master prowse

3.27: Extension of time for service

Case Summary

The Plaintiffs’ process server attempted to serve a Statement of Claim on the final date for service, one year after the Statement of Claim had issued. The process server attended at a residence known to be the individual Defendant’s home and the corporate Defendant’s registered office.

The process server effected service of the registered office by leaving the Statement of Claim at the residence; however, the individual Defendant was not present to accept personal service. The process server spoke with the individual Defendant by phone, who committed to make arrangements for service that evening. The individual Defendant did not follow through, and it was not until the following morning, one day after the Statement of Claim had expired, that personal service took place.

The Plaintiffs brought an Application for a declaration that they had served the individual Defendant on a timely basis, or alternatively, for an Order extending the time to serve. In support of validating service, the Plaintiffs relied on a case wherein the Court declined to strike a Statement of Claim for failure to serve in time, as the late-served parties had knowledge of the existence of the Statement of Claim and the general nature of the claim being advanced before the Statement of Claim expired. Master Prowse was not persuaded, as it was not clear that the individual Defendant had been advised of the general nature of the Statement of Claim.

In support of an Order extending time for service, the Plaintiffs relied on Rule 3.27(1)(c), which permits the Court to extend the time for service where “special or extraordinary circumstances exist resulting solely from the defendant’s conduct or from the conduct of a person who is not a party to the action.” The Court accepted that the process server was a person who was not party to the Action, and that the process server’s carelessness was a special or extraordinary circumstance. It was also significant that the individual Defendant had agreed to make arrangements to accept service prior to the expiry of the Statement of Claim, but ultimately failed to do so. Master Prowse extended the time for service of the Statement of Claim on the individual Defendant to the date service had been affected.

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