Boitalik v Alchin

District Court

New South Wales

Medium Neutral Citation:	Boitalik v Alchin [2019] NSWDC 256
Hearing dates:	22 May 2019; 12 June 2019
Date of orders:	13 June 2019
Decision date:	13 June 2019
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Pursuant to s 110(5) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff's claim is reinstated. (2) The plaintiff is to file and serve his proposed Statement of Claim which is Annexure A to the affidavit of David Marocchi sworn 8 April 2019 upon the defendant within 14 days. (3) The plaintiff's costs of the Summons are to be costs in the cause. (4) A party may apply to vary the costs order in (3) above within 14 days.
Catchwords:	Torts – negligence – motor vehicle accident – application by plaintiff to reinstate his claim – whether the plaintiff has a full and satisfactory explanation for the failure to comply with a notice issued by the defendant's insurer
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 110
Cases Cited:	Buller v Black [2003] NSWCA 45 Dijakovic v Perez [2015] NSWCA 174 Ellis v Reko Pty Ltd [2010] NSWCA 319 Gower v State of New South Wales [2018] NSWCA 132 Hickey’s Transport Pty Ltd v Gordon [2008] NSWCA 167 Karambelas v Zaknic (No 2) [2014] NSWCA 433 McNamara v Fitzgibbon [2005] NSWCA 274 Nominal Defendant v Browne [2013] NSWCA 197 Smith v Grant [2006] NSWCA 244 Walker v Howard [2009] NSWCA 408
Category:	Principal judgment
Parties:	Shajaham Boitalik (Plaintiff) Mark Alchin (Defendant)
Representation:	Counsel: M Sciglitano (Plaintiff) J Quach (Defendant) (Solicitor)   Solicitors: Paramount Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2019/00108878

Judgment

1. In these proceedings, the plaintiff, Mr Shajaham Boitalik, by way of Summons filed on 8 April 2019, seeks an order that leave be granted to him to reinstate his claim against the defendant arising out of a motor vehicle accident alleged to have occurred on 20 February 2017 in Mascot in Sydney in New South Wales. The plaintiff also seeks an order that he file and serve his proposed Statement of Claim upon the defendant and/or his insurer within 14 days and related relief.

2. The defendant neither consents nor opposes the application.

The relevant legislation

3. The Summons states that the application is brought by the plaintiff pursuant to s 110(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”).

4. Section 110 of MACA provides as follows:

“110   Insurer may require claimant to commence court proceedings

(1)  The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:

(a)  the claimant has been entitled to commence the proceedings for a period of at least 6 months, and

(b)  at least 18 months have elapsed since the date of the motor accident to which the claim relates.

(2)  The claimant must comply with the notice within 3 months after its receipt.

(3)  If the claimant does…