Mistring Pty Ltd v Certain Underwriters at Lloyds

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mistring Pty Ltd and Anor v Certain Underwriters at Lloyds and Anor [2017] NSWDC 394
Hearing dates:	24 November 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Civil
Before:	Letherbarrow SC DCJ
Decision:	Extensions of time declined. Plaintiff’s statement of claim dismissed.
Catchwords:	Extension of time for service of statement of claim; discretionary considerations; conscious decision not to serve statement of claim; length of delay; reasons for delay; whether delay deliberate; conduct of parties; prejudice
Legislation Cited:	Civil Procedure Act; ss 56-60 Uniform Civil Procedure Rules; r 1.12 and r 6.2(4)(b)(ii) Practice Note DC (Civil) Practice No. 1
Cases Cited:	Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 Agricultural & Rural Finance Pty Limited v Kirk & Anor [2011] NSWCA 67 Brisbane South Regional Health Authority v Sharon Annette Taylor (1996) HCA 25; (1996) 186 CLR 541 Tolcher v Gordon [2005] NSWCA 153 Wakim v Coleman [2010] NSWCA 221 Andresakis and Skouteris trading as Andresakis & Associates v Alexus Holdings Pty Ltd [2006] NSWCA 294 Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517
Category:	Procedural and other rulings
Parties:	Mistring Pty Limited (First Plaintiff) Nabone Pty Limited (Second Plaintiff) Certain Underwriters at Lloyds (First Defendant) Garaty Murnane Insurance Brokers Pty Ltd (Second Defendant)
Representation:	Counsel: P Afshar (First and Second Plaintiffs) A Horvath (First and Second Defendants) ADC Legal Litigation Lawyers (First and Second Plaintiffs) Clyde & Co Australia (First Defendant) McCabes (Second Defendant)
File Number(s):	2017/86910
Publication restriction:	None

JUDGMENT

Introduction

1. Before the court are three motions. The first was filed by the second defendant on 15 September 2017. The remaining two were filed by the plaintiffs and the first defendant on 6 October 2017.

2. Whilst the three motions seek different orders, the common issue is whether the Court should exercise its discretion pursuant to rule 1.12 of the Uniform Civil Procedure Rules (the UCPR) to extend the time for service of the plaintiffs’ statement of claim as against either or both defendants.

The evidence

3. In support of the extensions sought, Mr Afshar, counsel for the plaintiffs, read two affidavits. The first is from a Mr David Nabarro, sworn 19 October 2017. Mr Nabarro is the sole director of the second plaintiff and deposes that he is authorised to make such affidavit on behalf of both plaintiffs. The second affidavit is from a Mr Tim Wang, affirmed on the same date. Mr Wang is the solicitor with carriage of the matter on behalf of the plaintiffs’ solicitors.

4. In opposing the extensions, Ms Horvath, counsel for both defendants, also read two affidavits. The first is from a Mr David Amentas, affirmed 27 October last. Mr Amentas is the first defendant’s solicitor on the record. The second is from a Mr Andrew James Sharpe, sworn 1 November last. Mr Sharpe is the second defendant’s solicitor on the record.

5. In addition, Ms Horvath tendered…