Petek v Goldman & Ors

Supreme Court of NSW|2001-09-28|Before: Dowd J

CITATION : Petek v Goldman & Ors [2001] NSWSC 857 FILE NUMBER(S) : SC 20110/96 HEARING DATE(S) : 13/3/2001 JUDGMENT DATE : 28 September 2001

Kenneth Paul Petek- Appellant Barry Goldman- First Respondent PARTIES : Naga Pty Limited- Second Respondent Warren Wilson- Third Respondent Goodacre Developments Pty Limited- Fourth Respondent JUDGMENT OF : Dowd J at 1

COUNSEL : Mr GA Seib- Appellant Ms EA Collins- Fourth Respondent Mr R Gorick- Appellant SOLICITORS : Mr DJ Catts- First Respondent Mr DC Balog- Second & Third Respondent MR DP Cowling- Fourth Respondent CATCHWORDS : Extension of time to serve Statement of Claim - Appeal from decision of Master Fair Trading Act 1987 LEGISLATION CITED : Supreme Court Act 1970 Trade Practices Act 1974 Baker v Wingo (1972) 407 US 514. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Franklin House Ltd v ANI Corporation Ltd & Ors (Unreported, NSWSC, 7 November 1994). Holt v Wynter (2000) 49 NSWLR 128. CASES CITED : House v The King (1936) 55 CLR 499. Jackamurra v Krakouer (Unreported, Supreme Court of WA (Full Court), 7 August 1996). Jackamurra v Krakouer (1998) 195 CLR 516. John Edmonson VC Memorial Club Co-Op Limited v Bartsch [1999] NSWCA 348. Morrison and Another v Judd (Unreported, NSWCA, 10 October 1995). Petek v Goldman & 3 Ors [2000] NSWSC 409. DECISION : 1. Appeal dismissed; 2. The Notice of Motion seeking to appeal the decision of the Learned Master be dismissed; and 3. Appellant to pay the respondents' costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION 20110/96 DOWD J 28 September 2001

Kenneth Paul PETEK v Barry GOLDMAN & Ors Judgment 1 HIS HONOUR: The appellant, Kenneth Paul Petek, sought in this appeal to set aside orders of Harrison M in Petek v Goldman & 3 Ors [2000] NSWSC 409, first dismissing the appellant's Amended Statement of Claim and a notice of Motion filed on 15 February 2001 and secondly an order for costs, and in lieu thereof, the appellant sought the following orders:

(1) That the failure of the appellant to serve the Statement of Claim within two years of filing, pursuant to Pt 7 r7 SCR , be treated as an irregularity within the meaning of s81 of the Supreme Court Act 1970 ('the Act'); and (2) That the time for service of the Statement of Claim be extended to 20 June 1998, pursuant to Pt 2 r 3 SCR . The Facts 2 On 1 August 1990, a lease was entered into between Bunutu Pty Ltd, ('Bunutu') as lessor, and, KPP Enterprises Pty Ltd ('KPP'), as lessee, the first plaintiff in the appellant's Statement of Claim dated 7 February 1996, over the premises lot Z/Strata Plan 35561 ('the premises'), for a period of five years. The appellant alleged that the first respondent, Barry Goldman, represented to the appellant, that 90% of the commercial complex known as "Central Park", of which it formed part, had been leased, and the remainder of the complex would be leased by the time the company would have fitted out its premises. It was also represented to the appellant that there would only be only three restaurants in the complex, including that run by the appellant. 3 On 16 November 1990, KPP commenced the operation of a restaurant "La Province" at the premises. The appellant was the sole Director and shareholder of KPP. The first respondent, Barry Goldman, was an agent of Bunutu, the registered proprietor of the premises. 4 The second respondent, Naga Pty Ltd, was the agent authorised to act as manager of the premises. The third respondent, Warren Wilson, was a director of the second respondent. 5 On 25 May 1992, the appellant agreed, following a request from the fourth respondent, Goodacre Development Pty Limited ('Goodacre'), to cause a bank guarantee to be provided to Goodacre, the mortgagee of the premises, in the sum of $20,000. The appellant claimed that Goodacre represented to him that if rent of $2,000 per week was paid, then the additional bank guarantee would be released and a proposal for a new lease would be put to the appellant. 6 On 9 February 1993, Goodacre re-entered the premises and took possession. On 12 February 1993, KPP commenced proceedings against Goodacre in this Court seeking specific performance of the agreement to lease. On 4 March 1993 that summons, by consent, was dismissed. KPP undertook not to bring any further claims for, inter alia, relief against forfeiture or for possession. 7 On 7 February 1996, a Statement of Claim, initiating the current proceedings on behalf of KPP and the appellant, as plaintiffs, was filed in the Supreme Court of New South Wales. This Statement of Claim was never served on the respondents. The appellant failed to comply with Pt7 r7 SCR, which then provided that for the purpose of service, an originating process was valid for two years, (now one) from the date upon which it was filed. 8 In the Statement of Claim, the appellant relied on the facts as set out under paras 2,3,4 and 5, which pleaded that the appellant relied on the representation of the respondents and that it was reasonable to do so. The appellant contended that on reliance on those representations, the appellant lent money to KPP to enter into the lease agreement. The loss claimed was the money the appellant lent the company. It was alleged that the representations were false in so far that only 30% or less of the premises were leased, and 60% were still vacant three years later, and that an additional three restaurants were permitted to be opened in the complex contrary to the representations made. 9 The appellant's Further Amended Statement of Claim pleaded a breach of duty of care owed to the appellant by the third respondents, although the Amended Statement of Claim does not plead that the respondents owed a duty of care. This is a matter which could have been rectified, as found by Harrison M. 10 The appellant claimed in the Statement of Claim that representations made by all four respondents outlined above amounted to conduct which falls within s52 of the Trades Practices Act 1974 (Cth) and s42 of the Fair Trading Act 1987. There are other sections of these Acts relied on by the appellant but that are not relevant to these proceedings. 11 The Amended Statement of Claim alleged against the fourth respondent that the representation concerning the bank guarantee was false and misleading, that the re-entry into possession was wrong, and that there was trespass on the premises. 12 On 7 February 1997, the appellant's solicitors ceased to act for him. On the same day, the appellant's solicitors wrote to the appellant informing him that they had not been advised that KPP had been deregistered. They advised the appellant that an application would have to be made to the Court to have the company restored for the purpose of the proceedings. The letter also advised the appellant of the importance of filing the Statement of Claim in view of possible complications with Statutes of Limitations, and that the Statement of Claim must be served within two years to ensure compliance with the SCR. The letter also addressed the significance of seeking advice from a new firm of solicitors, as the matter had become quite complicated. 13 Following receipt of the letter from his former solicitors, the appellant continued to explore the possibility of reinstating KPP with its liquidator and the Australian Securities Commission, but by July 1997 he accepted that these attempts were futile. 14 On 26 July 1997 an Amended Statement of Claim was filed at the Supreme Court on behalf of the appellant only. KPP was no longer a party to the proceedings. The appellant contended that he understood that when he filed the Amended Statement of Claim, he had two years from that filing in which to serve it. 15 On either 12 or 19 June 1998, the respondents were served with the Amended Statement of Claim and a Notice of Differential Status Conference. 16 The respondents by various Notices of Motion sought orders setting aside proceedings or that the proceedings be struck out pursuant to the SCR. The first respondent sought an order that the proceedings be struck out as being statute barred. 17 By Notice of Motion, the appellant sought leave to further amend the Amended Statement of Claim. 18 On 8 February 2001, the Learned Master adjourned the proceedings to allow the appellant file a Notice of Motion to seek leave of the Court for an extension of time to serve the Amended Statement of Claim, and to prepare a further Amended Statement of Claim and any affidavit in support. 19 Master Harrison heard the Notice of Motion for an extension of time on 10 April 2000, at which time the appellant sought to file a Further Amended Statement of Claim which had been served on the respondents on the Friday before a Monday hearing, which gave inadequate time to consider such amendments. 20 The Learned Master then stood over the motion seeking to file a Further Amended Statement of Claim and the extension to the limitation period and summary judgment applications, pending the result of whether the determination of the extension of time to serve the Statement of Claim was successful. 21 On 18 May 2000, the Learned Master dismissed the Appellant's application for an extension of time to serve the Amended Statement of Claim. The Master considered the fact that it was KPP that had entered into the lease and found that the appellant was the controlling mind of that company. Master Harrison found that on the basis of representations made to him on behalf of KPP, that he lent money to KPP which he subsequently lost. The Learned Master found that this was a novel cause of action, a favourable determination on which would reflect a significant change to the law as it now stands. 22 Master Harrison examined the provisions of s81 of the Act and Pt2 r3 and Pt7 r7 SCR, and found that it was common ground before her that the Court had power to extend time for serving a Statement of Claim. The Master correctly applied the decision of Windyer J in Franklin House Ltd v ANI Corporation Ltd & Ors (Unreported NSWSC, 7 November 1994), the relevant part of which was at pages 7 and 8 of her judgment, in particular, that if a proper reason for delay is shown, then it is a matter for the Court to see where the interests of justice lie. 23 The Master then set up the history of the matter, and in particular referred to exhibit 4D/3 from the appellant's solicitors setting out in detail his obligation to serve the Statement of Claim and the consequence of failing to do so. 24 The Master found that the material before the Court to explain delay in serving the Amended Statement of Claim was unsatisfactory. In paragraph 17 of the judgment, the Master found that the appellant had been advised and indeed warned by his former solicitors that if he did not serve the Statement of Claim within two years of filing, there would be a risk that the Statement of Claim would be considered a nullity. 25 The appellant had also been warned by his former solicitors as to the importance of receiving advice as soon as possible from a new firm of solicitors. The Learned Master held that the appellant had not been entirely frank in giving his explanation for delay, and found that the explanation given by the appellant (the belief that he had two years from the date of the Amended Statement of Claim, rather than from the originating process, in which to serve the documents) was unsatisfactory. 26 The Master found that the appellant's case was not a strong one, and that the costs of litigating such a novel common law case, as described by the Learned Master, would be high and that the delay occasioned actual prejudice to the respondents. The Master then proceeded to consider matters of prejudice relevant to the respondents. This included evidence that the first defendant had no documents available to assist him and had no actual memory of his dealings with the appellant. The Master concluding with a quote, in which the Master relied on Baker v Wingo (1972) 407 US 514 at 532: "What has been forgotten can rarely be shown." 27 The Master, in exercising her discretion, held that justice was best served if the application for extension of time to serve the Amended Statement of Claim were refused. Grounds of Appeal 28 The following Grounds of Appeal were relied on by the appellant:

(1) The Learned Master erred in not accepting the appellant's explanation for delay in service of the Amended Statement of Claim. The Master erred in not holding that: (a) an acceptable explanation for delay had been shown, as the appellant had a genuine belief that the two years for service extended from the time of filing the Amended Statement of Claim; (b) that the appellant had been advised that the Statement of Claim would require amendments in several respects, and that he would also have to restore the deregistered corporate plaintiff named in the Statement of C laim; and (c) an acceptable explanation for the delay in service of the Amended Statement of Claim had been shown; (2) Alternatively, that the Learned Master erred in holding that an acceptable explanation for delay in service of the Amended Statement of Claim had to be shown; (3) The Learned Master erred in first, concluding that the appellant's case was not a strong one; the claim was novel and accordingly the cost of litigating it was high; and secondly, in taking into account such matters in exercising her discretion; and (4) The Master erred in failing to hold that the period of delay was negligible; no prejudice to the respondents had been demonstrated; the respondents had not raised the issue of validity of service; the appellant's case would be statute-barred if extension was not granted, thus causing great prejudice to the appellant in contrast to the undemonstrated claim of prejudice to the defendants.

The Appeal 29 The appeal before me is an appeal pursuant to Pt60 r10 SCR and is by way of rehearing under s75A(5) of the Act, but is not a hearing de novo as it is an appeal from the exercise of the Learned Master's discretion. The appellant must show that there has been a wrongful exercise of discretion because the Learned Master acted on an incorrect principle of law, failed to take into account relevant considerations, made some relevant error of fact, or has reached a result that is plainly unreasonable or unjust. 30 The manner in which an appeal against the exercise of judicial discretion is to be determined, is governed by established principles and enunciated in House v The King (1936) 55 CLR 499, at 504-505 by Dixon, Evatt and McTiernan JJ: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion." 31 House v The King and the principles stated therein have been universally applied, in particular in Morrison and Anor v Judd (Unreported, NSWCA, 10 October 1995). 32 The issue before this Court was thus to decide whether the Learned Master erred in a material respect, in not exercising her discretion in favour of granting the relief sought by the appellant. 33 Pt 2 r3 SCR, provides that: "(1) The Court may, on terms, by order, extend or abridge any time fixed by rules or by any judgment or order. (2) The court may extend time under subrule (1) as well as before the time expires whether or not an extension is made before the time expires. (3) The period within which a person is required by rules or by any order to serve, file or amend any pleading or other document may be extended by consent without an order for extension." 34 The appellant therefore carries the onus of persuading the Court to exercise discretion to extend the time fixed by the Rules.

Appellant's Submissions 35 The appellants submissions were on three basis: (a) the Learned Master's basis for dealing with the appellant's explanation as to the delay in service; (b) the Learned Master's consideration of the nature of the appellant's claim; and (c) the Learned Master's consideration of prejudice. 36 It is submitted on behalf of the appellant that the Learned Master did not disbelieve the appellant. In fact, the Learned Master did not say that she disbelieved the appellant's reason for delay, but rather that she did not accept as satisfactory the explanation for not serving the Amended Statement of Claim within time, in view of the fact that the appellant had received adequate warning from his former solicitors. It is submitted on behalf of the appellant that by referring to this factor, the Learned Master has inferred that a satisfactory explanation was required to bring into play the exercise of discretion. It is submitted on behalf of the appellant that if this is so, the Learned Master has erred in law, and relied on John Edmondson VC Memorial Club Co-Op Limited v Bartsch [1999] NSWCA 348, per Hodgson AJA at paragraph 24: "In the circumstances where the defendants suffered no relevant prejudice, in my opinion the fact that there was no satisfactory explanation of various delays is not conclusive against the exercise of discretion in favour of granting relief sought." 37 I do not consider that in John Edmondson VC, Hodgson J was actually saying that an unsatisfactory explanation plays no part in the exercise of discretion, but rather he held that in that particular case, were there was obviously no relevant prejudice, the lack of a satisfactory explanation as to the cause of delay is not in itself conclusive against the exercise of discretion in favour of granting the relief sought. 38 It was submitted on behalf of the fourth respondent that the Learned Master, in finding that the appellant's explanation was not satisfactory, applied the relevant threshold set out by Windeyer J, in Franklin House at page 3: "..in such a case the plaintiff is seeking an indulgence from the Court and must provide an adequate reason for the granting of such an indulgence and, where applicable, an explanation of the reasons why such application has become necessary." 39 The threshold argument put by the respondents in itself does not suffice, as the facts and circumstance of each case put before the Court must be considered in the exercise of the Court's discretion, in finding whether an explanation for delay is satisfactory, or not satisfactory, and this I consider is clearly expressed in Morrison, by Kirby P a page 4: "In approaching the issue of whether relief should be granted pursuant to Pt 2 r 3 of the Act, Master Malpass first noted that the relevant rule conferred an unfettered discretion, which is to be exercised having regard to the facts and circumstances of the case before the Court. He pointed out that the applicant for relief bore the onus of satisfying the Court that an order should be made." 40 In Morrison, the Learned Master declined to grant an extension of time pursuant to Pt 2 r3 SCR for reasons, which included the failure by the applicant to provide a satisfactory explanation as to the reason for delay. On appeal, this decision was reversed by Spender AJ, but was restored by the Court of Appeal by Kirby P, with whom Meagher and Powell JJA agreed. Kirby P reiterates the House v The King principle that it was not the role of the Appeal Court to simply substitute their discretion and argued at page 10 that: "The Master was clearly right to take into account the absence of any explanation for delay in prosecuting the claim. It is rudimentary, when evaluating the requirements of justice, to consider the explanations which a party offers (if any) for the failure to conform to the requirements of the Supreme Court Rules that cases be prosecuted with diligence. Where there is no explanation, a party is left bereft of excuse."

41 It was however submitted, on behalf of the appellant, that the Learned Master erred in exercising her discretion by not taking into account the terms and effect of the letter sent to the appellant by his former solicitors, warning him as to the consequences of a delay in service. It is submitted that the Learned Master did not have regard to the fact that the letter did not discuss the effects of an Amended Statement of Claim, and that was the appellant's core explanation. I am not convinced that the failure to address the importance of the specific wording of the letter to the appellant, notwithstanding that the Learned Master did discuss at length her evaluation of the letter in paragraph 17 of the judgment, amounts to an error in law. 42 There are two stages to a determination as to whether an explanation is satisfactory. The Court must first find what the explanation is and this might bring into account issues of credibility. A Court must then look at the explanation based on what is found. The Learned Master, in considering the explanation, was entitled to look at the explanation given and also a failure to give an explanation as to obvious evidentiary matters, such as the contents of the letter. The Learned Master was also entitled to examine, in the exercise of the discretionary powers conferred on the Court, the whole of the evidence and the circumstances before it. 43 Further to this ground of appeal, it must be reiterated that it is not my role as a Court exercising appellate jurisdiction, to simply substitute my opinion on a discretionary matter determined by another member of the Supreme Court, unless it has been shown in the House v King sense that:

(a) there was a failure to take into account relevant information; (b) an irrelevant consideration was taken into account; a conclusion was drawn which was otherwise manifestly unjust or unfair; or (c) there is evidence of an error of principle. 44 I have not found that the Learned Master, in finding that the explanation given by the appellant as unsatisfactory, has breached any of those fundamental principles or erred in law. (b) The Merits of an Appeal 45 It was further submitted by Counsel for the appellant that that the Learned Master's finding as to the strength of the appellant's case at paragraph 17 : "The plaintiff's case is not a strong one. The costs in litigating such a novel common law claim will be high",

appears to be relying on an assumption that the hearing commenced as an application to strike out or dismiss the claim on the motions of the respondents. 46 Counsel for the appellant, submitted that the Learned Master appeared to treat the application as one to extend time for the commencement of an action. In doing so, it is contended by the appellant that the Learned Master appeared to have overlooked the critical distinction between that type of application, and the one concerned with an extension of time for the taking of a step in prosecuting the action validly commenced: Jackamurra v Krakouer (1998) 195 CLR 516, per Brennan CJ, McHugh J and Kirby; Gummow and Hayne JJ dissenting on facts at paras 32 and 33. It was held by Brennan CJ and McHugh J at paragraph 7: "But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course." 47 In Jackamarra, the plaintiff's case was dismissed by the Supreme Court of Western Australia on the grounds that it had not been established that the injuries sustained by the child had been caused by the father's negligent driving. Notice of appeal to the Full Court of the WA Supreme Court was given. The applicant, however, did not enter the appeal in compliance with the WA SCR. 48 Following this, an appeal by Notice of Motion was filed, in which the appellant sought an extension of time in which to file the original appeal. The Full Court of the Supreme Court of WA dismissed the application for extension, on the grounds that the appeal lacked any real prospect of success. On appeal to the High Court, it was held by Brennan CJ, McHugh and Kirby JJ, Gummow and Hayne JJ dissenting at page 516 that: "..the Full Court could not come to the conclusion that the appeal had no prospects of success unless it examined all the evidence." 49 In my opinion, the enunciation of the High Court in Jackamarra is that when a Court is dealing only on the merits of a case, without the benefit of the full material evidence, other than where it is considered that an appeal is so devoid of merit that it would be futile to extend time, then the Court has erred in its direction. The Full Court of WA in Jackamarra grounded that decision on the lack of evidence as expressed in Jackamarra v Krakouer (Unreported Supreme Court of WA (Full Court),7 August 1996) by Malcolm CJ with whom the other members of the Full Court agreed at page 19: "The critical issue, however relates to the merits of the appeal. In my opinion the appeal lacks any real prospect of success. This is a case where the apparent lack of merit in the appeal is in the end decisive". 50 The High Court held that the Full Court of the Supreme Court of WA could not have come to this conclusion unless it examined all the evidence. 51 The issue before this Court in this ground of appeal is to examine the considerations of merit addressed by the Learned Master in her judgment. The Learned Master's reference to the appellant's case as "not a strong one" and "novel" is not, I contend, in any way the critical issue or the only in her exercise of discretion. This issue was one among other considerations taken into account by the Learned Master in her determination. Brennan CJ and McHugh J confirm this in their judgment at page 522: "The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised."

It is a matter that ought to be taken into account as a factor in conjunction with all of the other circumstances. Clearly, for instance, a patently absurd cause of action, on the face of the pleadings, would entitle a Court to give very considerable weight to that particular ground as a factor in refusing an exercise of discretion, less so when there is some arguable case, even though novel, that is being advanced. 52 The reference made by the Master in the exercise of her discretion as to the merits of the case does not amount to an error in law in the Jackamarra sense. 53 Further, it is contended by the respondents that considerations of the merits of an appeal, such as those addressed by the Learned Master that the appellant's case was not a strong one; that the case was novel; and that the high costs of litigating such an novel common law case, were all matters reasonably open to the Master in exercising her discretion, none of them irrelevant, in the House v The King sense. It was further submitted that unlike the statutory provisions examined in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, there are no restrictions on the circumstances which must be present before the discretion is enlivened, or the manner in which it may be exercised. As McHugh J Stated at page 554: "That the applicant had a good cause of action and was unaware of a "material fact of a decisive character relating to the right of action" does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of discretion, but do not compel its exercise in favour of the applicant."

54 McHugh J outlines the Legislature's rationale for limitation periods, making the point that a limitation provision is the rule and the extension of time the exception. At page 554 he explores the object of discretion: "..the object of discretion, to use the words of Dixon CJ in a similar context, is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case".

In other words, it is proper that the Learned Master included in her judgment all the considerations and facts, including the issue of merit, in exercising her discretion for the purpose of giving effect to her view of the justice of the case. 55 It does not take much experience of law to find that a matter such as this, involving several parties, was likely to result in high costs and will consume the time of the Court. The Court has to take into account the progress of all litigation and the impact of proceedings delaying other matters coming before the Court. (c) Prejudice 56 The final submission of the appellant relates to the issue of prejudice. It is contended that the Learned Master made no findings of actual prejudice. While it is accepted by the appellant that the Learned Master did make specific reference to the position of the first respondent, Mr Goldman, namely "he does not have any documents that would be able to assist him" (paragraph 17), it was submitted that these findings do not amount to actual prejudice, much less substantial prejudice in relation to the first respondent. 57 The appellant relies on Holt v Wynter (2000) 49 NSWLR 128,contending that the evidence of the first respondent did not amount to significant prejudice, and that the Learned Master, relying upon presumed or significant evidence, thus fell into irremediable error. The relevant point made by the appellant is dealt with at paragraph 119 by Sheller JA (with whose reasons Meagher and Handley JJA and Brownie AJA agree): "In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect granting the extension would result in significant prejudice to the potential defendant." 58 Counsel for the appellant went on to argue that the evidence provided by the first respondent does not amount to a finding of "significant prejudice". There is an inference from this submission that Sheller JA, in Holt v Wynter, held that significant prejudice had to be shown by the respondent before a Judge, in exercising their discretion, could refuse an appeal for extension of time. This is a very narrow interpretation of the judgment and is not one with which I would, with respect, concur. 59 In my opinion, Sheller J held that if the respondents can demonstrate significant prejudice, then the appeal for extension must be refused. It simply cannot be extrapolated to mean that the respondents in this case must demonstrate significant prejudice before the Learned Master could, in exercising her discretion, refuse an extension of time. I reiterate the point that the Master, in exercising her discretion, must take into account all the relevant issues in the House v The King sense in order to give effect to her view of the justice of the case.

60 Further on this matter, the Learned Master detailed in her judgment the facts relating to actual prejudice of the first respondent. They include the following facts at paragraph 16:

( 1)The first respondent's company "Goldman and May Pty Limited" is now liquidated; (2) The first respondent has moved house several times in the last ten years and does not have any of the relevant documents or records dealt with in the Statement of Claim or amended Statement of Claim available to him; (3) His former partner has no records relevant to the case; and (4) The first respondent's solicitor made extensive inquiries with the second and third respondents, searching their records but could not find any documentation relating to the issues raised by the appellant. 61 Clearly, the evidence referred to by the first respondent would be relevant to assist in the evaluation of the appellant's evidence and would be evidence on which the second and third respondents particularly would rely on, and in part the fourth respondent would similarly rely on such evidence. This must constitute actual prejudice to the second, third and fourth respondents.

62 In my opinion, there is certainly evidence of actual prejudice, but these facts cannot be assessed alone. The Court must also take into account the lapse of time involved. The Learned Master in paragraph 16 stated that ; "It is a difficult task to expect the defendants to remember oral conversations that they had with the plaintiff about ten years age."

63 Although the additional prejudice caused by the four months, being the additional time which the appellant sought was not overwhelmingly significant, it was nonetheless not just a few days, but more importantly, it did mean that the Learned Master was obliged to take into account the fact of prejudice. The prejudice for a matter which related to events some decade earlier is a significant factor and is one that the Learned Master took properly into account. 64 It was the combination of the relevant facts and considerations which were brought into account by the Learned Master in the exercise of her discretion to refuse to the grant relief sought. 65 In the event, I find that in a matter in which the appellant carried the onus to satisfy the Court that the relief sought was appropriate, I find that there has been no appellable error on the part of the Learned Master in considering the appellant's application, and accordingly the appeal fails. 66 The appellant having failed in the appeal I can see no reason to not to follow the normal order that costs follow the event. Accordingly the orders that I propose are:

(1) That the appellant's appeal be dismissed; (2)That the Notice of Motion seeking to appeal the decision of the Learned Master be dismissed; and (3) That the appellant pay the costs of the respondents. oOo

Last Modified: 10/22/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Trades Practices Act 1974(Cth)

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