Frisken v Holdsworth, in the matter of Realmark Services Pty Limited (in liq) (No 2) [2023] FCA 268

Frisken v Holdsworth, in the matter of Realmark Services Pty Limited (in liq) (No 2) [2023] FCA 268

A further extension of time for service was justified because the plaintiffs had made real attempts to effect personal service, the extension was confined in duration, further steps to effect service remained available, and any prejudice to the defendant was not irremediable because the order could be varied or set aside if necessary.

Jurisdiction
Australia
Judgment Date
24 March 2023
Procedural Posture
Ex Parte Application for Extension of Time for Service of Originating Process and Supporting Affidavit / Case Management Hearing
Outcome
Extension of time granted and related case management orders made.
Legal Topics
['extension of Time for Service' 'ex Parte Application' 'service of Originating Process' 'public Examination' 'pleadings']
['practice and Procedure' 'corporations and Corporate Insolvency'] ['extension of Time for Service' 'ex Parte Application' 'service of Originating Process' 'public Examination' 'pleadings']

Case Brief

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Procedural Posture

Ex Parte Application for Extension of Time for Service of Originating Process and Supporting Affidavit / Case Management Hearing

Legal Issues

  1. 1 ['Whether there was good reason to further extend the time for service of the originating process and supporting affidavit on the defendant.' 'Whether the further extension of time would cause irremediable prejudice to the defendant.' 'Whether associated case management orders should be made concerning notice to the defendant, pleadings, and leave to file and serve a statement of claim.']

Ratio Decidendi

A further extension of time for service was justified because the plaintiffs had made real attempts to effect personal service, the extension was confined in duration, further steps to effect service remained available, and any prejudice to the defendant was not irremediable because the order could be varied or set aside if necessary.

Court Disposition

Extension of time granted and related case management orders made.

Orders

  • ['Pursuant to r 1.10 of the Federal Court (Corporation) Rules 2000 (Cth) and r 1.39 of the Federal Court Rules 2011 (Cth), the time in which the originating process and supporting affidavit filed 12 August 2022 is to be served on the defendant be further extended to 12 May 2023.' 'If the defendant is served with a...