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Wakim v Coleman

Wakim v Coleman

Case [2010] NSWCA 221 2 September 2010

Statutory Construction

Civil Procedure

Statutory Interpretation

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New South Wales

Court of Appeal

CITATION: Wakim v Coleman [2010] NSWCA 221

HEARING DATE(S): 2 August 2010

JUDGMENT DATE:
2 September 2010

JUDGMENT OF: Giles JA at 1; Hodgson JA at 2; Macfarlan JA at 3

DECISION: The application for leave to appeal is dismissed with costs.

CATCHWORDS: PROCEDURE - civil - meaning of originating process - period for which originating process valid for service - test to be applied on application to extend that period - PROCEDURE - judgments and orders - resort to extrinsic material for the purposes of construction of order where order ambiguous

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Chalmers v Redwood Anti-Ageing Pty Ltd [2007] NSWSC 1186; (2007) 215 FLR 8
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Heaven v Roads & Rail Wagons Ltd [1965] 2 QB 355
House v The King [1936] HCA 40; (1936) 55 CLR 499
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558
Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689
Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442

PARTIES: Elias George Wakim (Applicant)
David Coleman (First Respondent)
Gervase Liddy (Second Respondent)
Peter Wilson (Third Respondent)
Stephen Cahill (Fourth Respondent)
Ray McClenahan (Fifth Respondent)
David Murr (Sixth Respondent)
Andrew Ogborne (Seventh Respondent)

FILE NUMBER(S): CA 2009/298164

COUNSEL: D M J Bennett QC/M J Heath (Applicant)
S R Donaldson SC/E A Bishop (Respondents)

SOLICITORS: Morgan Ardino & Co (Applicant)
Yeldham Price O'Brien Lusk (First to Fifth Respondents)
Lee & Lyons Lawyers (Sixth Respondent)
Moray & Agnew (Seventh Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20223/06

LOWER COURT JUDICIAL OFFICER: McCallum J

LOWER COURT DATE OF DECISION: 19 December 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Wakim v Coleman & Ors [2008] NSWSC 1377

CA 2009/298164

GILES JA
HODGSON JA
MACFARLAN JA
2 SEPTEMBER 2010

WAKIM v COLEMAN

Judgment

1 GILES JA: I agree with Macfarlan JA.

2 HODGSON JA: I agree with Macfarlan JA.

: This is an application for leave to appeal and (if leave be granted) an appeal from a decision of McCallum J dismissing proceedings in which Mr Wakim sought an award of damages for professional negligence against the defendant solicitors and barristers. Her Honour dismissed the proceedings because the process that originated them was not served within the time delimited by the Uniform Civil Procedure Rules (“UCPR”) and because her Honour considered that there was no good reason for extending the time for service.

The previous proceedings

4 The defendants acted on Mr Wakim’s behalf in connection with three sets of proceedings that Mr Wakim had earlier conducted in the Federal Court.

5 These earlier proceedings and the background to them were described by the primary judge as follows:

“7 Twenty-three years ago Mr Wakim obtained judgment in the sum of $786,801.45 for damages arising out of…

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 Wakim v Coleman

Details

AGLC: Wakim v Coleman [2010] NSWCA 221
Case: [2010] NSWCA 221
Decision Date: 2 September 2010

CaseChat Overview and Summary

The applicants, Wakim and others, sought leave to appeal from a decision of the Supreme Court of New South Wales concerning the validity of an originating process and the construction of a court order. The respondents were Coleman and others. The dispute arose from an application to extend the period for which an originating process was valid for service, and an associated application to construe an earlier court order.

The primary legal issues before the Court of Appeal were: first, what test should be applied by a court when considering an application to extend the period for which an originating process is valid for service; and second, whether extrinsic material could be resorted to for the purpose of construing a court order where that order was ambiguous.

The Court of Appeal held that the test to be applied on an application to extend the period for service of an originating process is whether it is in the interests of justice to grant the extension. This involves a broad discretion, considering all relevant circumstances, including the reasons for the delay and any prejudice to the parties. Regarding the construction of the court order, the Court affirmed that where an order is ambiguous, extrinsic material, such as the reasons for judgment or the transcript of proceedings, may be admitted to ascertain the true meaning and intention of the order.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

The application for leave to appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Wakim v Coleman [2010] NSWCA 221

Most Recent Citation

High Court Bulletin [2011] HCAB 2

Cases citing this decision · 11 of 11 shown

Shipley v TJX Australia Pty Ltd
[2025] NSWPICMP 579 Para 2

…idence that this condition caused any permanent impairment at the time of her injury, aligning with Cole v Wenaline Pty Ltd [2010] NSWCA 221 requiring actual contribution. (k) The Medical Assessor’s reasoning was brief, which does not meet the standard in Campbelltown City Council v Vegan [2006] NSWCA 284 for clear…
Ahern v Aon Risk Services Australia Ltd
[2019] NSWDC 567 Para 82

…rted, NSWCA, 14 June 1994 per Gleeson CJ, Kirby P and Priestly JA agreeing); cited at first instance by McCallum J and on appeal in Wakim v Coleman [2010] NSWCA 221 at [11].…
White v Attwells; Attwells v White
[2019] NSWSC 1278 Para 84

…The plaintiff has the burden of satisfying the Court that good reasons exist for exercising the discretion to extend time: Wakim v Coleman [2010] NSWCA 221.…
Smith v Shilkin (No 2)
[2019] NSWSC 969

…an Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; [1981] HCA 11 Victa Ltd v Johnson (1975) 10 SASR 496 Wakim v Coleman [2010] NSWCA 221 Wakim v Coleman [2011] HCASL 38 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in li…
Mistring Pty Ltd v Certain Underwriters at Lloyds
[2017] NSWDC 394 Para 34

…In Wakim v Coleman [2010] NSWCA 221, the Court of Appeal at [35] upheld the primary judge’s decision that a party seeking an extension under the subject rule bore the onus of demonstrating a “good reason” for doing so. In doing so, the Court did not refer to Buzzle. At [18] the Court also stated that the limitation…
McIntosh v Maitland
[2016] QSC 203

…180 CLR 337; [1981] HCA 11, considered Victa Ltd v Johnson (1975) 10 SASR 496, distinguished Wakim v Coleman [2010] NSWCA 221, considered Weldon v Neal (1887) 19 QBD 394, cited COUNSEL: R Perry QC and D Keane for the plaintiff GA Thompson QC and SJ Webster for the first, fourth and fifth defendants SOLICITORS: Pip…
Gilles v Palmieri
[2016] NSWCA 219 Para 35

…ations Pty Ltd (in liq) [2009] NSWCA 104 at [43]. The onus lies upon the applicants to show “good reason” to extend time: see Wakim v Coleman [2010] NSWCA 221 at [38].…
Re Salfa Pty Ltd (in liq)
[2014] NSWSC 1493 Para 1

…ervice for 6 months after the date on which it is filed. While amendment of the originating process does not affect that time limit [ Wakim v Coleman [2010] NSWCA 221, [16]-[19]], where, as here, the third defendant was only joined by the amended originating process filed on 27 March 2012, as against him the origin…
Munn v Tunks
[2013] NSWSC 1263 Para 1

…as whether there was good reason for granting the extension (at [40]). My decision on that issue was upheld by the Court of Appeal in Wakim v Coleman [2010] NSWCA 221 at [27] to [38].…
High Court Bulletin
[2011] HCAB 2

…[2010] NSWCA 221 Application dismissed with costs…
Berger Investments Group Limited v Coccoon Pty Limited
[2010] NSWSC 1015

…07] NSWCA 234 Rich v Long [2008] NSWSC487 Rich v Packer; Rich v Long [2007] NSWSC 1290 Tolcher v Gordon [2005] NSWCA 135, 53 ACSR 442 Wakim v Coleman [2010] NSWCA 221 PARTIES: Berger Investments Group Limited (First Plaintiff) Gabriel Berger (Second Plaintiff) David Berger (Third Plaintiff) Coccoon Pty Limited (Fir…

View all 11 citing cases →

Cases cited in this decision · 8 of 8 shown

Symonds v Vass
[2009] NSWCA 139

…5 House v The King [1936] HCA 40; (1936) 55 CLR 499 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442 PARTIES: Elias George Wakim (Applicant) David Coleman (First Respondent) Gerv…
Wakim v Coleman & Ors
[2008] NSWSC 1377

…LOWER COURT JUDICIAL OFFICER: McCallum J LOWER COURT DATE OF DECISION: 19 December 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Wakim v Coleman & Ors [2008] NSWSC 1377…
Chalmers v Redwood Anti-Ageing Pty Ltd
[2007] NSWSC 1186

…LATION CITED: Civil Procedure Act 2005 Uniform Civil Procedure Rules CATEGORY: Principal judgment CASES CITED: Chalmers v Redwood Anti-Ageing Pty Ltd [2007] NSWSC 1186; (2007) 215 FLR 8 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Heaven v Roads & Rail Wagons Ltd [1965] 2 QB 355 House v The K…
Tolcher v Gordon
[2005] NSWCA 135

…ston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442 PARTIES: Elias George Wakim (Applicant) David Coleman (First Respondent) Gervase Liddy (Second Respondent) Peter Wilson (Third Resp…
D'Orta-Ekenaike v Victoria Legal Aid
[2005] HCA 12

…RY: Principal judgment CASES CITED: Chalmers v Redwood Anti-Ageing Pty Ltd [2007] NSWSC 1186; (2007) 215 FLR 8 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Heaven v Roads & Rail Wagons Ltd [1965] 2 QB 355 House v The King [1936] HCA 40; (1936) 55 CLR 499 Owston Nominees No 2 Pty Ltd v Bra…
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd
[2003] FCA 629

…1 Heaven v Roads & Rail Wagons Ltd [1965] 2 QB 355 House v The King [1936] HCA 40; (1936) 55 CLR 499 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442 PARTIES: Elias George Wak…
House v R
[1936] HCA 40

…7) 215 FLR 8 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Heaven v Roads & Rail Wagons Ltd [1965] 2 QB 355 House v The King [1936] HCA 40; (1936) 55 CLR 499 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689…
[1965] 2 QB 355
[1965] 2 QB 355

…g Pty Ltd [2007] NSWSC 1186; (2007) 215 FLR 8 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Heaven v Roads & Rail Wagons Ltd [1965] 2 QB 355 House v The King [1936] HCA 40; (1936) 55 CLR 499 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 Symonds v Vass [2009…

Legislation cited in this decision · 1

Civil Procedure Act 2005 (NSW)
3) 2 mentions

CITATION:	Wakim v Coleman [2010] NSWCA 221
HEARING DATE(S):	2 August 2010
JUDGMENT DATE:	2 September 2010
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 2; Macfarlan JA at 3
DECISION:	The application for leave to appeal is dismissed with costs.
CATCHWORDS:	PROCEDURE - civil - meaning of originating process - period for which originating process valid for service - test to be applied on application to extend that period - PROCEDURE - judgments and orders - resort to extrinsic material for the purposes of construction of order where order ambiguous
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules
CATEGORY:	Principal judgment
CASES CITED:	Chalmers v Redwood Anti-Ageing Pty Ltd [2007] NSWSC 1186; (2007) 215 FLR 8 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Heaven v Roads & Rail Wagons Ltd [1965] 2 QB 355 House v The King [1936] HCA 40; (1936) 55 CLR 499 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 Symonds v Vass [2009] NSWCA 139; (2009) 257 ALR 689 Tolcher v Gordon [2005] NSWCA 135; (2005) 53 ACSR 442
PARTIES:	Elias George Wakim (Applicant) David Coleman (First Respondent) Gervase Liddy (Second Respondent) Peter Wilson (Third Respondent) Stephen Cahill (Fourth Respondent) Ray McClenahan (Fifth Respondent) David Murr (Sixth Respondent) Andrew Ogborne (Seventh Respondent)
FILE NUMBER(S):	CA 2009/298164
COUNSEL:	D M J Bennett QC/M J Heath (Applicant) S R Donaldson SC/E A Bishop (Respondents)
SOLICITORS:	Morgan Ardino & Co (Applicant) Yeldham Price O'Brien Lusk (First to Fifth Respondents) Lee & Lyons Lawyers (Sixth Respondent) Moray & Agnew (Seventh Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20223/06
LOWER COURT JUDICIAL OFFICER:	McCallum J
LOWER COURT DATE OF DECISION:	19 December 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Wakim v Coleman & Ors [2008] NSWSC 1377