Rich v Packer; Rich v Long - [2007] NSWSC 1290

CITATION: Rich v Packer & Ors; Rich v Long & Ors [2007] NSWSC 1290

HEARING DATE(S): 12/11/07

JUDGMENT DATE :
12 November 2007

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 12 November 2007

DECISION: Time for service of originating process extended

CATCHWORDS: PROCEDURE - time for service of originating process - extension of time - matters relevant to decision to extend time

LEGISLATION CITED: Uniform Civil Procedure Rules 2005, rules 1.12, 6.2(4)(a)

CASES CITED: Buzzle Operations Pty Ltd v Breirl [2007] NSWSC 922
FAI Insurances Ltd v Mainprize [2006] NSWSC 554
Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597
Zhang v Semin [2007] NSWSC 229

PARTIES: (1) John David Rich - First Plaintiff
Lifecell Pty Limited - Second Plaintiff
Kalara Investments Pty Limited - Third Plaintiff
Geravale Holdings Pty Limited - Fourth Plaintiff
James Douglas Packer - First Defendant
Peter Wilson Yates - Second Defendant
Publishing and Broadcasting Limited - Third Defendant
Consolidated Press Holdings Limited - Fourth Defendant
Lachlan Keith Murdoch - Fifth Defendant
Peter Macourt - Sixth Defendant
News Limited - Seventh Defendant
One.Tel Limited - Eighth Defendant
Steven John Sherman - Ninth Defendant
Andrew Arthur Pike, John Thomas Nestel and the parties in the Schedule to the Amended Statement of Claim trading as Freehills
(2) John David Rich - First Plaintiff
Lifecell Pty Limited - Second Plaintiff
Kalara Investments Pty Limited - Third Plaintiff
Geravale Holdings Pty Limited - Fourth Plaintiff
Brian James Long and the persons referred to in Schedule B to the statement of claim trading as Ernst & Young - First Defendant

FILE NUMBER(S): SC (1) 2756/07; (2) 2921/07

COUNSEL: Mr D.L. Williams SC - Plaintiffs

SOLICITORS: Thompson Eslick - Plaintiffs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY 12 NOVEMBER 2007

2756/07 JOHN DAVID RICH & 3 ORS v JAMES DOUGLAS PACKER & 9 ORS
2921/07 JOHN DAVID RICH & 3 ORS v BRIAN JAMES LONG & 83 ORS

JUDGMENT

1 In each of proceedings 2756/07 and 2921/07, four plaintiffs, who are the same in each case, sue different defendants. There is in each proceeding an application under rule 1.12 of the Uniform Civil Procedure Rules 2005 for an extension of the time prescribed by rule 6.2(4)(a) as the time for which originating process is valid for service.

2 The plaintiffs in each case are Mr J. D. Rich and interests associated with him. The defendants in 2756/07 are Publishing and Broadcasting Limited, News Limited and others. The defendants in 2921/07 are the partners of Ernst & Young. In each case a statement of claim or an amended statement of claim was filed on 28 May 2007, with the result that the period of six months for which originating process is valid for service under rule 6.2(4)(a) will expire on or about 28 November 2007.

3 The plaintiffs in each case seek an extension of the time for which the originating process is valid for service so that the time will expire 12…

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: [2007] NSWSC 1290
Decision Date: 12 November 2007

CaseChat Overview and Summary

The respondents, Rich and Long, appealed against orders made by the primary judge in relation to extensions of time for service of originating process in the Supreme Court. The primary judge had granted extensions of time to the appellants, Rich and Packer, to serve originating process in proceedings against the respondents. The respondents argued that the primary judge erred in granting the extensions of time and in the factors he took into account in making his decision. The appellants cross-appealed, contending that the primary judge should have granted an earlier extension of time.

The court had to determine whether the primary judge had exercised his discretion in making the orders in relation to extensions of time appropriately, and whether the primary judge had taken into account all relevant matters in making the orders. The court also had to consider whether the primary judge had erred in law in making the orders. The court had to consider the relevant principles and factors in relation to extensions of time for service of originating process, including the conduct of the parties, the impact of the delay on the other party, and the likelihood of prejudice to the other party if the extension was granted.

The court found that the primary judge had exercised his discretion appropriately in making the orders in relation to extensions of time. The court found that the primary judge had taken into account all relevant matters in making the orders, and had not erred in law in making the orders. The court found that the primary judge had considered the conduct of the parties, the impact of the delay on the other party, and the likelihood of prejudice to the other party if the extension was granted. The court also found that the primary judge had appropriately balanced the competing considerations in making the orders. The court dismissed the respondents' appeal and the appellants' cross-appeal.

The court made no orders as to costs.

Orders