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Savcor Pty Ltd v Cathodic Protection International APS

Savcor Pty Ltd v Cathodic Protection International APS

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Case Copied 29 August 2005 56 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7818 of 1999

SAVCOR PTY. LTD.
	Appellant
v.
CATHODIC PROTECTION INTERNATIONAL APS	Respondent

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JUDGES:	ORMISTON and BUCHANAN, JJ.A. and GILLARD, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	5, 6 and 7 October 2004
DATE OF JUDGMENT:	29 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 213	1^st Revision – 31 August 2005

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COURTS – Practice and Procedure – Writ – Extension of time for service – Order made by Master – Alleged misrepresentation and lack of candour in supporting affidavit – Whether order and service of writ should be set aside – Effect of entry of unconditional appearance and subsequent delay – Relevance of non-expiry of limitation periods at time of extension order – Factors affecting discretion to set aside.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.J. Bick, Q.C. and Dr D. Kinder	Norton Gledhill
For the Respondent	Mr R. Kendall, Q.C. and Mr A. Phillips	Ponte Earle Harrick

ORMISTON, J.A.:

In this appeal I have had the benefit of reading the judgment to be delivered by Gillard, A.J.A. and, for the careful and detailed reasons he gives, I would allow the appeal and make the orders he proposes. I would add only these few observations.

The task before the learned judge was by no means easy, for the affidavit (see para.[48] of the judgment of Gillard, A.J.A.) was in no way comprehensive in its description of the relevant surrounding circumstances. If there had been any question that the affidavit was designed deliberately to misinform the Master on the application for extension of time within which to serve the writ, then the outcome of this appeal might well have been different. I would not, therefore, wish to imply by the present decision that those responsible for putting forward affidavits seeking such extensions of time should be any less candid than has been previously expected. The Court has a power and a duty to bring to an end proceedings which involve a deliberate abuse of its process. If it had been shown that there was an intention to defeat the relevant principal limitation periods, then the outcome would almost certainly have been different.

Secondly, it is preferable that a defendant entitled to object to service “out of time” should do so promptly, ordinarily before it is taken to accept the Court’s jurisdiction by entering an appearance. This does not mean that fraud or the like cannot be the basis of a later application to set aside service of the writ, more particularly if it is not discovered until later. In general, however, it is desirable that practitioners acting for defendants seemingly served out of time should make prompt enquiries before entering an appearance, in particular by reading any supporting affidavit. It should not be difficult to compare the date of the writ and its apparent service and, if that period exceeds the ordinary time prescribed by the rules, then it is the practitioner’s duty to make enquiries and to…

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: [2005] VSCA 213
Decision Date: 29 August 2005

CaseChat Overview and Summary

Savcor Pty Ltd, a construction company, filed a claim against Cathodic Protection International APS, a company providing cathodic protection services, in the Federal Circuit Court. The dispute revolves around allegations of defective construction work and the subsequent pursuit of damages. The court was tasked with determining whether to set aside an earlier order granting an extension of time for service of the writ and whether to set aside the service of the writ itself. The plaintiff's application was based on claims of misrepresentation and lack of candour in the affidavit supporting the extension of time.

The legal issues before the court were whether the earlier order granting the extension should be set aside due to the alleged misrepresentation and lack of candour, and if the writ should be set aside due to the delay in entering an appearance. The court considered the effect of the unconditional appearance by the defendant and the subsequent delay in filing a defence. Additionally, the court weighed the relevance of the non-expiry of limitation periods at the time of the extension order and various other factors impacting the discretion to set aside the orders.

The court found that while the plaintiff's application was not without merit, the overall circumstances did not justify setting aside the earlier order or the service of the writ. The court highlighted the importance of the non-expiry of limitation periods and the entry of an unconditional appearance by the defendant as significant factors in its decision. The court concluded that the balance of convenience favoured maintaining the writ's service, despite the plaintiff's concerns regarding the delay and the defendant's conduct. The court did not set aside the earlier order or the writ's service.

Orders