Provident Capital Ltd (Receivers and Managers Appointed)(in liq) v Quaid Partners Pty Ltd
[2013] NSWSC 645
•08 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Provident Capital Ltd (Receivers and Managers Appointed)(in liq) v Quaid Partners Pty Ltd [2013] NSWSC 645 Hearing dates: 8 May 2013 Decision date: 08 May 2013 Before: McCallum J Decision: Orders in accordance with Consent Order
Catchwords: PROCEDURE - application seeking extension of time in which to serve originating process - whether discretion enlivened Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Interlocutory applications Parties: Provident Capital Ltd (Receivers and Managers Appointed)(in liq) (plaintiff)
Quaid Partners Pty Ltd (defendant)Representation: Counsel:
J Hynes (plaintiff)
No appearance for the defendant
Solicitors:
Henry Davis York (plaintiff)
File Number(s): 2012/353605 Publication restriction: Not to be published until after August 2013
Judgment - ex tempore
HER HONOUR: These are proceedings in professional negligence brought by Provident Capital Limited (Receivers and Managers Appointed)(in liq), against a valuer arising out of the alleged over- valuation of property intended to be provided as security for a loan by Provident.
The originating process in the proceedings is a statement of claim filed on 13 November 2012. Pursuant to r 6.2 of the Uniform Civil Procedure Rules 2005, the statement of claim is valid for service only for a period of six months after that date. That period expires next Monday.
The statement of claim has not been served to date. The application before the Court is a notice of motion filed in court today seeking an extension of the period for which the originating process is valid for service until 30 August 2013.
The circumstances in which the receiver has found it necessary to make that application are complex. A company associated with the plaintiff company, PCL Holdings Pty Limited, claims to have taken an assignment of the loan in respect of which the valuer provided the valuation. I am informed by Mr Hynes, who appears for the plaintiff, that PCL Holdings Pty Limited, although related to the plaintiff, may be said to hold or represent different interests, in that it is associated with the directors of the plaintiff company. It appears the receivers have among their many complex tasks the task of gaining further information from the directors about a number of matters, including the circumstances of the purported assignment.
If the assignment is valid, the plaintiff in these proceedings may have no cause of action to prosecute, or may alternatively have a legal cause of action, but be liable in equity to account for any remedy obtained to the alleged assignee. Those matters remain to be investigated by the receiver. Examinations of the directors are scheduled for June which will address those issues, among others.
A separate difficulty is that, prior to the appointment of the receivers, the plaintiff took steps towards commencing proceedings of the kind that have now been commenced, including by writing to the valuers sending them a draft statement of claim; receiving a request for further information in respect of the claim; and in due course being informed as to an address for service should they wish to commence proceedings, a threat then made evidently seriously. For reasons not apparent to those instructing Mr Hynes, the matter rested there and proceedings were not commenced.
The receiver wishes understandably to investigate whether there was any reason for the failure to commence proceedings as threatened at that point which he might wish to consider in determining whether to proceed with the present claim.
For all of those reasons, the receiver seeks the extension. It is a matter of concern in considering whether to grant the extension that the proceedings were commenced almost on the sixth anniversary of the date on which the valuation was provided. Plainly, time is running against the plaintiff in respect of further indulgences because of the obvious prejudice to the valuers if the claim is allowed to be continued against them after too long a period of time has elapsed.
However, Mr Hynes has reminded me of the provisions of r 12.11, which provide some protection to the proposed defendant in that respect, giving power to the Court in an appropriate case to discharge any order extending the validity for service of an originating process.
In referring to that rule, I do not mean to suggest that there is before me any indication that such an order should be discharged. On the contrary, I am satisfied that it is appropriate to extend the period for service on the information presently available to the Court.
For those reasons I make the following orders:
(1) I grant leave to file the notice of motion in court.
(2) I note that the plaintiff through its counsel, Mr Hynes, gives an undertaking to pay any fee payable in respect of the filing of the notice of motion.
(3) I make orders one to five in the form of order handed up by Mr Hynes which I will sign and place with the papers.
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Decision last updated: 04 November 2013
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