant

CHALMERS & PARTNERS (A FIRM)

Second Defendant

DOROTHY ANNE BROOKES

Third Defendant

DOUBLE B (WA) PTY LTD (ACN 076 430 227)

Fourth Defendant

Catchwords:

Practice and procedure - Application to extend validity of a writ which was stale when served - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Validity of writ extended

Category: B

Representation:

Counsel:

First Plaintiff : Mr R J L McCormack

Second Plaintiff : Mr R J L McCormack

First Defendant : Mr J A Thomson

Second Defendant : Mr J A Thomson

Third Defendant : No appearance

Fourth Defendant : No appearance

Solicitors:

First Plaintiff : Cameron Eastwood

Second Plaintiff : Cameron Eastwood

First Defendant : Jackson McDonald

Second Defendant : Jackson McDonald

Third Defendant : No appearance

Fourth Defendant : No appearance

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

Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Kleinwort Benson Ltd v Barbrak [1987] AC 597
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79

(Page 3)

1 MASTER SANDERSON: On 26 May 2005, the plaintiffs issued a writ against the defendants. The writ was generally indorsed as follows:

"The Plaintiff's [

sic

, Plaintiffs'] claim against the Defendants, jointly and severally is for:

1. damages and for equitable relief arising out of negligence, breach of statutory duty, breach of contract, breach of fiduciary duty and breach of duty of trust and confidence;

2. Interest, pursuant to Section 32 of the Supreme Court Act 1935;

3. Costs."

2 The writ was not served on the first and second defendants until 26 May 2006. Service was out of time. The writ was valid for 12 months…

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 Kensit v Popperwell

Details

AGLC: Kensit v Popperwell [2007] WASC 163
Case: [2007] WASC 163
Decision Date: 30 JULY 2007

CaseChat Overview and Summary

The case of Kensit v Popperwell was heard in the Supreme Court of South Australia. The dispute centred around the validity of a writ that had been served but was deemed stale at the time of service. The plaintiff sought an extension of the writ's validity to allow for further proceedings. The court was required to decide whether the application for an extension of the writ's validity was justified, considering the specific circumstances of the case.

The court considered the legal principles surrounding the validity of writs and the procedural requirements for extending their validity. It noted that while a writ becomes stale when it is served beyond the time limit prescribed by law, there are circumstances under which the court may extend its validity. The court emphasised the need to balance the interests of justice with the statutory requirements governing the service of writs. In this case, the court had to determine if the application for an extension was made within a reasonable time and if there were exceptional circumstances warranting such an extension.

The Supreme Court found that the plaintiff had acted promptly in seeking the extension and that there were indeed exceptional circumstances present. These circumstances included a significant delay caused by the defendant's solicitors and the plaintiff's reasonable belief that the writ was still valid. The court was satisfied that justice would be served by granting the extension. Therefore, the writ's validity was extended, and the proceedings could continue.

The final orders of the court were that the writ's validity was extended, allowing the plaintiff to proceed with the legal action against the defendant. The court's decision was based on the specific facts and circumstances of the case, recognising the importance of fairness and the need to avoid unjust outcomes due to procedural errors.

Orders

Orders of the court

Validity of writ extended

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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