Howard, John Campbell & Anor v P D Mortgage Services Pty Ltd & Ors [1998] FCA 1280

Howard, John Campbell & Anor v P D Mortgage Services Pty Ltd & Ors [1998] FCA 1280

The application to extend time and amend the statement of claim was refused because of the applicants' repeated failures to comply with court orders, the lack of a satisfactory explanation for the long delay after the proceedings were terminated by self-executing order, and the confused and unclear nature of the proposed amended pleading. The power to extend time was therefore not exercised.

Parties
First Applicant: John Campbell Howard; Second Applicant: Elizabeth Mina Benz; First Respondent: P D Mortgage Services Pty Ltd (ACN 065 740 847); Second Respondent: Ross Charles McLeod; Third Respondent: Purvis Duncan (a firm); Fourth Respondent: John Reginald Cuffe; Fifth Respondent: Lewis Wayne Osborne; Sixth Respondent: Thomas John O'Toole; Seventh Respondent: William Hanron Redmond
Jurisdiction
Australia
Judgment Date
12 October 1998
Procedural Posture
Civil / Application to Extend Time and Amend Statement of Claim After Self Executing Dismissal Order
Outcome
Application dismissed with costs
Legal Topics
Self Executing Orders, Extension of Time, Practice and Procedure, Non Compliance With Court Orders
Civil Procedure Bankruptcy Law Trade Practices Self Executing Orders Extension of Time Practice and Procedure Non Compliance With Court Orders

Case Brief

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Parties

John Campbell Howard

First Applicant

Elizabeth Mina Benz

Second Applicant

P D Mortgage Services Pty Ltd (ACN 065 740 847)

First Respondent

Ross Charles McLeod

Second Respondent

Purvis Duncan (a firm)

Third Respondent

John Reginald Cuffe

Fourth Respondent

Lewis Wayne Osborne

Fifth Respondent

Thomas John O'Toole

Sixth Respondent

William Hanron Redmond

Seventh Respondent

Procedural Posture

Civil / Application to Extend Time and Amend Statement of Claim After Self Executing Dismissal Order

Legal Issues

  1. 1 Whether the Court should exercise its power to extend time under O 3 r 3 of the Federal Court Rules after a self-executing order has terminated the action
  2. 2 Whether there is adequate explanation for the delay in seeking to resurrect the action
  3. 3 Whether the proposed amended pleading cures the deficiencies of the previous statement of claim

Ratio Decidendi

The application to extend time and amend the statement of claim was refused because of the applicants' repeated failures to comply with court orders, the lack of a satisfactory explanation for the long delay after the proceedings were terminated by self-executing order, and the confused and unclear nature of the proposed amended pleading. The power to extend time was therefore not exercised.

Court Disposition

Application dismissed with costs

Orders

  • The notice of motion filed 23 June 1998 and the amended notice of motion filed 14 July 1998 be dismissed with costs, including any reserved costs on the notices of motion.