Wakim v Coleman & Ors - [2008] NSWSC 1377

CITATION: Wakim v Coleman & Ors [2008] NSWSC 1377

HEARING DATE(S): 4 July; 12 September 2008

JUDGMENT DATE :
19 December 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: The proceedings are dismissed. I order the plaintiff to pay the defendants' costs of the proceedings including the applications heard by me.

LEGISLATION CITED: Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: FAI Insurances Ltd (in liquidation) v Mainprize [2006] NSWSC 554
Heaven v Road & Rail Wagons Limited (1965) 2 QB 355
In Re Chittenden, Deceased [1970] 1 WLR 1618
NSW Insurance Ministerial Corporation v Anderson (unreported) NSWCA 14 June 1994
Weston v Publishing & Broadcasting Ltd [2007] NSWSC 1318

PARTIES: Elias George Wakim (Plaintiff)
David Coleman trading as Taylor & Scott (1st Defendant)
Gervase Liddy (2nd Defendant)
Peter Wilson (3rd Defendant)
Stephen Cahill (4th Defendant)
Ray Mc Clenhan (5th Defendant)
David MurrSC (6th Defendant)
Andrew Ogborne (7th Defendant)

FILE NUMBER(S): SC 20223/06

COUNSEL: Mr M Neil QC/Ms G Preston (Plaintiff)
Mr D Davies SC (Defendants)

SOLICITORS: Morgan Ardino & Co. Solicitors (Plaintiff)
Yeldham Price O'Brien Lusk Lawyers (1st to 5th Defendants)
McCabe Terrill Solicitors (6th Defendant)
Moray & Agnew Solicitors (7th Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

19 DECEMBER 2008

20223/06 GEORGE WAKIM v DAVID COLEMAN T/AS TAYLOR AND SCOTT AND 6 ORS

JUDGMENT

1 HER HONOUR: On 13 June 2006 Mr George Wakim filed a statement of claim seeking damages for professional negligence against the solicitors and counsel retained by him in three earlier proceedings. The statement of claim was not served before it ceased to be valid for service. Mr Wakim did not apply for an extension of the time for service (until the hearing of the present matters).

2 After the statement of claim had ceased to be valid for service, and after a limitation defence had probably accrued in respect of at least part of the claim, a Registrar of the Court granted leave to Mr Wakim to file an amended statement of claim. The amended statement of claim has since been served on some of the defendants.

3 The applications before the Court raise the issue whether the proceedings should be permitted to continue in those circumstances. The defendants seek an order that the amended statement of claim be disallowed, a declaration that the original statement of claim is invalid for service and an order setting aside certain orders of the Registrar. In the alternative, the defendants seek summary dismissal of the proceedings under UCPR 13.4.

4 The plaintiff has responded to those applications with an application for leave to serve the amended statement of claim out of time or, alternatively, leave to serve the original statement of claim.

5 Mr Wakim was represented by Mr Duncan of counsel at the hearing of the applications. After the conclusion of the hearing, Mr Wakim filed a notice of motion seeking leave to re-open his case to put on further…

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 & Ors

Details

AGLC: Wakim v Coleman [2008] NSWSC 1377
Case: [2008] NSWSC 1377
Decision Date: 19 December 2008

CaseChat Overview and Summary

The case of Wakim v Coleman & Ors involved a claim for damages for professional negligence against the defendants, Coleman and others. The plaintiffs, Wakim, sought to continue proceedings in circumstances where the original statement of claim had not been served before it ceased to be valid for service. There had been no application for an extension of the time for service until the hearing of the present matters. Additionally, a limitation defence had probably accrued in respect of at least part of the claim before a Registrar of the Court granted leave to the applicant to file an amended statement of claim. The central legal issue was whether the proceedings should be permitted to continue given the procedural history and the implications of the limitation period.

The court was required to decide whether the plaintiffs' failure to serve the statement of claim within the prescribed time and the subsequent accrual of a limitation defence should preclude them from continuing with the claim. The court also had to consider whether the Registrar's decision to grant leave to file an amended statement of claim was valid and if it should affect the assessment of the plaintiffs' ability to continue with their claim. The court's reasoning centred on the principles of procedural fairness, the impact of limitation periods on the plaintiffs' rights, and the discretion of the court in allowing amendments to the pleadings.

The court held that the proceedings should not be permitted to continue. The key factor was the plaintiffs' failure to serve the statement of claim within the statutory time limit, which had resulted in the accrual of a limitation defence. The Registrar's subsequent decision to allow an amended statement of claim did not retroactively validate the plaintiffs' procedural misstep. The court emphasised the importance of adhering to procedural rules and the consequences of failing to do so, particularly in cases involving limitation periods. Ultimately, the court's decision underscored the principle that procedural fairness and the adherence to statutory time limits are critical in the administration of justice.

In conclusion, the court dismissed the plaintiffs' claim, finding that the failure to serve the statement of claim within the statutory period and the accrual of a limitation defence were fatal to their case. The decision highlighted the importance of strict compliance with procedural requirements and the court's limited discretion in permitting deviations from those requirements. The final orders of the court were that the proceedings be dismissed with costs.

Orders