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

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

The Court held that although the statement of claim became stale for lack of timely service, the delay was sufficiently explained by mistaken understanding and difficulty in obtaining information. The procedural irregularity in not serving the notice of motion did not nullify the earlier extension order, but that extension should be varied to avoid prejudice regarding limitation periods. Extensions of time for service were granted and leave to amend pleadings allowed, as the conduct of the plaintiff in both proceedings was not such as to warrant striking out or dismissal.

Parties
Plaintiff (2017/239938), First Defendant (2017/382284): Gary Alan White; Defendant (2017/239938), Plaintiff (2017/382284): Noel Bruce Attwells; Second Defendant (2017/382284): John Kelly SC
Jurisdiction
Australia
Judgment Date
25 September 2019
Procedural Posture
Interlocutory Applications in Civil Proceedings (fees and Negligence) / Post Transfer to Supreme Court, Determination of Interlocutory Motions and Applications to Amend Pleadings
Outcome
Motions for extension of time, validation of service, and amendment of pleadings granted in substantial part; applications to dismiss, strike out, or set aside process or service dismissed; costs orders made as per event, thrown away costs for amendments ordered against plaintiff where appropriate.
Legal Topics
Extension of Time for Service, Procedural Irregularity, Validation of Stale Originating Process, Amendment of Pleadings, Costs in Interlocutory Applications
Civil Procedure Extension of Time for Service Procedural Irregularity Validation of Stale Originating Process Amendment of Pleadings Costs in Interlocutory Applications

Case Brief

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Parties

Gary Alan White

Plaintiff (2017/239938), First Defendant (2017/382284)

Noel Bruce Attwells

Defendant (2017/239938), Plaintiff (2017/382284)

John Kelly SC

Second Defendant (2017/382284)

Procedural Posture

Interlocutory Applications in Civil Proceedings (fees and Negligence) / Post Transfer to Supreme Court, Determination of Interlocutory Motions and Applications to Amend Pleadings

Legal Issues

  1. 1 Whether the service of a stale statement of claim can be validated or extended via court order
  2. 2 Whether the failure to serve a motion on an affected party is a procedural irregularity under s 63 of the Civil Procedure Act 2005 (NSW)
  3. 3 Whether time for service of the statement of claim should be extended against defendants

Ratio Decidendi

The Court held that although the statement of claim became stale for lack of timely service, the delay was sufficiently explained by mistaken understanding and difficulty in obtaining information. The procedural irregularity in not serving the notice of motion did not nullify the earlier extension order, but that extension should be varied to avoid prejudice regarding limitation periods. Extensions of time for service were granted and leave to amend pleadings allowed, as the conduct of the plaintiff in both proceedings was not such as to warrant striking out or dismissal.

Court Disposition

Motions for extension of time, validation of service, and amendment of pleadings granted in substantial part; applications to dismiss, strike out, or set aside process or service dismissed; costs orders made as per event, thrown away costs for amendments ordered against plaintiff where appropriate.

Orders

  • Leave granted to Attwells to file defence and cross-claim against White in fees proceeding, subject to conditions.
  • Defendant's amended notice of motion (7 June 2019) otherwise dismissed in fees proceeding.