Tolcher v Gordon [2005] NSWCA 135 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
30 March 2005
JUDGMENT DATE:
3 May 2005
JUDGMENT OF:
Hodgson JA at 1; Ipp JA at 8; Tobias JA at 9
DECISION:
(1) Leave to appeal granted upon condition that Notice of Appeal be filed and served within 7 days of the date of these orders; (2) Appeal allowed; (3) Set aside Order 1 made by Armitage DCJ on 13 May 2004; (4) Pursuant to Part 3 rule 2(2) of the District Court Rules, order that the time specified in Part 18 rule 9 be extended to nunc pro tunc up to and including a date being 60 days after the date of these orders; (5) Pursuant to Part 3 rule 2(2) of the District Court Rules, order that the time for service of the Statement of Liquidated Claim upon the opponent be extended nunc pro tunc up to and including the date of these orders; (6) Pursuant to Part 18 rule 5(2) of the District Court Rules, direct that the service of the Statement of Liquidated Claim be deemed to have been effected on the opponent as at the date of these orders; (7) Order that the claimants' costs of the summons for leave to appeal and of the appeal be paid by the opponent but with respect to such costs to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified
CATCHWORDS:
CIVIL PROCEDURE - Delay in prosecution of proceedings - Action commenced within, but towards end of, limitation period (imposed by s 588FF(3)(a) Corporations Act 2001 (Cth)) - Service not effected within time limit provided by court rules - Action taken to be dismissed by operation of case management rule contained in court rules - Application to extend time limit for service and time on expiry of which action taken to be dismissed - Correct approach to exercise of discretion to allow renewal of writ after period allowed for service has expired where, if allowed, renewal would have effect of depriving party of benefit of an expired limitation period - Whether approach is same where action taken to be dismissed after expiry of limitation period - Whether public policy considerations behind relevant limitation provision relevant to discretion to extend time limits in question - Whether delay in commencement of action until just before end of limitation period relevant to discretion to extend time limits in question - Whether claimants should have sought extension of limitation period (under s 588FF(3)(b)) rather than instituting proceedings within, but towards the end of, limitation period - Whether it was the claimants or their solicitor who was primarily to blame for delay in prosecution of action
[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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AGLC
Tolcher v Gordon [2005] NSWCA 135
Case
[2005] NSWCA 135
Decision Date
CaseChat Overview and Summary
In *Tolcher v Gordon*, the claimants sought to appeal a decision of the District Court of New South Wales which had dismissed their action. The dispute arose from the claimants' failure to serve a Statement of Liquidated Claim within the time prescribed by the court rules, despite commencing their action within the limitation period stipulated by section 588FF(3)(a) of the *Corporations Act 2001* (Cth). The court rules provided that an action would be dismissed if service was not effected within the stipulated time. The claimants applied to extend this time limit for service and the time on the expiry of which the action would be dismissed.
The primary legal issues before the Court of Appeal were the correct approach to exercising the discretion to allow the renewal of a writ after the period for service had expired, particularly where such renewal would deprive a party of the benefit of an expired limitation period. The court also considered whether this approach differed when an action was automatically dismissed after the expiry of the limitation period, and whether public policy considerations underpinning the limitation provision were relevant to the discretion to extend time limits. Further questions included the relevance of the delay in commencing the action until just before the expiry of the limitation period, and whether the claimants should have sought an extension of the limitation period itself rather than instituting proceedings so close to its expiry. The court also examined who, between the claimants and their solicitor, bore the primary blame for the delay in prosecuting the action.
The Court of Appeal allowed the appeal, setting aside the District Court's order of dismissal. The court exercised its discretion to extend the time for service of the Statement of Liquidated Claim, ordering that service be deemed to have been effected as at the date of the Court of Appeal's orders. This decision was made notwithstanding the expiry of the original time limits for service and the potential impact on the opponent's accrued rights. The court found that the circumstances warranted the extension, effectively reviving the proceedings. The claimants were awarded their costs of the summons for leave to appeal and the appeal.
Orders
Orders of the court
(1) Leave to appeal granted upon condition that Notice of Appeal be filed and served within 7 days of the date of these orders; (2) Appeal allowed; (3) Set aside Order 1 made by Armitage DCJ on 13 May 2004; (4) Pursuant to Part 3 rule 2(2) of the District Court Rules, order that the time specified in Part 18 rule 9 be extended to nunc pro tunc up to and including a date being 60 days after the date of these orders; (5) Pursuant to Part 3 rule 2(2) of the District Court Rules, order that the time for service of the Statement of Liquidated Claim upon the opponent be extended nunc pro tunc up to and including the date of these orders; (6) Pursuant to Part 18 rule 5(2) of the District Court Rules, direct that the service of the Statement of Liquidated Claim be deemed to have been effected on the opponent as at the date of these orders; (7) Order that the claimants' costs of the summons for leave to appeal and of the appeal be paid by the opponent but with respect to such costs to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified