B & J Engineering Pty Ltd v Daroczy, Joseph & Anor [1984] FCA 459

B & J Engineering Pty Ltd v Daroczy, Joseph & Anor [1984] FCA 459

A notice of discontinuance under Order 30 r.1(1) requires that notice in writing be given to the defendant; mere filing in court is insufficient. Without such notice or leave of the court (Order 30 r.1(2)) where the writ is unserved, the action is not discontinued.

Parties
Appellant: B & J Engineering Pty Ltd (in liquidation); Respondent: Josef Daroczy; Appellant: Hiltonia Investments Pty Ltd trading as ACY Consolidated Machinery; Respondent: Hiltonia Investments Pty Ltd
Jurisdiction
Australia
Judgment Date
12 December 1984
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeals dismissed
Legal Topics
Notice of Discontinuance, Service of Documents, Interpretation of 'notice in Writing'
Civil Procedure Notice of Discontinuance Service of Documents Interpretation of 'notice in Writing'

Case Brief

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Parties

B & J Engineering Pty Ltd (in liquidation)

Appellant

Josef Daroczy

Respondent

Hiltonia Investments Pty Ltd trading as ACY Consolidated Machinery

Appellant

Hiltonia Investments Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether action No. 1293 of 1979 was discontinued by the filing of the notice of discontinuance without service on defendants or by step taken by plaintiff's solicitor to commence a fresh action
  2. 2 What constitutes 'notice in writing' under Order 30 r.1(1) of the ACT Supreme Court Rules
  3. 3 Whether leave of the court was necessary where the writ had not been served

Ratio Decidendi

A notice of discontinuance under Order 30 r.1(1) requires that notice in writing be given to the defendant; mere filing in court is insufficient. Without such notice or leave of the court (Order 30 r.1(2)) where the writ is unserved, the action is not discontinued.

Court Disposition

Appeals dismissed

Orders

  • The appeals are dismissed.
  • In each appeal, the appellant shall pay the costs of the respondent, Josef Daroczy, with the intent that such respondent recover only one set of costs.