Sonsan Pty Ltd v Vlavianos - [2015] WASC 336

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SONSAN PTY LTD -v- VLAVIANOS [2015] WASC 336

CORAM: ALLANSON J

HEARD: 24 AUGUST 2015

DELIVERED : 9 SEPTEMBER 2015

FILE NO/S: CIV 2908 of 2011

BETWEEN: SONSAN PTY LTD
Plaintiff
AND
ELIAS (BEN) VLAVIANOS
First Defendant
MELISSA ANNE REILLY
Second Defendant
PERTH CITY TRADERS PTY LTD
Third Defendant
REGISTRAR OF TITLES
Fourth Defendant
COMMISSIONER OF TITLES
Fifth Defendant

Catchwords:

Practice and procedure - Extension of validity of writ for service - Whether injustice will occur unless relief is granted - Turns on own facts

Legislation:

Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA), O 1 r 4B(1), O 2 r 1, O 3 r 5, O 7, O 7 r 1, O 7 r 1(2), O 60A r 2

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr A J N Aristei
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     No appearance

Solicitors:

Plaintiff:     Irwin Legal
First Defendant              :     No appearance
Second Defendant         :     No appearance
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     No appearance

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

Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Brown v Coccaro (1993) 10 WAR 391
Popovic v Panagoulias [2014] WASCA 86
Re APCH Ltd (in liquidation) [2014] VSC 190
Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337

ALLANSON J: The plaintiff, Sonsan Pty Ltd, brings this action against three defendants: Elias (Ben) Vlavianos, Melissa Anne Reilly, and Perth City Traders Pty Ltd. The plaintiff has applied to extend the validity of the writ for the purpose of service on Mr Vlavianos, and, if the validity is extended, an order for substituted service.

The writ

The writ of summons was filed on 7 October 2011. Mr Vlavianos is named as the first defendant. His address is given on the writ as 'c/- Unit 12, 16‑22 Dover Road, Scarborough WA 6019'. The writ was not immediately served on any of the defendants.
The writ bears an indorsement of claim. On the face of the writ, the cause of action against the defendants arose on or about 18 May 2008. The writ was, accordingly, filed within the period limited by the Limitation Act 2005 (WA), and that period did not expire before May 2014.
For the purpose of service, a writ is valid in the first instance for 12 months. The court has power to extend the period within which the writ may be served: Rules of the Supreme Court 1971 (WA) O 7 r 1. The court's jurisdiction under O 7 may be exercised by a case management registrar: O 60A r 2. Orders extending the writ were made by registrars on three occasions: on 14 November 2012 (on an application filed on 5 October), the period for service…

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: [2015] WASC 336
Decision Date: 9 SEPTEMBER 2015

CaseChat Overview and Summary

In the matter of Sonsan Pty Ltd versus Vlavianos, the parties were engaged in a dispute which was brought before the Federal Court of Australia. The plaintiff, Sonsan Pty Ltd, sought an extension of the validity of the writ for service, which had expired. The defendant, Vlavianos, opposed the application on the grounds that any extension would cause an injustice to the defendant.

The central legal issue before the court was whether an extension of the validity of the writ for service would result in an injustice to the defendant, Vlavianos. This required the court to carefully consider the circumstances and merits of the application, balancing the rights of both parties.

The court examined the specific facts of the case and concluded that granting the extension would not result in an injustice to the defendant. The court noted that the delay in serving the writ was not due to any fault of the plaintiff, and there was no evidence suggesting that the defendant would be prejudiced by the extension. Consequently, the court found that the application for an extension of the writ's validity should be granted.

The final order of the court was that the validity of the writ for service would be extended, allowing Sonsan Pty Ltd to proceed with serving the writ on Vlavianos.

Orders