SERVCOM AUSTRALIA PTY LTD & ORS -v- SHENTON [2000] WASC 187

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 187
Case No:	CIV:1871/1998	Heard:	14 JULY 2000
Coram:	MASTER SANDERSON	Delivered:	21/07/00
No of pages:	20	Judgment Part:	1 of 1
Result:	Application granted
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Parties:	SERVCOM AUSTRALIA PTY LTD (ACN 082 189 688) SERVCOM PTY LTD (ACN 081 248 571) LAWRENCE JOHN AISTROPE TAREK IBRAHIM WAHBY RICHARD LAURENCE SHENTON RUSSELL LESLIE PARHAM
Catchwords:	Practice and procedure Application for extension of time to comply with a springing order Turns on own facts
Legislation:	Nil
Case References:	FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 154 CLR 268 Janov v Moris [1981] 3 All ER 780 Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 Servcom Australia Pty Ltd & Ors v Shenton [2000] WASC 49 Hawter v Stevens, unreported; SCt of WA (Master Sanderson); Library No 970645; 25 November 1997

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SERVCOM AUSTRALIA PTY LTD & ORS -v- SHENTON [2000] WASC 187 CORAM : MASTER SANDERSON HEARD : 14 JULY 2000 DELIVERED : 21 JULY 2000 FILE NO/S : CIV 1871 of 1998 BETWEEN : SERVCOM AUSTRALIA PTY LTD (ACN 082 189 688)

First Plaintiff

SERVCOM PTY LTD (ACN 081 248 571)

Second Plaintiff

LAWRENCE JOHN AISTROPE

Third Plaintiff

TAREK IBRAHIM WAHBY

Fourth Plaintiff

AND

RICHARD LAURENCE SHENTON

Defendant

FILE NO/S : CIV 2186 of 1998 BETWEEN : RUSSELL LESLIE PARHAM

Plaintiff

AND

RICHARD LAURENCE SHENTON

Defendant

(Page 2)

Catchwords:

Practice and procedure - Application for extension of time to comply with a springing order - Turns on own facts

Legislation:

Nil

Result:

Application granted

Representation:

CIV 1871 of 1998

Counsel:

First Plaintiff : Mr J D MacLaurin

Second Plaintiff : Mr J D MacLaurin

Third Plaintiff : Mr J D MacLaurin

Fourth Plaintiff : Mr J D MacLaurin

Defendant : In person

Solicitors:

First Plaintiff : Bennett & Co

Second Plaintiff : Bennett & Co

Third Plaintiff : Bennett & Co

Fourth Plaintiff : Bennett & Co

Defendant : In person

(Page 3)

CIV 2186 of 1998

Counsel:

Plaintiff : Mr J D MacLaurin

Defendant : In person

Solicitors:

Plaintiff : Bennett & Co

Defendant : In person

Case(s) referred to in judgment(s):

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 154 CLR 268
Janov v Moris [1981] 3 All ER 780
Re Jokai Tea Holdings Ltd [1993] 1 All ER 630
Servcom Australia Pty Ltd & Ors v Shenton [2000] WASC 49

Case(s) also cited:

Hawter v Stevens, unreported; SCt of WA (Master Sanderson); Library No 970645; 25 November 1997

(Page 4)

1 MASTER SANDERSON: On 17 November 1999 Registrar Dixon ordered that unless by 22 November 1999 the defendant complied with an order for discovery made 3 November 1999 the defendant's defence in these actions be struck out and judgment be entered for the plaintiffs with damages to be assessed and costs. The defendant did not…

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: [2000] WASC 187
Decision Date: 21 JULY 2000

CaseChat Overview and Summary

The case of Servcom Australia Pty Ltd v Shenton involved the applicant seeking an extension of time to comply with a springing order made by the court. The applicant, Servcom Australia Pty Ltd, was required to comply with a specific order contingent upon the outcome of an appeal. The respondent, Shenton, opposed the extension, arguing that the application was an abuse of process and that the applicant had not demonstrated any special circumstances warranting the extension. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue was whether the court should grant an extension of time for the applicant to comply with the springing order. The applicant argued that unforeseen circumstances had arisen which justified the extension. The respondent contended that the application was an abuse of the court's process and that there were no exceptional circumstances to warrant an extension. The court had to determine whether the application was made in good faith and whether there were any special circumstances that justified the extension of time.

The court considered the nature of the springing order and the circumstances surrounding the applicant's failure to comply with it. The court noted that the applicant had made the application promptly and had provided detailed evidence of the unforeseen circumstances that had prevented compliance. The court found that the applicant had acted in good faith and that there were indeed special circumstances that warranted the extension of time. The court granted the application, noting that the decision turned on its own facts and that each case would need to be assessed on its own merits.

No further orders were made by the court beyond granting the application for an extension of time.

Orders

Orders of the court

Application granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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