Beecroft v Proprietors 'Top of the Mark' Bldg Units & Anor [1990] QSC 336

IN THE SUPREME COURT OF QUEENSLAND No. 3500 of 1986 BETWEEN: ANTHONY WILLIAM BEECROFT THE PROPRIETORS "TOP OF THE MARK" BUILDING UNITS PLAN NO. 3410 Plaintiff First Defendant THE DAVIS HEATHER GROUP PTY. LIMITED Second Defendant EXTEMPORE REASONS - SENIOR MASTER HORTON Q.C. Delivered the Sixth day of September, 1990 This is an application for leave to renew a writ which was issued in 1986. The facts of the matter seem to be that the plaintiff emerged from a nightclub which rejoiced an occupation of an area some distance from the ground in a building known as "Top of the Mark" at Surfers Paradise. The condition in which he emerged from the nightclub of course is a matter of speculation but apparently he came in contact with a railing on the common area adjacent thereto and this railing was insufficient to prevent him falling. The matter has had a sad history. The first defendant being the corporate body as such of the building was served and an attempt was made to serve the second defendant which is a company incorporated in New South Wales but in reality was the architect for the building. The affidavit of James Bernard McDonald Riley suggests that on 13th November, 1986, he "served" the second defendant with a sealed copy of the writ of summons by leaving such copy at the registered office of the second defendant's -- 1 of 4 -- ~ suite 101B, First Floor, 83 York Street, Sydney. He goes on to depose that such service was effected at 12.30 p.m. by handing the document annexed hereto and marked with the letter "B" to the receptionist of the credit union limited at Suite 101B on the first floor of 83 York Street, Sydney. There have been subsequent proceedings in an attempt to gain summary judgment against the second defendant which relief was denied by a Master of this Court apparently on the grounds that there was no proper service namely that at the time of leaving a copy of the writ an adult person at the said office was not shown a sealed copy thereof. Mr. Stewart for the second defendant appears here before me today and submits: (a) there is no evidence from which I could draw the conclusion comfortably that what occurred on the 13th November, 1986 led to the writ coming to the attention of the second defendant. He draws my attention to the fact that the office at which the writ was left was a credit union (and no apparent connection with the conduct of the affairs of an architect's practice). It emerges from the material of the plaintiff that the second defendant corporation has subsequently been deregistered and it is only as a result of the efforts of the plaintiff that it is back on the register of companies in New South Wales. Mr. Stewart suggests that because of these circumstances I could not be comfortably satisfied that the second defendant has received notice of the writ. I am unable to agree with this suggestion. All of the difficulties arise, in my view out, of the legitimate attempts of those persons who arrange the incorporation of the company in order to minimize their exposure to the taxation laws. If they -- 2 of 4 -- chose to make the registered office of a company practising as architects, the office of a credit union that is their problem. Similarly, if they didn't comply with the rules relating to the administration of corporations in New South Wales and the New South Wales Commissioner for Corporate Affairs removed the company from the register I cannot see how that that would be a fact from which the second defendant corporation could draw any comfort. The facts of the matter is that had the natural persons constituting the second defendant carried out their practice in their own names they would have been given copies of the writ personally and none of the predicaments to which Mr. Stewart has referred above would have befallen them. Clearly, they .would not have been served but I am not prepared to allow any advantages to accrue to the company by reason of its incorporation, its choice of registered office and its being struck from the register of companies. Further, Mr. Stewart points me to the fact that from the affidavit of Shelley Patricia Ward filed on the 28th April, 1990 in this Court and in particular Exhibit SPW7 namely the statement of claim of the first defendant (the corporate body) against the third party ( the Gold Coast City Council) it is alleged in paragraph 11(c) namely "the third party, its servants or agents determined that the height of the balustrading as constructed was sufficient to comply with the by-laws referred to in paragraph 9 hereof; such determination taking place orally between the Chief Building Inspector of the third party and a representative of the second defendant further particulars of which will be supplied after discovery and interrogatories herein." It emerges from the material of the plaintiff/applicant that the council documents can no longer be located and this leads to a potential prejudice in the second defendant. Again, if there is any prejudice in the second defendant by reason of this fact it is one in my view which would not lead me -- 3 of 4 -- i from the conclusion to which I am otherwise inevitably drawn. Presumably the second defendant as a corporation carrying out practices design architects will in itself have its own records which will be sufficient for its purposes at trial. It is clear that the limitation period has expired but the authorities namely Neilson v. Bundaberg Sugar Company 1985 1 Qd.R. 313 and Adam v. Shiavon 1985 1 Qd.R. 1 establish that this is not a "prejudice" within the meaning of the authority of Jones v. Jebras & Hill 1968 Qd.R. 13 or Crawford v. Brisbane Gas Company 1979 Qd.R. 226. Accordingly, therefore, I order that the writ 3500 of 1986 be renewed for a period of twelve months from today. -- 4 of 4 --