King v Australaw Pty Ltd - [2025] VSC 136

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S ECI 2023 03834

BETWEEN:

DARRYL KING	Plaintiff
v
AUSTRALAW PTY LTD (TRADING AS KELSO LAWYERS) (ACN 167 783 708)	Defendant

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JUDICIAL REGISTRAR:	Baker JR
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2025
DATE OF RULING:	24 March 2025
CASE MAY BE CITED AS:	King v Australaw Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VSC 136

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PRACTICE AND PROCEDURE – Duration of validity of originating process – Application for extension of writ for 12 months – Writ unserved within period allowed by the Rules – Whether ‘good reason’ has been shown to warrant extension – Rule 5.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Adequacy of affidavit material in support – Howard v Power [2013] VSC 198 – Duty of a plaintiff to serve a writ promptly – Obligations of parties to ex parte applications – Lack of evidence before the Court – Apprehended prejudice and late timing of the application – Extension of writ granted for 14 days.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Chandramohan	Arnold Thomas & Becker Pty Ltd
For the Defendant	---	No appearance

JUDICIAL REGISTRAR:

This ruling concerns an application by the plaintiff in this proceeding, Mr King, to extend the period of validity for service of the writ he has issued, pursuant to r 5.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’).
Mr King commenced a claim against Australaw Pty Ltd (trading as Kelso Lawyers) in the Court’s Professional Liability List on 24 August 2023. Based on the brief indorsement accompanying the writ, Mr King alleges that Australaw previously acted for him in a claim for compensation against a number of defendants concerning child sexual abuse (a claim which would currently be managed within the Court’s Institutional Liability List), and that the claim was settled for an inadequate amount (or alternately that he lost the opportunity to successfully obtain a greater amount from the claim), as a result of negligence and a breach of contract by Australaw.
The writ was not served within the 12 months permitted by the Rules.[1] Instead, on 22 August 2024, Mr King issued a summons seeking an order extending the period of validity for service of the writ for a further 12 months. In support of this application, Mr King relied on a brief affidavit of his solicitor, Madeline Macriyiannis, affirmed 21 August 2024. That affidavit contains the following substantive paragraphs (excluding the introductory and formal sections):
[1]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.12(1).
3.This proceeding (“the Professional Negligence Proceeding”) was commenced by way of Generally Endorsed Writ filed 24 August 2023 (S ECI 2023 03834).
4.In the Professional Negligence Proceeding the Plaintiff claims damages for loss suffered as a result of negligence and breach of contract on behalf of the Defendant.
5.The Professional Negligence Proceeding has not yet been served on the…

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 King v Australaw Pty Ltd

Details

AGLC: King v Australaw Pty Ltd [2025] VSC 136
Case: [2025] VSC 136
Decision Date: 24 March 2025

CaseChat Overview and Summary

In King v Australaw Pty Ltd, the plaintiff sought an extension of the writ's validity period by 12 months. The case was heard in the Supreme Court of Victoria, where the plaintiff aimed to enforce a judgment against the defendant, who had not paid the awarded damages. The writ had not been served within the statutory period, and the plaintiff's application for an extension came more than a year after the writ's expiration.

The primary legal issue before the court was whether the plaintiff had demonstrated "good reason" for the delay in serving the writ, warranting an extension under Rule 5.12 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The court had to assess the adequacy of the affidavit material presented and consider the plaintiff's duty to serve the writ promptly. The plaintiff's obligations under ex parte applications and the lack of evidence regarding prejudice and the timing of the application also factored into the decision.

The court acknowledged the plaintiff's duty to serve the writ promptly but found that the application for an extension was not entirely devoid of merit. The plaintiff had provided some justification for the delay, although the evidence was not robust. Considering the lack of prejudice to the defendant and the late timing of the application, the court granted an extension of 14 days, allowing the plaintiff to serve the writ within this period. This decision balanced the plaintiff's procedural obligations with the need for flexibility in exceptional circumstances.

The final orders of the court granted the plaintiff's application for an extension, permitting the writ to be served within 14 days from the date of the judgment. This extension aimed to provide the plaintiff with an opportunity to enforce the judgment without imposing undue hardship on the defendant.

Orders