Choy v Tiaro Coal Ltd (in liq)

(2018) 98 NSWLR 493; [2018] NSWCA 205

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Practice and procedure in corporations proceedings
3. › Service of originating process
4. › Supreme Court (Corporations) Rules 1999 (NSW), r 2.7
5. › Obligation to serve as soon as practicable after filing
6. › Delay in service to secure litigation funding
7. › Whether non-compliance with r 2.7 warranted setting aside service
8. › Whether primary judge erred in exercise of discretion
1. Practice and Procedure
2. › Service of originating process
3. › Application to set aside service for irregularity
4. › Procedural irregularity under Civil Procedure Act 2005 (NSW), s 63
5. › Whether non-compliance with rules of court invalidates proceedings or is mere irregularity
6. › Discretionary considerations including delay, explanation, and prejudice
1. Statutory Construction
2. › Interaction between Supreme Court (Corporations) Rules 1999 (NSW) and Uniform Civil Procedure Rules 2005 (NSW)
3. › Whether r 2.7 of Corporations Rules inconsistent with r 6.2(4) of Uniform Rules
4. › Qualified inconsistency provisions
5. › Civil Procedure Act 2005 (NSW), ss 11, 63
6. › Supreme Court (Corporations) Rules 1999 (NSW), rr 1.3, 2.7
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 1.7, 6.2
1. Appeal
2. › Leave to appeal from interlocutory decision
3. › Discretionary decision on practice and procedure
4. › Whether decision attended with sufficient doubt
5. › Whether question of principle or general importance
6. › Supreme Court Act 1970 (NSW), s 101(2)(e)

Quick Take

Practitioners commencing corporations proceedings in NSW must comply with r 2.7's requirement to serve as soon as practicable, but non-compliance is an irregularity under s 63 of the Civil Procedure Act rather than a nullity; the six-month validity period in r 6.2(4) applies only insofar as it is not inconsistent with r 2.7, meaning it governs when process becomes stale but does not authorise delay in service.