McWilliam v Watson - [2000] NSWSC 761

CITATION: McWILLIAM & ORS v WATSON & ORS [2000] NSWSC 761

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 15356/92

HEARING DATE(S): 17 July 2000, 18 July 2000

JUDGMENT DATE: 18 July 2000

PARTIES :

Peter Bruce McWilliam
(Third Plaintiff)
Richard Anthony Watson
(First Defendant)
Phillip Gregory Davey
(Second Defendant)
Louis William Le Compte
(Third Defendant)

JUDGMENT OF: Adams J at 1

LOWER COURT
JURISDICTION : Supreme Court (Master)

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Master Harrison

COUNSEL :
Mr P R Glissan
(First & Second Plaintiffs)
Mr B Shields
(Defendants)

SOLICITORS:
John Cunningham
(Plaintiffs)
Ebsworth & Ebsworth
(Defendants)

CASES CITED: FAI General Insuance Company Limited v Southern Cross Exploration NL (1998) ALR 77

DECISION: Appeal allowed; No order as to costs.

Revised
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J
TUESDAY 18 JULY 2000

15356/92

BRUCE McWILLIAM & 2 ORS v RICHARD ANTHONY WATSON & 2 ORS
JUDGMENT:
1 HIS HONOUR: This is an appeal from an order of the Master refusing a motion to extend time limits expressed in self-executing orders made on 11 February 1998. They required, amongst other things, that an Amended Statement of Claim be forwarded to the defendant's solicitor on or before 6 March 1998, and that the plaintiffs were to provide a reply to the defendants’ request for particulars within 21 days. Failure to comply with either of these requirements would result in the Statement of Claim being dismissed by virtue of the order. 2 On 6 March 1998 the plaintiffs filed an Amended Statement of Claim in accordance with the first of the requirements, but did not answer particulars in accordance with the second. Those particulars were requested on 18 May 1998 and it followed that the plaintiffs were ordered to answer them by 8 June 1998. They were not answered until 16 October 1998. Accordingly, the plaintiffs delayed four months in providing particulars in circumstances where a self-executing order was made. 3 By notice of motion filed 31 August 1999 the second and third plaintiffs (the first plaintiff having died in the meantime) seek that the time of compliance with the second requirement of the self-executing orders be extended up to and including 16 October 1998, and other ancillary orders. Essentially, the reason advanced by the plaintiffs to the Master for the failure to comply with the request for particulars by the required date was that they were impecunious and were unable to pay to their solicitor in respect of outstanding fees $200 until 16 October 1998 and the balance until 2 June 1999. In the meantime, the solicitor had declined to do any further work. 4 In dealing with the application, the Master noted a chronology set out in the affidavit of Bruce Scott McWilliam, the second plaintiff. That affidavit did not, however, explain how the impecuniosity of the plaintiffs led to the delay in payment, and to this extent might fairly be described as exiguous. 5 Dealing with the history of 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 McWilliam v Watson

Details

AGLC: McWilliam v Watson [2000] NSWSC 761
Case: [2000] NSWSC 761
Decision Date: 18 July 2000

CaseChat Overview and Summary

McWilliam v Watson is an appeal against a decision of the Master to refuse a motion to extend time limits under self-executing orders in a proceeding originally filed in the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiffs, who were impecunious, could be granted an extension of time to comply with the self-executing orders. These orders required the plaintiffs to file an Amended Statement of Claim and to provide particulars within specified time frames. The plaintiffs had failed to meet these requirements, leading to the Master's decision to dismiss the Statement of Claim.

The legal issue before the court was the interpretation and application of the discretion to extend time limits under self-executing orders. The plaintiffs argued that their impecuniosity was a substantial factor in their failure to comply with the orders, while the defendants argued for the necessity of finality in litigation and the prejudice caused by the delay. The court was required to balance these competing considerations.

In its judgment, the court held that the Master had erred in not adequately considering the plaintiffs' impecuniosity and the additional evidence of negotiations to settle the litigation. The court found that the plaintiffs' inability to pay their solicitor had significantly contributed to their delay in complying with the orders. While the need for finality in litigation was a relevant consideration, the court determined that it was not as significant as the impecuniosity of the plaintiffs. The court also noted that the Master had not fully considered the impact of the delay on the defendants' ability to present their case.

The court allowed the appeal, extended the time for the plaintiffs to comply with the self-executing orders, and set the matter down for further directions. The court made no order as to costs, upholding the costs order of the Master.

Orders