SDC Kennedy & Bird v Kerry O'Brien; Kennedy & Bird (Builders) v Kerry O'Brien

The parties to this matter were SDC Kennedy & Bird and Kennedy & Bird (Builders) (the appellants) and Kerry O'Brien (the respondent). The dispute concerned an application by the respondent to extend the time within which to commence proceedings against the appellants. The decision under appeal was made by a judge of the Supreme Court of Victoria.

The primary legal issue before the Full Court of the Supreme Court of Victoria was whether the primary judge erred in principle by granting an extension of time to the respondent to commence proceedings, despite finding that such an extension would cause "not insignificant prejudice" to the appellants. The court was required to consider the balance of prejudice between the parties when determining whether to grant an extension of time under the relevant limitation of actions legislation.

The Full Court allowed the appeal, finding that the primary judge had erred in principle in their assessment of prejudice. The court held that the finding of "not insignificant prejudice" to the appellants should have weighed more heavily against granting the extension. The court's reasoning emphasised that while prejudice to the plaintiff is a relevant consideration, it cannot outweigh substantial prejudice to the defendant when exercising the discretion to extend a limitation period. The legal principle applied was that the discretion to extend time is not to be exercised lightly, particularly where significant prejudice to the defendant would result.

Leave to appeal was granted, and the appeals were allowed. The orders of the primary judge granting the extensions of time were set aside, and the applications for extension were refused.