Petek v Goldman - [2001] NSWSC 857

CITATION: Petek v Goldman & Ors [2001] NSWSC 857

FILE NUMBER(S): SC 20110/96

HEARING DATE(S): 13/3/2001

JUDGMENT DATE:
28 September 2001

PARTIES :

Kenneth Paul Petek- Appellant
Barry Goldman- First Respondent
Naga Pty Limited- Second Respondent
Warren Wilson- Third Respondent
Goodacre Developments Pty Limited- Fourth Respondent

JUDGMENT OF: Dowd J at 1

LOWER COURT
JURISDICTION : Supreme Court (Master)

LOWER COURT
FILE NUMBER(S) : 20110/96

LOWER COURT
JUDICIAL OFFICER : Harrison M

COUNSEL : Mr GA Seib- Appellant
Ms EA Collins- Fourth Respondent

SOLICITORS: Mr R Gorick- Appellant
Mr DJ Catts- First Respondent
Mr DC Balog- Second & Third Respondent
MR DP Cowling- Fourth Respondent

CATCHWORDS: Extension of time to serve Statement of Claim - Appeal from decision of Master

LEGISLATION CITED: Fair Trading Act 1987
Supreme Court Act 1970
Trade Practices Act 1974

CASES CITED: Baker v Wingo (1972) 407 US 514.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
Franklin House Ltd v ANI Corporation Ltd & Ors (Unreported, NSWSC, 7 November 1994).
Holt v Wynter (2000) 49 NSWLR 128.
House v The King (1936) 55 CLR 499.
Jackamurra v Krakouer (Unreported, Supreme Court of WA (Full Court), 7 August 1996).
Jackamurra v Krakouer (1998) 195 CLR 516.
John Edmonson VC Memorial Club Co-Op Limited v Bartsch [1999] NSWCA 348.
Morrison and Another v Judd (Unreported, NSWCA, 10 October 1995).
Petek v Goldman & 3 Ors [2000] NSWSC 409.

DECISION: 1. Appeal dismissed; 2. The Notice of Motion seeking to appeal the decision of the Learned Master be dismissed; and 3. Appellant to pay the respondents' costs.

28 September 2001

Judgment

The appellant, Kenneth Paul Petek, sought in this appeal to set aside orders of Harrison M in Petek v Goldman & 3 Ors [2000] NSWSC 409, first dismissing the appellant’s Amended Statement of Claim and a notice of Motion filed on 15 February 2001 and secondly an order for costs, and in lieu thereof, the appellant sought the following orders:

SCR

Supreme Court Act

SCR

2 On 1 August 1990, a lease was entered into between Bunutu Pty Ltd, (‘Bunutu’) as lessor, and, KPP Enterprises Pty Ltd (‘KPP’), as lessee, the first plaintiff in the appellant’s Statement of Claim dated 7 February 1996, over the premises lot Z/Strata Plan 35561 (‘the premises’), for a period of five years. The appellant alleged that the first respondent, Barry Goldman, represented to the appellant, that 90% of the commercial complex known as “Central Park”, of which it formed part, had been leased, and the remainder of the complex would be leased by the time the company…

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 Petek v Goldman 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: [2001] NSWSC 857
Decision Date: 28 September 2001

CaseChat Overview and Summary

The matter of Petek v Goldman concerned an application to extend the time to serve a Statement of Claim. The plaintiff, Petek, sought to serve a Statement of Claim beyond the statutory limitation period, which had already elapsed. The application was heard by the Supreme Court of Victoria, which was exercising its appellate jurisdiction over a decision made by the Master of the Court. The defendant, Goldman, opposed the application, arguing that the extension should not be granted as it would unfairly prejudice their right to a fair trial.

The central legal issue before the court was whether the plaintiff's application for an extension of time should be granted. This involved assessing the criteria set out in the relevant legislation and case law, including the plaintiff's conduct in failing to serve the Statement of Claim within the statutory period, the prospects of success of the plaintiff's claim, and the extent to which the defendant would be prejudiced if the extension were granted. The court had to balance the plaintiff's right to access to justice against the defendant's right to a fair trial and the potential for prejudice.

The court held that the application for an extension of time should not be granted. The Master had correctly found that the plaintiff's conduct in failing to serve the Statement of Claim within the statutory period was inexcusable. The court found that the plaintiff had not demonstrated sufficient grounds for relief under the relevant statute. The plaintiff's prospects of success on the merits of the claim were not compelling enough to warrant granting the extension, and the defendant would be significantly prejudiced if the extension were granted. The court concluded that the Master's decision was correct and dismissed the plaintiff's appeal.

Orders