CLACK -v- MURRAY [2017] WASCA 88 (4 May 2017)

Citation : MURRAY -v- MYDOMAINE PTY LTD [2016] WADC 109

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : MURRAY -v- MYDOMAINE PTY LTD [2016] WADC 109 (S)

Practice and procedure - When appeal commenced - When personal service is effected - Whether an extension of time in which to appeal should be granted

Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, r 27, r 29

Hope v Hope [1854] EngR 468; (1854) 4 De GM & G 328

Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314; (1996) 41 NSWLR 542

Murray v Mydomaine Pty Ltd [2016] WADC 109

Murray v Mydomaine Pty Ltd [2016] WADC 109 (S)

Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 98; [2004] 1 Qd R 140

Pino v Prosser [1967] VicRp 107; [1967] VR 835

Proud v La Rosa [2007] WASC 63

Simonsen v Legge [2010] WASCA 238

(This judgment was delivered extemporaneously on 4 May 2017 and has been edited from the court's record.)

1 In 2009, the first and second respondents, Mr and Mrs Murray, purchased a residential apartment, located in North Queensland, for an effective price of $350,000. They did so after Mrs Murray responded to a radio advertisement by the fifth respondent, which was then called Mydomaine Pty Ltd, marketing itself as an investment adviser. The appellants, Mr and Mrs Clack, controlled Mydomaine. The third and fourth respondents, Mr and Mrs Denton, were consultants for Mydomaine who dealt with Mr and Mrs Murray.

2 Mr and Mrs Murray commenced an action in the District Court claiming damages against Mydomaine, Mr and Mrs Clack and Mr and Mrs Denton. The pleaded causes of action included negligence and fraudulent misrepresentation. The action was tried in the District Court from 1 - 10 December 2015.

3 On 28 July 2016, the trial judge published reasons for decision.[1] He concluded that each of the defendants was liable for negligently misrepresenting that Mydomaine acted for Mr and Mrs Murray rather than sellers of apartments, and provided an unbiased consultative service. The trial judge concluded that each of the defendants was also liable for negligently failing to advise Mr and Mrs Murray of the risks associated with property investment. The trial judge also found Mydomaine, Mr Clack and Mrs Clack to be liable for fraudulently misrepresenting that Mydomaine acted for Mr and Mrs Murray rather than sellers of apartments. He ordered that the final amounts of damages and the appropriate orders be determined after the parties had conferred about certain issues.

4 The trial judge had assessed damages at $37,620. Damages were assessed by reference to the difference between the market value of the apartment at settlement (assessed at $308,200 by a valuer called by Mr and Mrs Murray) and the effective purchase price.

5 On 21 November 2016, a further hearing was held to address various issues, including the apportionment of damages as between the defendants. On 16 February 2017, the trial judge published supplementary reasons[2] and made final orders, including an order awarding Mr and Mrs Murray damages in the sum of $37,620 and an order that Mr and Mrs Clack pay Mr and Mrs Murray $30,848.40.

6 On 9 March 2017, Mr and Mrs Clack filed an appeal notice in this court against the orders made on 16 February 2017.

7 On 8 March 2017, Mr and Mrs Clack's solicitors sent an email to McAuliffe Legal, Mr and Mrs Murray's solicitors in the District Court proceedings. The email, which was followed up on a number of occasions, asked whether McAuliffe Legal would accept service of the notice of appeal. McAuliffe Legal sought instructions by email, of which Mrs Murray became aware on 10 March 2017. She instructed McAuliffe Legal not to accept service of the notice of appeal on her and her husband's behalf.

8 At about 6.40pm on 10 March 2017, a process server delivered copies of the appeal notice to Mr and Mrs Murray's Margaret River residence. Mr Murray answered the door and was handed copies of the appeal notice under cover of letters addressed to both Mr and Mrs Murray. Mr Murray showed the documents to Mrs Murray when he returned from answering the door.

9 A question arises as to whether the appeal has yet been commenced. An appeal is not commenced until an appeal notice has been both filed and served on the respondent personally.[3] Relevantly, personal service of a document on an individual is effected by 'leaving a copy of the document with the person to be served'.[4]

10 The purpose of requiring personal service of originating court process is to give notice of the proceedings to the relevant party. That is so that he or she may have an opportunity to resist the relief claimed in the proceedings.[5] The ordinary meaning of the phrase 'personal service' is that the document in question must come to the notice of the person for whom it is intended. The means by which the person served obtains the document are usually immaterial.[6] Where a notice of appeal is in fact received by a respondent, the document will have been 'left with' that respondent even if it is not handed to the respondent by a representative of the appellant seeking to effect personal service. Once the respondent receives the notice of appeal, the object of the requirement for personal service has been achieved. A person who the evidence establishes has actually received the document cannot validly complain that he or she has not been personally served.

11 These principles were applied in Pino v Prosser. In that case personal service was held to be validly effected when an originating process was left with a defendant's wife at his residence, and given to the defendant when he returned home that night.

12 In the present case, Mr and Mrs Clack's appeal notice was given to Mr Murray at the Murrays' residence. Mr Murray immediately gave the appeal notice to Mrs Murray. That involved the appeal notice being 'left with' Mrs Murray within the meaning of the Rules. Although the process server did not hand the documents directly to Mrs Murray, personal service was effected on her on 10 March 2017 when she received the documents delivered to her residence.

13 Having reached that conclusion it is unnecessary to consider whether the filing of notices of their intention to take part in the appeal precludes Mr and Mrs Murray from contending that the appeal notice was not served on Mrs Murray.

Should an extension of time to appeal be granted?

14 However, the appeal against the orders made on 16 February 2017 was required to be commenced by 9 March 2017.[7] The appeal notice was not personally served on Mr and Mrs Murray until 10 March 2017, and so was not commenced prior to that date. Mr and Mrs Clack therefore require an extension of time in which to appeal. Their application for an extension of time in which to appeal has been listed for hearing today.

15 The principles governing the exercise of the court's discretion to grant or refuse an extension of time to appeal are well established, and need not be restated here.[8]

16 In the present case, the appeal notice was filed within time and served on Mr and Mrs Murray only one day late. Although Mr and Mrs Clack could have acted more promptly, McAuliffe Legal were made aware of the appeal before the time for service expired and there is no evidence of prejudice to any respondent resulting from the delay in serving the appeal notice.

17 The grounds of appeal attack the admissibility of the valuation evidence adduced by Mr and Mrs Murray, which formed the basis of the damages assessment. Mr and Mrs Clack contend that the valuer's opinion was inadmissible because the opinions he expressed 'inextricably relied upon specific hearsay not disclosed or admitted into evidence'. Mr and Mrs Clack contend that the trial judge erred in over-ruling their objection to the admissibility of that opinion evidence. They contend that, as a consequence, the trial judge erred in finding that Mr and Mrs Murray suffered any loss or damage, which was the gist of the causes of action which the trial judge found to be established.

18 Any view of the merits of that ground at this interlocutory stage is necessarily provisional, and must be formed without the benefit of reviewing all relevant evidence and considering any responsive submissions. However, having considered the Appellant's Case, my view is that the grounds of appeal have some prospect of success (which is not to say that they will necessarily succeed).

19 In all these circumstances, it is in the interests of justice to grant the application for an extension of time to appeal to 13 March 2017. The appellant's application in an appeal dated 16 March 2017 is granted.

[1] Murray v Mydomaine Pty Ltd [2016] WADC 109.

[2] Murray v Mydomaine Pty Ltd [2016] WADC 109 (S).

[3] Rule 27 and r 29(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).

[4] Order 72 r 2 of the Rules of the Supreme Court 1971 (WA) (Rules), with which the Court of Appeal Rules are to be read by virtue of r 5 of the Court of Appeal Rules. There was no request to see the original or office copy of the document, under O72 r 2(b) of the Rules.

[5] Hope v Hope [1854] EngR 468; (1854) 4 De GM & G 328, 342, cited in Pino v Prosser [1967] VicRp 107; [1967] VR 835, 838 - 839 and Proud v La Rosa [2007] WASC 63 [13].

[6] Howship Holdings Pty Ltd v Leslie [1996] NSWSC 314; (1996) 41 NSWLR 542, 544, cited in Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] QSC 98; [2003] QSC 98; [2004] 1 Qd R 140 [8].

[7] Rule 26(2) of the Court of Appeal Rules.

[8] See Simonsen v Legge [2010] WASCA 238 [8].