Brian v Burders Lane Enterprises Proprietary Limited

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District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Brian v Burders Lane Enterprises Proprietary Limited [2011] NSWDC 27
Hearing dates:4 March 2011
Decision date: 04 March 2011
Jurisdiction:Civil
Before: Neilson DCJ
Decision:

1) Statement of claim is dismissed;

2) I order the Plaintiff to pay the Defendant's costs of the proceedings;

3) Liberty to apply if Defendant seeks indemnity costs.

Catchwords: TORTS - negligence - liability of a company for acts / omissions of an earlier company whose business was carried on after its cessation of trade and dissolution by the company alleged to be liable - novel cause of action - whether a reasonable cause of action disclosed; LIMITATION OF ACTIONS - Limitation Act 1969 s 50C - when did Plaintiff have knowledge of the "fault" of the Defendant - accident occurred 20 May 2005 - Plaintiff had all relevant knowledge by 18 January 2007 - limitation period expired on 18 January 2010 - proceedings not commenced until 26 May 2010 - question of existence of insurance and identity of insurer irrelevant - statement of claim dismissed as field outside limitation period
Legislation Cited: Civil Liability Act 2007, s 513
Limitation Act 1969, s 50C
Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35
Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
Country Waste Systems Pty Ltd v Lauren Jane Wright [2007] NSWDC 287
CSR Ltd v Wren (1997) 44 NSWLR 463
J & V Pesl v Ray Smith Tractors & Anor [2007] NSWCA 74
James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554
McPherson's Ltd v Eaton & Ors [2005] NSWCA 435
Mutual Life & Citizens' Assurance Co Ltd v Evatt [1968] 122 CLR 556
Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254
Wyong Shire Council v Shirt (1980) 146 CLR 40
Category:Principal judgment
Parties: Daniel Keith Brian (Plaintiff)
Burders Lane Enterprises (Defendant)
Representation: Mr S. Kettle (Plaintiff)
Mr T. Anderson (Defendant)
Stacks/Goudkamp (Plaintiff)
Harris Lieberman (Defendant)
File Number(s):2010/130952

Judgment

  1. HIS HONOUR: This is a notice of motion filed on 18 November 2010. The first prayer for relief is that the statement of claim is struck out pursuant to UCPR 14.28(1). The second prayer for relief is that the statement of claim be dismissed on the grounds of its being brought outside the period provided by s 50C of the Limitation Act 1969.

  1. It is common ground that on 20 May 2005 the plaintiff was severely injured. He sustained an almost complete severing of his right hand. At the time he was using a woodsplitter that is known as a "Super Axe", and the model in question was WS400. That woodsplitter was manufactured in August 1998 by Whitlands Engineering Pty Ltd (ACN 076 766 080). I shall hereafter refer to that company as "080".

  1. 080 was Incorporated as Seaquesta Pty Ltd on 12 December 1996. On 17 February 1997, Mr David Burder was appointed as a director of 080.…

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Details
Case
[2011] NSWDC 27
Decision Date

CaseChat Overview and Summary

In the case of Brian v Burders Lane Enterprises Proprietary Limited, the plaintiff, Mr Brian, sought to hold the defendant, Burders Lane Enterprises, liable for injuries sustained in an accident that occurred on 20 May 2005. The legal dispute centred around the defendant's liability for the acts or omissions of an earlier company that ceased trade and was dissolved before the defendant began operations. The plaintiff argued that the defendant should be held accountable under a novel cause of action due to the continuity of the business. The Federal Circuit Court was tasked with determining whether the plaintiff had disclosed a reasonable cause of action and whether the claim was within the limitation period.

The court identified two primary legal issues. The first was whether the plaintiff had disclosed a reasonable cause of action against the defendant for the negligence of the earlier company. The second was whether the plaintiff's claim was within the limitation period, considering that the plaintiff had all relevant knowledge by 18 January 2007, and the limitation period expired on 18 January 2010. The court also considered the impact of the Limitation Act 1969, particularly section 50C, which sets out the circumstances for the commencement of proceedings.

The court concluded that the plaintiff had not disclosed a reasonable cause of action against the defendant for the negligence of the earlier company. Furthermore, the court held that the plaintiff had all relevant knowledge by 18 January 2007, and the limitation period expired on 18 January 2010. As the plaintiff did not commence proceedings until 26 May 2010, the court found the claim to be outside the limitation period. The existence of insurance and the identity of the insurer were deemed irrelevant to the outcome. Consequently, the court dismissed the statement of claim and ordered the plaintiff to pay the defendant's costs of the proceedings. The court also granted liberty to apply if the defendant sought indemnity costs.

Orders

Orders of the court

1) Statement of claim is dismissed;

2) I order the Plaintiff to pay the Defendant's costs of the proceedings;

3) Liberty to apply if Defendant seeks indemnity costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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