Choy v Tiaro Coal Ltd (in liq) [2018] NSWCA 205

Choy v Tiaro Coal Ltd (in liq) [2018] NSWCA 205

Applying the prevailing legislative and rule framework, non-compliance with r 2.7 of the Corporations Rules was an irregularity but did not of itself warrant setting aside service, especially where service occurred within six months (under r 6.2 UCPR), delay was reasonably explained by the need to secure litigation funding, and no actual prejudice to the applicants was shown. The discretion exercised by the primary judge not to set aside service was not shown to be attended by error, and no sufficiently important issue of principle or justice warranted leave to appeal.

Jurisdiction
Australia
Judgment Date
20 September 2018
Procedural Posture
Application for Leave to Appeal / Appellate—leave to Appeal Sought From Interlocutory Decision
Outcome
Leave to appeal refused.
Legal Topics
['service of Originating Process' 'interaction of Procedure Rules' 'setting Aside Service for Irregularity' 'statutory Construction']
['corporations Law' 'civil Procedure'] ['service of Originating Process' 'interaction of Procedure Rules' 'setting Aside Service for Irregularity' 'statutory Construction']

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Procedural Posture

Application for Leave to Appeal / Appellate—leave to Appeal Sought From Interlocutory Decision

Legal Issues

  1. 1 ['Whether non-compliance with r 2.7 of the Supreme Court (Corporations) Rules 1999 (NSW) in service of originating process is an irregularity and the consequences thereof' 'Whether r 2.7 is inconsistent with r 6.2 of the Uniform Civil Procedure Rules 2005 (NSW)' 'Whether a delay in service justified setting aside service or dismissal' 'Whether leave to appeal should be granted']

Ratio Decidendi

Applying the prevailing legislative and rule framework, non-compliance with r 2.7 of the Corporations Rules was an irregularity but did not of itself warrant setting aside service, especially where service occurred within six months (under r 6.2 UCPR), delay was reasonably explained by the need to secure litigation funding, and no actual prejudice to the applicants was shown. The discretion exercised by the primary judge not to set aside service was not shown to be attended by error, and no sufficiently important issue of principle or justice warranted leave to appeal.

Court Disposition

Leave to appeal refused.

Orders

  • ['Leave to appeal refused.' "Applicants to pay the respondent's costs."]