Tolcher v Gordon [2005] NSWCA 135

Reported Decision : 53 ACSR 442 (2005) 23 ACLC 798

New South Wales Court of Appeal

Tolcher v Gordon [2005] NSWCA 135 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 March 2005

JUDGMENT DATE: 3 May 2005

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 8; Tobias JA at 9

DECISION: (1) Leave to appeal granted upon condition that Notice of Appeal be filed and served within 7 days of the date of these orders; (2) Appeal allowed; (3) Set aside Order 1 made by Armitage DCJ on 13 May 2004; (4) Pursuant to Part 3 rule 2(2) of the District Court Rules, order that the time specified in Part 18 rule 9 be extended to nunc pro tunc up to and including a date being 60 days after the date of these orders; (5) Pursuant to Part 3 rule 2(2) of the District Court Rules, order that the time for service of the Statement of Liquidated Claim upon the opponent be extended nunc pro tunc up to and including the date of these orders; (6) Pursuant to Part 18 rule 5(2) of the District Court Rules, direct that the service of the Statement of Liquidated Claim be deemed to have been effected on the opponent as at the date of these orders; (7) Order that the claimants' costs of the summons for leave to appeal and of the appeal be paid by the opponent but with respect to such costs to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS: CIVIL PROCEDURE - Delay in prosecution of proceedings - Action commenced within, but towards end of, limitation period (imposed by s 588FF(3)(a) Corporations Act 2001 (Cth)) - Service not effected within time limit provided by court rules - Action taken to be dismissed by operation of case management rule contained in court rules - Application to extend time limit for service and time on expiry of which action taken to be dismissed - Correct approach to exercise of discretion to allow renewal of writ after period allowed for service has expired where, if allowed, renewal would have effect of depriving party of benefit of an expired limitation period - Whether approach is same where action taken to be dismissed after expiry of limitation period - Whether public policy considerations behind relevant limitation provision relevant to discretion to extend time limits in question - Whether delay in commencement of action until just before end of limitation period relevant to discretion to extend time limits in question - Whether claimants should have sought extension of limitation period (under s 588FF(3)(b)) rather than instituting proceedings within, but towards the end of, limitation period - Whether it was the claimants or their solicitor who was primarily to blame for delay in prosecution of action