M and I Samaras Structural Engineers v John Holland - [2012] VSC 98

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2010/02707
S CI 2010/02709

M & I SAMARAS PTY LTD (NO 1)	Plaintiff
v
JOHN HOLLAND PTY LTD	Defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2011
DATE OF JUDGMENT:	21 March 2012
CASE MAY BE CITED AS:	M & I Samaras Structural Engineers v John Holland
MEDIUM NEUTRAL CITATION:	[2012] VSC 98

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PRACTICE AND PROCEEDURE – appeal against decision of associate judge – extension of period for service of writs – refusal to set aside - compulsory participation in contractual dispute resolution processes – whether good reason for not serving writs – overarching purpose of Civil Procedure Act 2010 (Vic) – facilitating just, timely and cost-effective resolution of disputes by agreement – whether relevant consideration – possible expiry of limitations period – whether good reasons for extending period for service in any event – Supreme Court (General Civil Procedure) Rules 2005, rr 5.12, 46.08 and 76.06, CivilProcedure Act 2010 (Vic), ss 7, 8 and 9.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr J Digby QC with Mr Carr	McMahon Fernley Lawyers Pty Ltd
For the defendant	Mr J Gleeson SC with Mr Murphy	HWL Ebsworth Lawyers

HIS HONOUR:

M & I Samaras Pty Ltd and John Holland Pty Ltd are parties to building subcontracts dated 8 October 2002 and 9 June 2004 in respect of the State Bowls and Training Velodrome and the Melbourne Sports and Aquatic Centre respectively. The companies are in dispute in relation to both projects, as to which the contractually compulsory dispute resolution procedures are being followed.

On 19 May 2010, Samaras filed two writs with general endorsements, one in respect of the velodrome contract and another in respect of the sports and aquatic centre contract. The writs claimed against John Holland amounts in excess of $1 million and nearly $10 million which were said to be due and payable by that company to Samaras under the contracts respectively. These writs were issued within the period specified in s 5 of the Limitations of Actions Act 1958 (Vic).

Under r 5.12(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), a writ is valid for service for a period of one year after the day it is filed. Samaras made a conscious and deliberate decision not to serve the writs within that period and (as is usually the case in such situations) John Holland did not know the writs had been filed.

Under r 5.12(2) and without notice to John Holland, Samaras made application for the period of validity for the service of the writs to be extended by a further period of 12 months. When the application was made, the first period of validity for service of the writs had not lapsed. On 19 May 2011 and just before the expiry of that first 12 month period, Daly AsJ granted the application for the extension for 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.

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Details

Case: [2012] VSC 98
Decision Date: 21 March 2012

CaseChat Overview and Summary

The case before the court involved an appeal by M and I Samaras Structural Engineers against a decision made by an associate judge. The dispute arose from the associate judge's refusal to set aside an order that required the Samaras to participate in contractual dispute resolution processes. The issue before the court was whether the associate judge had correctly exercised their discretion in refusing to extend the period for service of writs, which would have allowed the Samaras to pursue their claim without participating in the contractual dispute resolution processes. The court had to determine whether the associate judge had considered all relevant factors and whether the overarching purpose of the Civil Procedure Act 2010 (Vic) had been taken into account.

The court considered the relevant provisions of the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2005, including sections 7, 8, and 9, and rules 5.12, 46.08, and 76.06. The court noted that the associate judge had considered the possible expiry of the limitations period as a relevant factor in refusing to extend the period for service. However, the court held that the associate judge had not given sufficient weight to the overarching purpose of the Civil Procedure Act 2010 (Vic), which was to facilitate the just, timely, and cost-effective resolution of disputes by agreement. The court found that the associate judge had not considered whether there were good reasons for extending the period for service, such as the possibility of a settlement or the need for further investigation.

The court held that the associate judge had failed to consider all relevant factors and had not given sufficient weight to the overarching purpose of the Civil Procedure Act 2010 (Vic). The court allowed the appeal and set aside the order that required the Samaras to participate in contractual dispute resolution processes. The court held that the associate judge should have considered whether there were good reasons for extending the period for service of writs, such as the possibility of a settlement or the need for further investigation. The court noted that the possibility of a settlement or the need for further investigation were relevant considerations that the associate judge had failed to take into account. The court also noted that the overarching purpose of the Civil Procedure Act 2010 (Vic) was to facilitate the just, timely, and cost-effective resolution of disputes by agreement, and that this purpose should have been given due consideration in the associate judge's decision-making process.

Orders