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Smith v Shilkin (No 2)

Smith v Shilkin (No 2)

Case [2019] NSWSC 969 1 August 2019

Jurisdiction

Limitation Periods

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Smith v Shilkin (No 2) [2019] NSWSC 969
Hearing dates: 11 and 12 June 2019
Date of orders: 01 August 2019
Decision date: 01 August 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
Counsel are invited to agree upon a form of orders to give effect to these reasons and are directed to provide to the Court, within 14 days, in hard and soft copy, short minutes of order, for consideration. When these reasons are delivered, the matter of the costs of the two notices of motion will be listed for hearing and for the determination of any dispute as to the form of orders.

Catchwords: CIVIL PROCEDURE – Commencement of proceedings – Statement of claim – Extension of validity of statement of claim for service – Uniform Civil Procedure Rules – Order extending validity made ex parte by Judge of the Court – Whether ex parte order should be discharged under UCPR r 12.11(1)(e) – Whether service of the Statement of Claim should be taken to have been effected upon each of the Defendants.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Limitation Act 1969 (NSW)
Service and Execution of Process Act 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abela v Baadarani [2013] 1 WLR 2043; [2013] UKSC 44
Agricultural & Rural Finance Pty Limited v Kirk & Anor (2011) 82 ACSR 390; [2011] NSWCA 67
Amadeaus Investment Ltd v Dr Lin Kao Kun [2019] HKCFI 797; [2019] HKCU 1186
Aristocrat Technologies Australia Pty Limited & Ors v Re Allam & Ors (2016) 327 ALR 595; [2016] HCA 3
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61
Bagshaw v RTS Super Pty Ltd [2019] WASCA 85
Bank of Swaziland v Hahn [1989] 1 WLR 506
Barclays Bank of Swaziland v Hahn [1989] 1 WLR 506
Barton v Wright Hassall LLP [2018] 1 WLR 1119
Battersby v Anglo American Oil Co Limited [1945] KB 23
Bobolas v Waverley Council [2016] (2016) 92 NSWLR 406; NSWCA 139
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Choy v Tiaro Coal Ltd (in liq) (2018) 364 ALR 554; [2018] NSWCA 205
Clack v Murray [2017] WASCA 88
Combe v Ziade [2000] NSWSC 848
Dagnell v J L Freedman & Co [1993] 1 WLR 388
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257
Hunter v Hanson [2014] NSWCA 263
In the matter of Salfa Pty Limited (in liquidation) (ACN 082 308 101) [2014] NSWSC 1493
Kaki v National Private Air…

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 Shilkin (No 2)

Details

AGLC: Smith v Shilkin (No 2) [2019] NSWSC 969
Case: [2019] NSWSC 969
Decision Date: 01 August 2019

CaseChat Overview and Summary

The case of Smith v Shilkin (No 2) involved a dispute between two parties, Smith and Shilkin, in the Federal Court of Australia. The matter centred around the validity and service of a statement of claim, which is a document outlining the plaintiff's claims against the defendant. The case hinged on whether an ex parte order, made by a Judge of the Court to extend the validity of the statement of claim for service, should be discharged, and if service of the statement of claim should be deemed effective against each of the defendants.

The primary legal issue before the court was whether an ex parte order, extending the validity of a statement of claim, should be discharged under the relevant rule of the Uniform Civil Procedure Rules (UCPR). Additionally, the court needed to determine if service of the statement of claim should be taken as effective upon each defendant. The court's analysis involved examining the provisions of UCPR r 12.11(1)(e) and assessing the circumstances surrounding the making and enforcement of the ex parte order.

The court concluded that the ex parte order should not be discharged, as it found that the order was made in accordance with the relevant rules and there was no substantial injustice caused to the defendants. Furthermore, the court held that service of the statement of claim should be considered effective upon each defendant, as the defendants had been given sufficient notice of the proceedings and had not been prejudiced by the service. The court reasoned that the defendants had actual or constructive knowledge of the proceedings and had participated in the proceedings without raising any objections to the service of the statement of claim.

The final orders of the court were that the ex parte order extending the validity of the statement of claim for service should not be discharged, and service of the statement of claim was deemed effective upon each of the defendants. This decision ensured that the proceedings could continue, and the plaintiff's claims could be heard and determined by the court.

Orders