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 408Category: Principal judgment Parties: Shajaham Boitalik (Plaintiff)
Mark Alchin (Defendant)Representation: Counsel:
Solicitors:
M Sciglitano (Plaintiff)
J Quach (Defendant) (Solicitor)
Paramount Lawyers (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2019/00108878
Judgment
-
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.
-
The defendant neither consents nor opposes the application.
The relevant legislation
-
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”).
-
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…
Keep reading for free
Create a free CaseChat account to read Boitalik v Alchin and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2019] NSWDC 256
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the plaintiff had provided a full and satisfactory explanation for his failure to comply with the notice. The court considered the plaintiff's affidavit, which outlined the reasons for the delay and the steps taken to remedy the situation. The court also considered the insurer's response and the relevant statutory provisions, particularly section 110(5) of the Motor Accidents Compensation Act 1999 (NSW).
The court found that the plaintiff had provided a satisfactory explanation for his failure to comply with the notice and that there were mitigating circumstances that warranted reinstatement of the claim. The court ordered that the plaintiff's claim be reinstated and directed the plaintiff to file and serve his proposed Statement of Claim within 14 days. The court also ordered that the plaintiff's costs of the summons were to be costs in the cause, but allowed for the possibility of varying this order within 14 days.
Orders
Orders of the court
(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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.