Arisoy v Yoogalu Pty Ltd - [2012] VSC 631

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. SCI 2010 5370

SERGUL ARISOY	Plaintiff
V
YOOGALU PTY LTD t/a HARVEY NORMAN	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2012
DATE OF JUDGMENT:	19 December 2012
CASE MAY BE CITED AS:	Arisoy v Yoogalu Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 631

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LIMITATION OF ACTIONS - Extension of period within which to sue – Limitation of Actions Act 1958 (Vic) s27K, s27L − Lack of evidence put forward by plaintiff in relation to the circumstances of and reasons for delay in bringing proceedings – Application for extension refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram	Clark Toop & Taylor
For the Defendant	Mr Scott Smith	Fitzpatrick Legal

HIS HONOUR:

Introduction

While shopping at a Harvey Norman store at Broadmeadows on 13 September 2007 Ms Arisoy (the plaintiff) claims she tripped on some carpet, fell over and injured her left shoulder and left elbow. A little over six months later, on 2 April 2008, she gave instructions to her present solicitors, Clark Toop & Taylor, concerning the accident. Under the Victorian Wrongs Act1958 she had until 13 September 2010 to bring any common law action against Harvey Norman (that is to say, against the occupier of the store) to recover damages for personal injury. This she failed to do.

Several weeks after the limitation period expired, her solicitors filed a generally endorsed writ against the present defendant, Yoogalu Pty Ltd, outlining the plaintiff’s claim for damages as a consequence of the alleged negligence or breach of duty of the occupier of the store. After failing to serve the writ within the required 12 month period, the solicitors obtained an extension of time within which to do so. They served a writ, together with a statement of claim, on 27 October 2011. Because there had been no prior warning of a pending claim, the defendant learned of the claim for the first time upon the service of the writ.

Ultimately, the defendant pleaded that the claim was statute barred. In response, the plaintiff applied for an extension of the limitation period under s 27K of the Limitation of Actions Act1958 (Vic) (the Act). It is that application with which I am principally concerned.

A separate issue concerned the true identity of the occupier of the Broadmeadows Harvey Norman store. But the parties now agree to the substitution of Broadstore Pty Ltd in place of the current named defendant, and I will make orders accordingly.

I then turn to the question of the extension of the limitation period.

Principles

Section 27K of the Act entitles a person in the position of Ms Arisoy to apply to the court for an extension of the applicable limitation period. The court hearing the application may order an extension of the applicable limitation period if it decides ‘it is just and reasonable to do so’.

Section 27L specifies what a…

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: [2012] VSC 631
Decision Date: 19 December 2012

CaseChat Overview and Summary

The case of Arisoy v Yoogalu Pty Ltd involved the plaintiff, Arisoy, bringing an application for an extension of time to commence proceedings against the defendant, Yoogalu Pty Ltd. The dispute centred on the plaintiff's failure to comply with statutory time limits for initiating legal action, as outlined in the Limitation of Actions Act 1958 (Vic). The matter was heard in the Supreme Court of Victoria, which was tasked with determining whether the plaintiff's application for an extension should be granted.

The primary legal issues before the court were whether the plaintiff had provided sufficient evidence to demonstrate the circumstances and reasons for the delay in bringing the proceedings and whether those circumstances warranted an extension under sections 27K and 27L of the Limitation of Actions Act 1958 (Vic). The court had to consider the plaintiff's explanation for the delay, the reasonableness of the delay, and whether any prejudice to the defendant would result if the extension were granted.

The Supreme Court found that the plaintiff had not provided adequate evidence to justify the delay in bringing the proceedings. The court held that the plaintiff's reasons for the delay were insufficient and did not meet the threshold required under the statutory provisions. Consequently, the court refused the plaintiff's application for an extension of time. The reasoning emphasised that the plaintiff had not demonstrated any exceptional circumstances or provided a compelling justification for the delay. The court concluded that the balance of prejudice to the defendant would outweigh any potential merits of the plaintiff's claim if the extension were granted.

As a result of the court's decision, the plaintiff's application for an extension of time to bring the proceedings was dismissed. The court did not grant the extension, and the plaintiff was unable to commence legal action beyond the statutory limitation period. This outcome underscored the importance of adhering to statutory time limits and the stringent requirements for demonstrating exceptional circumstances warranting an extension.

Orders