Smith v Pacific Trading Enterprises - [1999] NSWSC 333

CITATION: Smith v Pacific Trading Enterprises [1999] NSWSC 333

CURRENT JURISDICTION: Admiralty List

FILE NUMBER(S): 51/1991

HEARING DATE(S): 8 April 1999

JUDGMENT DATE:
15 April 1999

PARTIES :

Peter Smith - First Plaintiff
Kelera Saukturaga - Second Plaintiff
Aisake Kabu - Third Plaintiff
Pacific Trading Enterprises Limited - First Defendant
Janusz Kubs - Second Defendant
Walter Edward Cooper - Third Defendant

JUDGMENT OF: Rolfe J

COUNSEL : Mr G.I. Foster - Plaintiffs
Mr T.S. Murphy - Third Defendant

SOLICITORS: Peter J. Brown as Attorney for the Plaintiffs
Carbone Anderson - Third Defendant

CATCHWORDS:

ACTS CITED: Part 7 rule 7 pursuant to s.81 of the Supreme Court Act 1970

CASES CITED: Barnes v Rust [1980] 2 NSWR 726
Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497

DECISION: Application to regularise service not made in accordance with Part 7 rule 7 pursuant to s.81 of the Supreme Court Act 1970 dismissed on the facts and in the exercise of discretion: Barnes v Rust [1980] 2 NSWR 726 and Williams v Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 considered

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I N D E X

Page
Introduction 1
The Course Of The Proceedings 4
The Resurrection Of The Proceedings 6
The Hearing Of The Notices Of Motion 9
The Relief Sought 15
Conclusion 24
Orders 25
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ADMIRALTY LIST
ROLFE J
THURSDAY, 15 APRIL 1999
51/1991 - SMITH & ORS v PACIFIC TRADING ENTERPRISES LIMITED & ORS
JUDGMENT
HIS HONOUR:
Introduction
1 On 2 May 1991 the first defendant entered into a written agreement, which was executed under seal, in Western Samoa to purchase a 54 metre fishing vessel, which was based there, from the second and third plaintiffs. The first defendant’s obligations under that agreement were guaranteed by the second and third defendants, who were its directors. The first plaintiff was a party to the agreement and referred to in it as “the Beneficiary”.
2 Clause 2 provided that the first defendant would pay for the vessel firstly, by paying the amount currently owing on her, including interest accrued to a specified date, to the Development Bank of Fiji, and secondly, by paying to the first plaintiff, or as he should direct in writing, $(A)30,000 by bank cheque. These payments were made. Thirdly, there was to be payment to the first plaintiff of:-
“.. 20% of the net proceeds of fishing operations carried out by the vessel for three consecutive fishing seasons (‘the Instalment’), commencing with the 1991/2 season. The minimum Instalment paid by the Company to the Beneficiary shall be United States $80,000 and the maximum shall be United States $180,000 if 20% of the net proceeds of fishing operations in value exceeds United States $80,000 payable by 30th June in each year.”
3 Fourthly, the first defendant was to negotiate with the first plaintiff’s creditors in Fiji, who had furnished supplies and services to the vessel:-
“And where it is deemed…

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.

Continue reading Smith v Pacific Trading Enterprises

Details

AGLC: Smith v Pacific Trading Enterprises [1999] NSWSC 333
Case: [1999] NSWSC 333
Decision Date: 15 April 1999

CaseChat Overview and Summary

In the case of Smith v Pacific Trading Enterprises, the plaintiffs, Peter Smith, Kelera Saukturaga, and Aisake Kabu, were seeking to enforce a contract for the sale of a fishing vessel against the first defendant, Pacific Trading Enterprises Limited, and the third defendant, Janusz Kubs, who had guaranteed the contract. The court was required to decide whether to permit service of the Statement of Claim outside of the jurisdiction, despite it having been filed beyond the two-year period allowed by the rules. The third defendant argued that he had not been served with the Statement of Claim, and that the delay in serving him had caused him significant prejudice.

The court considered the discretion under s.81 of the Supreme Court Act 1970 to remedy irregularities in service and found that it could only be exercised if there would be no substantial prejudice to the defendant. The court found that the third defendant had suffered substantial prejudice due to the delay in serving him, including the loss of relevant documents and the inability to inspect the vessel in question. The court also noted that the plaintiffs had not provided any evidence as to why they had not pursued the proceedings against the third defendant in a timely manner. Given the significant prejudice to the third defendant, the court decided not to exercise its discretion to remedy the irregularity in service.

The court dismissed the plaintiffs' Notice of Motion with costs, including the third defendant's costs of his Notice of Motion. The court also noted that there were questions about the extent to which the third defendant was liable for the damages awarded against the first defendant, given that the award included an element of pure damages, and there was no evidence before the court as to how the damages were assessed.

Orders