White v Attwells; Attwells v White - [2019] NSWSC 1278

Supreme Court

New South Wales

Medium Neutral Citation: White v Attwells; Attwells v White [2019] NSWSC 1278
Hearing dates: 24 June 2019(Final written submissions 16 July 2019)
Decision date: 25 September 2019
Before: Gleeson J
Decision:
2017/239938 (Fees proceeding)

The Court orders:

(1)   Subject to the following conditions:

(a)   the heading to the cross-claim being amended to only refer to the cross-defendant, Mr White; and

(b) certification by the solicitor for the cross-claimant as to reasonable prospects pursuant to cl 4(2) of schedule 2 of the Legal Profession Uniform Law Application Act 2014 (NSW),

grant leave to the defendant (Mr Attwells) to file a defence and cross-claim cross summons against Mr White, in the form of MFI 1.

(2)   Otherwise dismiss the defendant’s amended notice of motion filed 7 June 2019.

(3)   The plaintiff to pay the defendant’s costs of the amended notice of motion filed 7 June 2019, except in relation to the claim for relief in par 3 of that motion.

(4)   The defendant to pay Mr Kelly SC’s costs of the amended notice of motion filed 7 June 2019.

2017/382284 (Negligence proceeding)

The Court orders:

(1) Pursuant to UCPR, r 1.12, extend the time for service of the statement of claim on the second defendant (Mr Kelly SC) to 13 June 2018.

(2) Pursuant to UCPR, r 36.16(2)(b), vary the order made by the District Court on 18 June 2018 such that the time for service of the statement of claim on the first defendant (Mr White) is extended to 16 August 2018.

(3) Pursuant to UCPR, r 10.14(2), direct that the statement of claim be taken to have been served on the first defendant (Mr White) on 16 August 2018.

(4) Subject to certification by the solicitor for the plaintiff as to reasonable prospects pursuant to cl 4(2) of schedule 2 of the Legal Profession Uniform Law Application Act 2014 (NSW), grant leave to the plaintiff to file an amended statement of claim dated 13 September 2018, in the form of annexure C to the affidavit of Leonardo Muriniti sworn 17 September 2018.

(5)   The plaintiff to pay each defendant’s costs thrown away by reason of the amendments to the statement of claim.

(6)   Otherwise dismiss the plaintiff’s amended notice of motion filed 7 June 2019.

(7)   The first and second defendants to pay the plaintiff’s costs of the amended notice of motion filed 7 June 2019, except in relation to the relief claimed in pars 7, 8 and 9 of that motion.

(8)   Otherwise dismiss the first defendant’s notice of motion filed 23 August 2018 with costs.
(9)   Dismiss the second defendant’s notice of motion filed 12 October 2018 with costs.
Catchwords:
CIVIL PROCEDURE – originating process – statement of claim for damages – expiry before valid service on defendants – whether service of stale statement of claim on second defendant subsequently authorised – whether service a procedural irregularity within s 63 of Civil Procedure Act 2005 (NSW) – where time for service extended but…

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: [2019] NSWSC 1278
Decision Date: 25 September 2019

CaseChat Overview and Summary

In the case of White v Attwells; Attwells v White, the plaintiffs, represented by Mr White, initiated legal proceedings against the defendants, Attwells, seeking damages. The dispute involved a statement of claim that had expired before valid service on the defendants, leading to the question of whether a subsequent service of the statement of claim on the second defendant was authorised. The matter was before the District Court, with the court required to decide on the validity of the service and the implications of procedural irregularities under the Civil Procedure Act 2005 (NSW).

The central legal issue was whether the service of the expired statement of claim constituted a procedural irregularity that warranted setting aside the proceeding or extending the time for service. Additionally, the court needed to determine whether the first defendant could be considered served despite the lack of personal service. Another consideration was whether the proceeding should be set aside, the time for service extended, or if the first defendant could be deemed served. The court also had to address the registrar's power to extend the time to serve originating process under the Uniform Civil Procedure Rules 2005 (NSW) and whether the assistant registrar's lack of delegated power to dispense with the requirement to serve notice of motion on the affected party affected the validity of the order.

The court found that the service of the expired statement of claim was indeed a procedural irregularity under section 63 of the Civil Procedure Act 2005 (NSW). However, given that the time for service had been extended and the first defendant was deemed served, the court decided not to set aside the proceeding. Instead, the court considered setting aside or varying the order extending the time for service under UCPR, r 36.16(2)(b). Ultimately, the court granted leave to amend the pleadings to correct the procedural irregularities.

The court's final orders included granting leave to amend the pleadings to reflect the proper service of the defendants and correcting the procedural irregularities identified. The court also ordered that the time for service be extended to allow for the proper service of the first defendant, and it deemed the first defendant to have been served.

Orders