Wakim v Coleman

Case [2010] NSWCA 221



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…

Continue reading Wakim v Coleman

Sign in free to access the full text

Details
AGLC
Wakim v Coleman [2010] NSWCA 221
Case
[2010] NSWCA 221
Decision Date

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.