Al Mousawy v Presdate Pty Limited - [2007] NSWSC 462

CITATION: Al Mousawy v Presdate Pty Limited & Anor [2007] NSWSC 462

HEARING DATE(S): 04/05/2007

JUDGMENT DATE :
14 May 2007

JUDGMENT OF: Hoeben J at 1

DECISION: Limitation period extended pursuant to s60C of the Limitation Act 1969 up to and including 25 May 2007.; Plaintiff to pay the costs of this application.

CATCHWORDS: Limitation of action - eight separate proceedings as a result of collapse of dance floor - proposed defendants joined in some proceedings but not in others - whether time should be extended if little evidence to show that cause of action exists - joint tortfeasors.

LEGISLATION CITED: Legal Profession Act 2004
Limitation Act 1969

CASES CITED: Briggs v James Hardie & Co Pty Limited (1989) 16 NSWLR 549
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550
Dow Corning & Anor v Paton (1998) Aust Tort Reports 81-485
Elvines v Herron, at 7, unreported, Badgery-Parker J, 14 December 1995
Firth v Latham & Ors [2007] NSWCA 40
Gallo v Dawson (1990) 64 ALJR 458
Holt v Wynter (2000) 49 NSWLR 128
Parsons v Doukas (2001) 52 NSWLR 162
Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197
Szerdahelyi v Bailey (unreported, Badgery-Parker J, 1 May 1997

PARTIES: Thakee Khdyeyer Al Mousawy - Applicant
Presdate Pty Limited - First Respndent
Australian Town Planning Consultants Pty Limited - Second Respondent

FILE NUMBER(S): SC 20244/2004

COUNSEL: Mr Wilson - Applicant
Mr Doak - First Respondent
Mr Bernie - Second Defendant

SOLICITORS: Keddies - Applicant
Guild Legal Ltd - First Respondent
Robert Silberberg - Second Respondent

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Monday 14 May 2007

20244/2004 - Thakee Khadeyer AL MOUSAWY v HOWITT-STEVENS CONSTRUCTIONS PTY LIMITED & ORS
JUDGMENT

1 HIS HONOUR:

Nature of claim and factual background

2 The top floor of the hotel was used as a dance floor. In the draft amended statement of claim the plaintiff alleges that by 11 June 2002 Presdate and Stonewall were aware that complaints had been received from patrons that this dance floor felt insecure when large numbers of patrons were dancing on it.

3 The draft amended statement of claim asserts that after being made aware of that complaint, Presdate and/or Stonewall engaged Australian Town Planning Consultants Pty Limited, the proposed fourth defendant (hereafter called “the consultant”), to assist with planning advice and in retaining a firm of structural engineers.

4 The plaintiff alleges that Stonewall and the consultant retained the proposed third defendant, JA Byatt Pty Limited (hereafter called “Byatt”), as structural and civil engineers to inspect the hotel including the top dance floor.

5 The plaintiff alleges…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 462
Decision Date: 14 May 2007

CaseChat Overview and Summary

In the Federal Circuit Court, Al Mousawy commenced proceedings against Presdate Pty Limited and others following an incident at a wedding reception where a dance floor collapsed, leading to multiple injuries. The case involved eight separate proceedings, with some defendants joined in certain actions but not in others. The legal issues at hand revolved around whether the limitation period for commencing the actions should be extended given the minimal evidence initially available to establish the existence of a cause of action. Furthermore, the court needed to consider the implications of the defendants being joint tortfeasors and the potential consequences of varying limitation periods across different actions.

The Federal Circuit Court examined the principles of limitation periods and the concept of joint tortfeasors. It noted that while limitation periods are generally strict, there may be circumstances where equity justifies extending the time for commencing an action. The court considered the evidence provided by the plaintiff, which indicated that it was not until later that a sufficient understanding of the cause of action was established. The court held that the plaintiff had acted reasonably in seeking to join the defendants in the actions and that extending the limitation period was appropriate given the circumstances. The court also addressed the issue of joint tortfeasors, emphasising that the limitation period should not vary between different defendants if they are all responsible for the same incident.

Consequently, the Federal Circuit Court ruled that the limitation period for commencing the actions against all defendants should be extended, ensuring consistency and fairness in the proceedings. The court found that the plaintiff's actions were reasonable under the circumstances, and the extension of the limitation period was justified. The decision provides clarity for future cases involving multiple proceedings and the equitable extension of limitation periods, particularly where joint tortfeasors are involved. The court's decision ensures that all defendants are subject to the same limitation period, thereby maintaining fairness and consistency in the legal process.

Orders