ACN 081 123 140 Pty Ltd (Under External Administration) v Landerer & Company [2009] NSWSC 1121

ACN 081 123 140 Pty Ltd (Under External Administration) v Landerer & Company [2009] NSWSC 1121

Time for service was not extended and the statement of claim was set aside because the plaintiffs, through Messrs Widdup senior and junior, deliberately chose not to serve the statement of claim within the six month period despite repeated advice to do so, after filing it arguably just before expiry of the limitation period. The asserted confusion about service was not accepted and was not a satisfactory explanation. Although the defendants had notice of the proceedings and the plaintiffs would likely be statute barred, the deliberate decision to let the statement of claim become stale after the limitation period expired was a powerful factor against relief and was inconsistent with the...

Jurisdiction
Australia
Judgment Date
23 October 2009
Procedural Posture
Procedural Ruling in Professional Negligence Proceedings Concerning Service of Originating Process / Defendants' Notice of Motion to Set Aside Originating Process and Plaintiffs' Amended Notice of Motion to Deem or Extend Time for Service and for Leave to File and Serve an Amended Statement of Claim
Outcome
The plaintiffs' amended notice of motion was dismissed; the statement of claim was set aside; the plaintiffs were ordered to pay the defendants' costs as agreed or assessed.
Legal Topics
['service of Originating Process' 'extension of Time' 'setting Aside Originating Process' 'delay in Service' 'personal Service' 'limitation Period']
['civil Procedure' 'professional Negligence'] ['service of Originating Process' 'extension of Time' 'setting Aside Originating Process' 'delay in Service' 'personal Service' 'limitation Period']

Case Brief

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Procedural Posture

Procedural Ruling in Professional Negligence Proceedings Concerning Service of Originating Process / Defendants' Notice of Motion to Set Aside Originating Process and Plaintiffs' Amended Notice of Motion to Deem or Extend Time for Service and for Leave to File and Serve an Amended Statement of Claim

Legal Issues

  1. 1 ['Whether service of the statement of claim should be deemed to have occurred on 21 August 2008 or 4 September 2008.' 'Whether time for service of the statement of claim filed 20 August 2008 should be extended after the six month period for service had expired.' "Whether leave should be granted to file and serve an amended statement of claim by delivery to the defendants' solicitors." 'Whether the statement of claim should be set aside under UCPR r 12.11 because it was not personally served within time.']

Ratio Decidendi

Time for service was not extended and the statement of claim was set aside because the plaintiffs, through Messrs Widdup senior and junior, deliberately chose not to serve the statement of claim within the six month period despite repeated advice to do so, after filing it arguably just before expiry of the limitation period. The asserted confusion about service was not accepted and was not a satisfactory explanation. Although the defendants had notice of the proceedings and the plaintiffs would likely be statute barred, the deliberate decision to let the statement of claim become stale after the limitation period expired was a powerful factor against relief and was inconsistent with the...

Court Disposition

The plaintiffs' amended notice of motion was dismissed; the statement of claim was set aside; the plaintiffs were ordered to pay the defendants' costs as agreed or assessed.

Orders

  • ["The plaintiffs' amended notice of motion filed 5 June 2009 is dismissed." 'The statement of claim is set aside.' "The plaintiffs are to pay the defendants' costs as agreed or assessed."]