Smith v Pacific Trading Enterprises [1999] NSWSC 333

Smith v Pacific Trading Enterprises [1999] NSWSC 333

The application to regularise service of the Statement of Claim on the third defendant out of time was dismissed because the plaintiffs' delay and failure to explain not proceeding against the third defendant caused substantial and irreparable prejudice to him in defending the proceedings, and the prejudice outweighed any justification for exercising the Court’s discretion to regularise service.

Parties
First Plaintiff: Peter Smith; Second Plaintiff: Kelera Saukturaga; Third Plaintiff: Aisake Kabu; First Defendant: Pacific Trading Enterprises Limited; Second Defendant: Janusz Kubs; Third Defendant: Walter Edward Cooper
Jurisdiction
Australia
Judgment Date
15 April 1999
Procedural Posture
Admiralty / Hearing of Notice of Motion for Order Regularising Service, and Cross Motion to Set Aside Service
Outcome
Application to regularise service dismissed; plaintiffs’ Notice of Motion dismissed with costs including third defendant’s costs of his Notice of Motion; Exhibits to be returned.
Legal Topics
Service of Originating Process, Irregular Service, Discretion to Cure Irregularities, Prejudice, Guarantee Liability
Civil Procedure Service of Originating Process Irregular Service Discretion to Cure Irregularities Prejudice Guarantee Liability

Case Brief

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Parties

Peter Smith

First Plaintiff

Kelera Saukturaga

Second Plaintiff

Aisake Kabu

Third Plaintiff

Pacific Trading Enterprises Limited

First Defendant

Janusz Kubs

Second Defendant

Walter Edward Cooper

Third Defendant

Procedural Posture

Admiralty / Hearing of Notice of Motion for Order Regularising Service, and Cross Motion to Set Aside Service

Legal Issues

  1. 1 Whether the Court should regularise out-of-time service of Statement of Claim on the third defendant under s.81 of the Supreme Court Act 1970 and Part 7 rule 7
  2. 2 Whether the third defendant would be prejudiced by allowing late service
  3. 3 Whether the plaintiffs have explained the delay in proceeding against the third defendant

Ratio Decidendi

The application to regularise service of the Statement of Claim on the third defendant out of time was dismissed because the plaintiffs' delay and failure to explain not proceeding against the third defendant caused substantial and irreparable prejudice to him in defending the proceedings, and the prejudice outweighed any justification for exercising the Court’s discretion to regularise service.

Court Disposition

Application to regularise service dismissed; plaintiffs’ Notice of Motion dismissed with costs including third defendant’s costs of his Notice of Motion; Exhibits to be returned.

Orders

  • Plaintiffs' Notice of Motion filed on 23 October 1998 dismissed with costs.
  • Third defendant entitled to costs of his Notice of Motion.