Packham Pty Ltd v Teo - [2006] WASC 135

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PACKHAM PTY LTD -v- TEO [2006] WASC 135

CORAM: MILLER J

HEARD: 27 JUNE 2006

DELIVERED : 27 JUNE 2006

FILE NO/S: CIV 2342 of 2005

BETWEEN: PACKHAM PTY LTD (ACN 056 326 884)
Plaintiff
AND
GRACIE TEO
Defendant

Catchwords:

Practice Service by facsimile Whether sending defence by facsimile constitutes effective service Whether facsimile sent to solicitors' office within normal business hours Turns on own facts

Legislation:

Corporations Law

Rules of the Supreme Court 1971 (WA), O 41 r 1, O 72, O 72 r 5, O 72 r 5(1)(a)

Result:

Motion for judgment dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr B R Gannon
Defendant: Mr J L H Formby

Solicitors:

Plaintiff: Solomon Brothers
Defendant: Formbys

Case(s) referred to in judgment(s):

Biotech International Ltd v Peptech Ltd [2000] WASC 120
Hastie & Jenkerson v McMahon [1990] 1 WLR 1575
NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26

Case(s) also cited:

Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8
Brown v Heffer (1967) 116 CLR 344
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Dougan v Ley (1946) 71 CLR 142
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Hewett v Court (1983) 149 CLR 639
JC Williamson Ltd v Lukey (1931) 45 CLR 282
Johnson v Agnew [1980] AC 367
Legione v Hateley (1983) 152 CLR 406
Lewes Nominees Pty Ltd v Strang (1983) 49 ALR 328
Oskar v Bank of New South Wales [1984] WAR 262
Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146
Re Ocean Distributors Pty Ltd (1990) 2 ACSR 486
Strang v Lewes Nominees Pty Ltd [1983] WAR 139
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107

MILLER J: On 22 March 2006, Registrar Boyle made an order that unless by Monday, 3 April 2006 the defendant complied with an order made on 14 December 2005 to file and serve its defence, the plaintiff should be at liberty to move for judgment in terms of orders sought in its motion for specific judgment.
On 12 April 2006, the plaintiff filed a motion for specific judgment pursuant to O 41 r 1 of the Rules of the Supreme Court 1971 (WA) ("Supreme Court Rules") to the effect that:
(a)The defence of the defendant filed on 3 April 2006 be struck out.
(b)The plaintiff have leave to move for judgment on certain terms and conditions.
The motion of 12 April 2006 came before Master Sanderson on 20 April 2006 and was adjourned to 27 April 2006.
On 27 April 2006, the Master further adjourned the matter to a Judge in chambers. This is the return of the motion pursuant to that order.
The facts reveal that the defence in the proceedings was filed in the Central Office of the Supreme Court on 3 April 2006. The defence bears the date 3 April 2006.
A copy of…

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.

Keep reading for free

Create a free CaseChat account to read Packham Pty Ltd v Teo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] WASC 135
Decision Date: 27 JUNE 2006

CaseChat Overview and Summary

The matter of Packham Pty Ltd versus Teo involved a dispute regarding the effectiveness of service by facsimile. Packham Pty Ltd, the plaintiff, sought to enforce a contract against Teo, the defendant, who had failed to respond to the initial summons. The case was heard in the Supreme Court of New South Wales. The central issue was whether the defence sent by facsimile to the solicitors' office within normal business hours constituted effective service under the rules of court.

The court had to determine if the service by facsimile met the criteria for effective service as per the relevant rules. Specifically, it needed to assess if the facsimile was sent to the defendant's solicitors within normal business hours and whether this method complied with the procedural requirements. The court also considered whether the circumstances of the case warranted a departure from the strict interpretation of the rules to achieve justice between the parties.

In reaching its decision, the court found that the defence was indeed served effectively. The fax was sent to the solicitors' office during normal business hours, which aligned with the procedural standards. The court emphasised that the determination of effective service must be made on a case-by-case basis, taking into account all relevant facts and circumstances. Consequently, the court ruled that the service by facsimile was valid, and the defence was accepted as duly served. The case underscores the importance of adhering to procedural rules while allowing for flexibility to achieve fairness in legal proceedings.

Orders