Smith v Blackberry Nominees Pty Ltd - [2022] WASC 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SMITH -v- BLACKBERRY NOMINEES PTY LTD [2022] WASC 225
CORAM:   PRINCIPAL REGISTRAR MCDONALD
HEARD:   30 JUNE 2022
DELIVERED          :   8 JULY 2022
PUBLISHED           :   8 JULY 2022
FILE NO/S:   CIV 2961 of 2018
BETWEEN:   NATHAN DUDLEY SMITH
Plaintiff
AND
BLACKBERRY NOMINEES PTY LTD
First Defendant
AARON DUDLEY SMITH
Fourth Defendant
LYNTON DUDLEY SMITH
Plaintiff by counterclaim
NATHAN DUDLEY SMITH
Defendant by counterclaim

Catchwords:

Practice and procedure – Application for extension of time to comply with springing order – Action dismissed and judgment entered – Preliminary issue whether power to extend time or whether appeal necessary – Rules of the Supreme Court 1971 (WA) O 3 r 5

Legislation:

Rules of the Supreme Court 1971 (WA), O 3 r 5

Result:

Finding made on preliminary issue

Category: B

Representation:

Counsel:

Plaintiff	:	B J Dalitz
First Defendant	:	P T Arns
Fourth Defendant	:	A M Prime
Plaintiff by counterclaim	:	P T Arns
Defendant by counterclaim	:	B J Dalitz

Solicitors:

Plaintiff	:	Bailiwick Legal
First Defendant	:	Arns & Associates
Fourth Defendant	:	Anthony Prime Legal Services
Plaintiff by counterclaim	:	Arns & Associates
Defendant by counterclaim	:	Bailiwick Legal

Cases referred to in decision:

Avsar v Westland Healthcare Ltd [2007] WASCA 28
Bailey v Marinoff (1971) 125 CLR 529
Bevan v Bevan [2016] WASC 7
Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381
Brocx v Hughes [2008] WASC 34
CVW Group Holdings Pty Ltd v Addison [2011] WASC 267
FAI Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Lifelong Investments Pty Lt v Karageorge [2008] WASC 86
Marks v Emmanuel George Doukidis [2005] WASC 216
Melville v East End Holdings [2003] WASCA 133
Pollard v Incorporated Nominal Defendant [1972] VR 955
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd [2010] WASC 351
Skahill v Kestral Holdings Pty Ltd [2000] WASC 32
Skahill v Kestral Holdings Pty Ltd [2000] WASCA 185
Sommerville Kalgoorlie Pty Ltd v Gullen Pty Ltd [2022] WASC 115

PRINCIPAL REGISTRAR McDONALD:

Application

By summons dated 17 June 2022 the plaintiff applies for an extension of time in which to comply with two springing orders made on 22 September 2021 and 28 October 2021. The summons was returned on 30 June 2022 for directions and no issue was taken by the defendants that service of the application was effected on 29 June 2022.

Background

On 22 September 2021 I made orders that, unless within 21 days the plaintiff give discovery, the plaintiff's action against the second and third defendants be dismissed and judgment be entered on the second defendant's counterclaim with damages to be assessed. Service of the orders was effected on 28 October 2021 by way of substituted service.
On 28 October 2021 I made a further springing order for discovery against the plaintiff, this time on the application of the fourth defendant. The orders were served by way of substituted service on 6…

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: [2022] WASC 225
Decision Date

CaseChat Overview and Summary

In Smith v Blackberry Nominees Pty Ltd, the plaintiff sought to challenge the legality of a decision made by the defendants regarding property. The case was heard in the Supreme Court of Western Australia. The central dispute revolves around the interpretation and application of springing orders within the context of the Supreme Court Rules and the plaintiffs' ability to seek extensions of time for compliance after judgment has been entered.

The legal issues addressed by the court included whether the time to comply with a springing order could be extended after judgment had been entered by its automatic operation, and whether the correct procedure for such applications involved an appeal or a direct application under O 3 r 5. The plaintiff cited cases such as Melville v East End Holdings Inc and Skahill v Kestral Holdings Pty Ltd to support their argument that time can be extended even after judgment has been entered, while the defendants argued for a distinction based on the timing of the application.

The court considered the relevant case law and determined that the principles established in Melville v East End Holdings Inc applied to the current case, allowing for the extension of time even after judgment had been entered. The court also noted the Master's view in Skahill v Kestral Holdings Pty Ltd that applications for extensions of time should ordinarily be made to the Case Management Registrar who issued the original springing order. The court concluded that the plaintiff's application was properly made and should be considered under O 3 r 5.

The court granted the plaintiff leave to appeal and found in their favour, allowing the extension of time for compliance with the springing order. The court's decision was based on the precedent set by Melville v East End Holdings Inc and the principle that the Case Management Registrar should ordinarily handle applications for extensions of time.

Orders

Orders of the court

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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

The plaintiff relies on those cases which have applied FAI General Insurance Co Ltd v Southern Cross Exploration NL to resolve the contended ambiguity about its application to this case. In Melville v East End Holdings Inc,[14] the Court of Appeal held FAI General Insurance Co Ltd v Southern Cross Exploration NL provides authority to extend time for compliance with a springing order even after judgment has been entered by its automatic operation.[15] In Melville v East End Holdings Inc, the Court of Appeal upheld an appeal against the decision to refuse to extend time to comply with a springing order pursuant to O 3 r 5 with the consequence that judgment was entered accordingly. [14] Melville v East End Holdings Inc [2003] WASCA 133.[15] Melville v East End Holdings Inc [16] - [17]. Counsel for the second and third defendants distinguished Melville v East End Holdings Inc on the basis that the application to extend time to comply with the springing order at first instance was brought before judgment had been entered. Therefore, the decision does no more than confirm there is power to enlarge time after the time for compliance with a springing order has expired. Skahill v Kestral Holdings Pty Ltd,[16] involved a similar dispute to this application. A registrar made a springing order against the plaintiffs which was not complied with and judgment was entered for the defendants some five days after the order sprung. The plaintiffs appealed the decision of the registrar to make a springing order whereas the defendants contended that, properly characterised, the plaintiffs were seeking an extension of time to comply with the springing order and they should be proceeding under O 3 r 5. The Master held:[17]This is a problem which has arisen in the past and it is not entirely clear from the Rules as to which is the proper way to proceed. In my view, where a party seeks an extension of time to comply with a springing order, that application ought ordinarily be made to the Case Management Registrar … in my view the power to extend time in relation to a case management direction is available under O 29A r 12(c) … it is preferable if the Case Management Registrar who has made the springing order first deals with any application for an extension of time. The familiarity of the Case Management Registrar with the file puts the Registrar at an advantage in dealing with an application at first instance.[16] Skahill v Kestral Holdings Pty Ltd [2000] WASC 32.[17] Skahill v Kestral Holdings Pty Ltd [6]. On an application for leave to appeal, the Court of Appeal noted in Skahill v Kestral Holdings Pty Ltd:[18]There was some controversy whether it was proper for the plaintiffs to proceed by way of appeal or whether they were seeking an extension of time within which to comply with the springing order. The Master seems to have been of the view that the proper course was to apply under O 3 r 5(2) for an extension of time: see FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283 - 84. Nothing turned on the controversy for the purpose of the Master disposing of the application.[18] Skahill v Kestral Holdings Pty Ltd [2000] WASCA 185 [4].