Knope v Webster - [2009] SASC 316

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KNOPE & ANOR v WEBSTER & ANOR
[2009] SASC 316
Judgment of The Honourable Justice David
24 September 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
Application by defendant for order under r 37.04 (a) and r 37.04 (b) Supreme Court Rules 1987 - application by third party for extension of time to file a defence - application for extension of time made almost two years and nine months after the initial expiry of the time prescribed by the Supreme Court Rules 1987 to do so - whether third party should be granted extension of time.
Held: defence as presented by third party to the third party claim is reasonably arguable and should proceed to trial - defendant's application for order under r 37.04 (a) and r 37.04 (b) refused - order made for extension of time for third party to file Notice of Address for Service and Defence.
Supreme Court Rules 1987 (SA) r 41.01, r 37.04, r 3.04, referred to.
Watson v Anderson (1976) 13 SASR 329, applied.

KNOPE & ANOR v WEBSTER & ANOR
[2009] SASC 316
Civil

DAVID J. These reasons relate to two applications filed subsequent to a consent judgment being entered in these proceedings between Mr Bernard Knope and Mrs Barbara Knope (“the plaintiffs”) and Mr Frank Webster (“the defendant”). The current applications were filed by Mr Robert Hallett Shueard (“the third party”) and the defendant.
Background
The defendant formerly practised as a solicitor under the registered business name of “Frank Webster & Associates” (“the Firm”) and acted as solicitor for the third party in relation to claims for damages arising out of two motor vehicle accidents.
In June 2001, the third party gave the defendant notice of a financial agreement between he and the plaintiffs and “on the express instructions of [the third party]”,[1] the defendant signed an irrevocable undertaking saying he would pay the plaintiffs “a sum as agreed between [the third party] and [the plaintiffs]” from the balance payable to the third party from his personal injuries claims after payment of special damages, costs and disbursements. The defendant denied that the third party ever advised him of the terms of the agreement or the amount that was to be repaid subject to that agreement.[2]
[1] Affidavit of Frank Raymond Webster 6 May 2009 para 57.
[2] Amended Defence 18 October 2007 para 6.
In January 2004 the defendant retired from the Firm due to ill health, and thereafter a Mr Kenneth Gluche (“Mr Gluche”) became the registered proprietor of the Firm’s business name and conducted business as a legal practitioner under that name.
The third party’s personal injuries claims settled in May 2004 for a combined total sum of $300,000 inclusive of interest and legal costs.[3] On 18 June 2004 Mr Gluche prepared the following document which the third party signed:[4]
[3] Statement of Claim Pt I para 43.1.
[4] Affidavit of Kenneth Bruce Gluche 5…

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 Knope v Webster

Details

AGLC: Knope v Webster [2009] SASC 316
Case: [2009] SASC 316
Decision Date: 24 September 2009

CaseChat Overview and Summary

The case of Knope v Webster involved an application by the defendant for an order under rules 37.04 (a) and (b) of the Supreme Court Rules 1987. The defendant sought an extension of time to file a defence against a third party claim brought by the plaintiff. The application for the extension was made almost two years and nine months after the initial expiry of the prescribed time under the Supreme Court Rules to file a defence. The primary issue before the court was whether the third party should be granted an extension of time to file their defence.

The court considered the merits of the defence presented by the third party and found it to be reasonably arguable. This finding was crucial as it meant the defence had sufficient merit to proceed to trial. The court also examined the circumstances surrounding the delay in filing the defence and the reasons provided by the third party for the delay. In making its decision, the court balanced the need for the timely administration of justice against the merits of the defence and the reasons for the delay. The court concluded that the defence was reasonably arguable and, therefore, the application for an extension of time should be granted to allow the third party to file their Notice of Address for Service and Defence.

The court refused the defendant's application for an order under rules 37.04 (a) and (b) of the Supreme Court Rules 1987. Instead, the court made an order granting the third party an extension of time to file their Notice of Address for Service and Defence. This decision ensures that the reasonably arguable defence can proceed to trial, allowing for a full and fair determination of the merits of the third party claim.

Orders