KENT -v- LECHMERE FINANCIAL CORPORATION & ORS [2002] WASC 75

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 75
Case No:	CIV:1082/2002	Heard:	4 APRIL 2002
Coram:	PULLIN J	Delivered:	11/04/02
No of pages:	15	Judgment Part:	1 of 1
Result:	Issue of writ and service of notice of writ set aside Action dismissed against first and second defendants
Category:	B
PDF Version

Parties:	ANDREW LESLIE KENT LECHMERE FINANCIAL CORPORATION DRYSDALE INVESTMENTS CORPORATION ASPERMONT LIMITED
Catchwords:	Courts Jurisdiction "Long arm" jurisdiction Application to set aside issue of writ and service of notice of writ
Legislation:	Rules of the Supreme Court 1971 (WA), O 2 r 1, O 5 r 9, O 7 r 1(1), O 10 r 1(1), O 10 r 4(1), O 12 r 6,O 12 r 7, O 58 r 23
Case References:	AIS v Jumbo Scheepvaart (1988) 14 NSWLR 507 Australian Securities & Investments Commission v Edensor Nominess Pty Ltd [2001] HCA 1 Bill Discount Services Pty Ltd (In Liquidation) v Dill-Macky, unreported; FCt SCt of WA; Library No 6700; 7 May 1987 BP Australia Ltd v Kirki Shipping Corporation, unreported; SCt of WA; Library No 940612; 1 November 1994 Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 Delco Australia Pty Ltd v Equipment Enterprises Inc (2000) 100 FCR 385 GAF Corporation v Amchem Products Inc [1975] 1 Lloyds Rep 601 Koranna Nominees Pty Ltd v Roberts, unreported; FCt SCt of WA; Library No 4289; 15 October 1991 Laurie v Carroll (1957-58) 98 CLR 310 Pontin v Wood [1962] 1 QB 594 Shantou Hesheng Commercial Development Co v P & O Swire Containers Ltd [1999] 3 VR 478 at 480 Stanley Kerr Holdings Pty Ltd v Gibor Textile Enterprises Ltd [1978] 2 NSWLR 372 Williams v The Society of Lloyd's [1994] 1 VR 274 Agar v Hyde (2000) 201 CLR 552 Bell Group NV v Aspinall (1998) 19 WAR 561 Biggs v DPP (1997) 17 WAR 534 Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350 Cameron v Cole (1944) 68 CLR 571 Contender 1 Ltd v LEP International Pty Ltd (1988) 82 ALR 394 Newcombe v AME Properties Ltd (1995) 14 WAR 259 Official Solicitor v Stype Investments Ltd [1983] 1 WLR 214 Slingsby v Slingsby [1912] 2 Ch 21 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KENT -v- LECHMERE FINANCIAL CORPORATION & ORS [2002] WASC 75 CORAM : PULLIN J HEARD : 4 APRIL 2002 DELIVERED : 11 APRIL 2002 FILE NO/S : CIV 1082 of 2002 BETWEEN : ANDREW LESLIE KENT

Plaintiff

AND

LECHMERE FINANCIAL CORPORATION

First Defendant

DRYSDALE INVESTMENTS CORPORATION

Second Defendant

ASPERMONT LIMITED

Third Defendant

Catchwords:

Courts - Jurisdiction - "Long arm" jurisdiction - Application to set aside issue of writ and service of notice of writ

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r…

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.

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Details

Case: [2002] WASC 75
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Andrew Leslie Kent initiated proceedings against Lechmere Financial Corporation, Drysdale Investments Corporation, and Aspermont Limited. The court was tasked with deciding whether the writ of summons and the service of the notice of writ were valid, particularly given that the defendants were located outside Australia and had their principal place of business in Monaco. The legal issues centered on whether the court had jurisdiction over the defendants and if the plaintiff had complied with the necessary procedural requirements for serving a writ outside the jurisdiction.

The court held that the plaintiff had not obtained the required leave to issue the writ under Rule 5 Rule 9 of the Rules of the Supreme Court 1971 (WA), which mandates leave for writs to be served out of jurisdiction. Additionally, the plaintiff failed to obtain leave to serve notice of the writ out of jurisdiction under Rule 10 Rule 1(1), which requires the subject matter of the action to fall within specific provisions for service outside the jurisdiction. The court found that the plaintiff's affidavit did not adequately demonstrate that the subject matter of the action fell within any of the sub-paragraphs of Rule 10 Rule 1(1), and therefore, the writ was defective.

Moreover, the court found that the plaintiff had not disclosed all relevant information to the Acting Master when seeking leave to serve the writ out of jurisdiction. This non-disclosure, coupled with the procedural errors, led the court to set aside the issue of the writ and the service of the notice of writ against the first and second defendants. Consequently, the action against the first and second defendants was dismissed.

Orders