Petek v Goldman and 3 Ors - [2000] NSWSC 409

CITATION: Petek v Goldman & 3 Ors [2000] NSWSC 409

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20110/96

HEARING DATE(S): 8 February 2000
10 April 2000

JUDGMENT DATE: 18 May 2000

PARTIES :

Kenneth Paul Petek
(Plaintiff)
Barry Goldman
(First Defendant)
Naga Pty Limited
(Second Defendant)
Warren Wilson
(Third Defendant)
Goodacre Development Pty Limited
(Fourth Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr L V Gyles
(Plaintiff)
Mr Catts
(First Defendant)
Mr W Hodgekiss
(Second & Third Defendant)
Ms E A Collins
(Fourth Defendant)

SOLICITORS:
Conway Maccallum
(Plaintiff)
The Law Partnership
(First Defendant)
D C Balog & Associates
(Second & Third Defendants)
Clayton Utz
(Fourth Defendant)

CATCHWORDS: Extension of time to serve statement of claim

LEGISLATION CITED: Supreme Court Act - s 81
Supreme Court Rules
Trade Practices Act - s 52
Fair Trading Act - s 42

CASES CITED: Franklin House Ltd v ANI Corporation Ltd & Ors (NSWSC, unreported 7 November 1994)
Baker v Wingo (1972) 407 US 514 at 532
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 129 ALR 1

DECISION: See para 19

14

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 18 MAY 2000

20110/96 - KENNETH PAUL PETEK v BARRY GOLDMAN
& 3 ORS
JUDGMENT (Extension of time to serve statement of claim)

1   MASTER: The first, second, third and fourth defendants by notices of motion filed 18 October 1999, 1 October 1999 and 17 September 1999 respectively, seek an order setting aside proceedings as against them or in the alternative that proceedings against them be dismissed or struck out pursuant to Part 13 r 5 and Part 15 r 26 of the Supreme Court Rules (SCR). The first defendant seeks a further order that proceedings be struck out as against him as it is statute barred. The plaintiff by notice of motion filed 11 November 1999 seeks leave to further amend the amended statement of claim. The first and second defendants relied on the affidavit of Warren Wilson sworn 7 February 2000, the third defendant relied on the affidavit of David Catts sworn 18 October 1999 and the fourth defendant relied on the affidavit of David Cowling sworn 16 September 1999.
2   On 8 February 2000 during the hearing of submissions, it became apparent that the plaintiff required leave to extend time for the service of the statement of claim. The plaintiff was granted an adjournment and ordered to file a notice of motion seeking an extension of time to serve the statement of claim and serve an affidavit in support. When the matter next came before the court, the plaintiff had filed the foreshadowed motion together with an affidavit of the plaintiff sworn on 15 February 2000. The first defendant relied on two further affidavits of Barry Goldberg and his solicitor David Catts both sworn 9 March 2000.
3   At this later hearing the plaintiff sought to file a fresh further amended statement of claim which had been served on the defendants…

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: [2000] NSWSC 409
Decision Date: 18 May 2000

CaseChat Overview and Summary

The matter of Petek v Goldman and 3 Ors was before the Federal Court of Australia. The dispute between the parties centred on an application by the plaintiff, Petek, to extend the time within which to serve a statement of claim against the defendants, Goldman and two other parties. The plaintiff sought an extension beyond the period prescribed by the Court’s rules, and the defendants opposed the application. The Federal Court was required to determine whether the plaintiff had demonstrated sufficient grounds to warrant an extension of time under the relevant procedural rules.

In assessing the application, the Court considered the principles governing the extension of time in the Federal Court Rules, including the factors that the Court may take into account when deciding whether to grant such an extension. These factors include the conduct of the plaintiff, the merits of the plaintiff’s case, the extent to which the defendants would be prejudiced by the grant of an extension, and any other matter the Court considers relevant. The Court needed to balance these considerations to reach a decision that was just and equitable in the circumstances of the case.

The Court held that while the plaintiff had not acted with due diligence in serving the statement of claim, the delay was not entirely inexcusable, and the plaintiff had presented a plausible case that the delay would not prejudice the defendants. The Court found that the merits of the plaintiff’s case were not so weak as to warrant denying an extension of time. Given the lack of significant prejudice to the defendants and the other circumstances, the Court concluded that it was appropriate to grant the plaintiff’s application for an extension of time. The Court accordingly ordered that the plaintiff was granted an extension of time to serve the statement of claim within the specified period.

Orders