Roddan v Trevor
[2001] WASC 359
RODDAN & ANOR -v- TREVOR & ORS [2001] WASC 359
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 359 | |
| Case No: | CIV:2420/1999 | 19 DECEMBER 2001 | |
| Coram: | MASTER BREDMEYER | 19/12/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LINDSAY GORDON RODDAN KAY NOMINEES PTY LTD GARY JOHN TREVOR MAURICE HODGSON LYFORD RAE-LENE MARY SHORE |
Catchwords: | Writ of summons Extension of time to serve writ Reasons for delay |
Legislation: | Nil |
Case References: | Roddan & Anor v Shore [2001] WASCA 373 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
KAY NOMINEES PTY LTD
Second Plaintiff
AND
GARY JOHN TREVOR
First Defendant
MAURICE HODGSON LYFORD
Second Defendant
RAE-LENE MARY SHORE
Third Defendant
Catchwords:
Writ of summons - Extension of time to serve writ - Reasons for delay
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : Mr K Burgoyne
Second Plaintiff : Mr K Burgoyne
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Solicitors:
First Plaintiff : Kevin Burgoyne
Second Plaintiff : Kevin Burgoyne
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Roddan & Anor v Shore [2001] WASCA 373
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: The plaintiffs have applied by two notices of motion for the extension of time to serve a writ on the first defendant. The notices of motion are, of course, ex parte. Each notice is dated 18 December 2001. The first one asks that the time for service of the writ of summons filed herein on 20 December 1999 be extended from 20 December 2000 to 20 December 2001. The second notice of motion asks that the writ of summons be extended for a further six months from 20 December 2001 to 20 June 2002.
2 The applications are supported by an affidavit of Mr Roddan sworn 18 December 2001 and of Mr Harry Williams, a process server, sworn 19 December 2001.
3 As stated above, the writ of summons herein was issued on 20 December 1999. Two years have gone by, but it has not yet been served on the first defendant. What is the explanation for that delay in service? Mr Harry Williams, in his affidavit, states:
"1. I am the manager of Legal Process Services.
2. On 21st December 1999 I received instructions from the Plaintiff Mr Lindsay Roddan to effect service of a Supreme Court Writ CIV 2420 on the abovenamed three Defendants.
3. Service was effected on the Second and Third Defendants and I advised Mr Roddan accordingly.
4. A Process Server in my employ reported to me that he had attended at the 1st Defendant's business and residential addresses a number of time and there was no response to him at the residential address, being 4 Challenge Parade, City Beach and on each occasion he attended at the business address, Ferrier Hodgson, 26 St George's Terrace, Perth he was advised that Mr Trevor was absent or not available.
5. I progressively reported to Mr Roddan who authorised me to conduct surveillance at the 1st Defendant's place of business.
6. The Process Server reported to me that he had conducted discreet enquiries with the car park attendant at the 1st Defendant's place of business and obtained a
(Page 4)
- description of his vehicle and where it was usually parked. The Process Server reported to me that although he attended at the office and checked the car park on numerous occasions he did not sight either the 1st Defendant or his vehicle."
4 Mr Roddan's affidavit, in summary, is as follows. He instructed his process server, Mr Harry Williams, to serve the writ on all three defendants. Service was effected upon the second and third defendants, but service on Mr Trevor was unsuccessful. In or about late February 2000 Mr Roddan was contacted by Mr Williams who told him that service on Mr Trevor had proved unsuccessful and that he considered Mr Trevor was avoiding service. Mr Roddan authorised Mr Williams to have a member of his staff identify the car parking bay at International House used by Mr Trevor and to make enquiries to identify his motor vehicle. Mr Roddan agreed to meet the costs of a process server waiting until Mr Trevor arrived at his motor vehicle parking bay to effect service. He says: "Despite the best efforts of Mr Williams and of his staff all attempts to effect service on Trevor were unsuccessful".
5 In about July 2000 Mr Roddan instructed Mr Paul Williams, a solicitor of Williams & Co, to brief Mr Tim Stephenson of counsel to take over the conduct of this matter. That was agreed and in a letter from Mr Paul Williams to Mr Roddan dated 3 August 2000, Mr Paul Williams said that he would effect service of the writ upon Mr Trevor. I do not know what attempts, if any, were made by Mr Paul Williams to effect service on Mr Trevor. On 1 May 2001 Mr Paul Williams wrote to Mr Roddan saying that he was no longer prepared to act for the plaintiffs in this action. He ceased to act on 3 May 2001.
6 Meanwhile the action against the other defendants was not dormant. The third defendant brought an application for summary judgment under O 16 against the plaintiffs. That application was allowed by me, after a contested hearing, on 2 February 2001. The plaintiffs took my decision on appeal to the Full Court and were successful in overturning the decision in Roddan & Anor v Shore [2001] WASCA 373 delivered on 27 November 2001.
7 Mr Roddan states, in his affidavit at par 18:
"At no stage in these proceedings, to my knowledge, was the non-service of the writ on Trevor raised pursuant to Case Management Rule 4."
(Page 5)
- That rule provides for compliance with standard times and provides, inter alia, that the standard time in an action, from the issue of the writ to the entry for trial is nine months. It also provides that the Case Management Registrar has power to extend standard times, to call in parties to explain in writing why standard times have not been followed, etc.
8 Mr Roddan, in his affidavit, states that the appeal against my decision of 2 February 2001 on the third defendant's application for summary judgment, was allowed by the Full Court on 27 November 2001. He then states:
"The action effectively lay dormant pending determination of this appeal.
The limitation period has now expired for the claim against Trevor, and, as the bulk of the claim in this action is against Trevor, the Plaintiffs will suffer a great injustice should the extension of the writ not be granted."
9 The endorsement of the claim on the writ issued on 20 December 1999 against the first defendant is as follows:
"As against the First Defendant as Receiver and Manager appointed on 5 November 1991 of various real property then owned by Marblon Park Pty Ltd for:
1. An account of the chattels and or proceeds of the sale by the First Defendant (or on his behalf) of the chattels.
2. Damages for breach of fiduciary duty and or breach of the Corporations Law.
3. Damages for wrongful seizure and retention of the chattels.
4. Damages for loss and or damage of the chattels.
5. Costs."
10 A statement of claim was initially filed in July 2000 and the latest minute of proposed statement of claim of 23 February 2001 asserts the following matters, in summary, against Mr Trevor. The first plaintiff is the beneficiary of the Roddan Family Trust. The second plaintiff is the present trustee of that Trust. Between April 1998 and 27 July 1990
(Page 6)
- Marblon was the trustee of that Trust. On 27 July 1990 Marblon was replaced as trustee by Jucara Pty Ltd. On 12 December 1994 Jucara was replaced as trustee by Kay Nominees Pty Ltd, the second plaintiff.
11 The trustee was the owner of two farming properties in the Chittering area called Marblon Park and Bendemere. Those properties, in 1991, had livestock on them including stud rams and thoroughbred horses, including Hanoverian mares. There was also plant, machinery, motor vehicles, equipment and tools. The business of the Trust was farming, including grazing, wool production and horse breeding. On 5 November 1991 Western Goldsmith Pty Ltd, the mortgagee, appointed Mr Trevor as Receiver and Manager of the assets of the Trust. It is alleged that he failed to carry out his duties properly, that he was negligent, and breached his fiduciary duties in getting in the assets of the Trust and in managing the farming business. Following his appointment, he required Mr Roddan and his family to leave the farms. Despite demands by Mr Roddan, Mr Trevor failed to get anyone to attend the farms to feed, water and tend the animals properly and to ensure that the chattels on the farms were not stolen. As a result of those failures, numerous animals died of fly strike or starvation. The wool shorn in 1992 was infested with lice and could only be sold as poor quality wool because the sheep had not been drenched. The progeny of the thoroughbred horse was either stillborn or had to be destroyed soon after birth due to malnutrition. Some livestock, horses, plant, equipment and machinery were stolen and it was uninsured. The farm business was not carried on properly, or at all, incurring large losses. On or about 6 January 1992 the farm house at Marblon Park was destroyed by fire. At the time it was insured for its full replacement value of $60,000. At some time after 6 January 1992 Mr Trevor compromised the trustee's claim with the insurance company for a payment of $15,000. The plaintiffs say that compromise was unlawful and in breach of Mr Trevor's various duties as Receiver and Manager.
12 Mr Trevor continued as Receiver and Manager until August 1993. Meanwhile, on 27 January 1993, Marblon Park Pty Ltd was ordered to be wound up and the second defendant, Mr Lyford, was appointed Liquidator. Then separate acts of negligence are then pleaded against Mr Lyford which do not concern me here. As stated, Mr Trevor was appointed Receiver and Manager on 5 November 1991 and continued in that office until August 1993. The writ was issued on 20 December 1999. The statement of claim is not precise as to when Mr Trevor committed all the various acts of negligence but acts of negligence which occurred between 5 November 1991 and 20 December 1993 are time barred. I know that, it is said, he permitted the 1992 wool crop to be infected by
(Page 7)
- lice. If he neglected the other animals at the same time as he neglected the sheep, then the claims of negligence in relation to the animals in that period, are time barred. What is the point in granting an extension of time when many of the plaintiffs' claims are time barred?
13 In exercising a discretion to extend time, the court must look at the length of the delay, the reasons for the delay, the conduct of the parties and the hardship to the plaintiff by refusing the renewal or to the defendant by granting the renewal. That is not an exhaustive list of factors. See Seaman: Civil Procedure in Western Australia, par 7.1.8.
14 The applications before me are very late. They are brought within two days of the second anniversary of the issue of the writ. The reasons given for the delay are not very convincing. The process server describes his difficulties of serving Mr Trevor. He does not pinpoint the precise period when he made these attempts at service. He may be describing a period over several days or months in the period January and February 2000. I say that because he reported in February 2000 to Mr Roddan that attempts to serve Mr Trevor had been unsuccessful and he considered Mr Trevor was avoiding service. I do not have evidence of any other attempts to serve Mr Trevor in later months. It is hard to imagine that a well-known accountant and liquidator, who is often a party to litigation before this Court, and who has a business address in the Perth CBD, could not be served readily. The writ was issued by solicitors on behalf of the plaintiffs who are no doubt aware of the ability of the Court to grant an order for substituted service in an appropriate case.
15 The explanation that between February 2001, when I gave the summary judgment in favour of the third defendant, and November 2001, when the Full Court handed down its decision reversing my decision, the file was allowed to go dormant, is not a convincing one. The claims against the first defendant and the other defendants are quite distinct. The plaintiffs were already well out of time in serving Mr Trevor before that delay occurred.
16 I do not consider it fair to put any particular blame on the Case Management Registrar. The parties appeared before the Case Management Registrar on a number of occasions and no reference was made on those occasions to the plaintiffs' failure to serve the first defendant. If that was the Registrar's failure then it was shared by the solicitors involved, which included Mr Roddan's solicitor.
(Page 8)
17 I consider there would be prejudice to the first defendant in granting an extension. Six years have gone by after his appointment ceased in August 1993 before the writ was issued and now another two years have gone by before he will be served. If these applications were granted, and I was wrong on the limitation point, and he was served in the next few months, he would need to resurrect his files and search his memory as to his actions and inactions in late 1991, 1992 and 1993. I propose to dismiss these two applications. There will be no order as to costs.
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