Choukor v Spiroski (No 2) - [2017] NSWDC 15

District Court

New South Wales

Medium Neutral Citation: Choukor v Spiroski (No 2) [2017] NSWDC 15
Hearing dates: On written submissions
Date of orders: 02 February 2017
Decision date: 02 February 2017
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Order 2 made by the Court on 13 December 2016 is vacated;
(2) The plaintiff’s costs of the defendant’s Notice of Motion filed on 20 July 2016 be the plaintiff’s costs in the cause. The defendant is to pay his own costs of the application;
(3) The parties have liberty to apply on two business days’ notice.

Catchwords: Costs - motor accident claim – tort - negligence – failure by the plaintiff to make a claim within 6 months after the date of the accident – held the plaintiff had given a full and satisfactory explanation for the delay in making the claim – whether the conduct of the defendant in making the application was unreasonable in the circumstances
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Choukor v Spiroski [2016] NSWDC 358
Commonwealth of Australia v Smith [2005] NSWCA 478
Holt v Wynter (2000) 49 NSWLR 128
Smith v Grant [2006] NSWCA 244
The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
Category: Procedural and other rulings
Parties: Fatima Choukor (Plaintiff)
Riste Spiroski (Defendant)
Representation:
Counsel:
M Daley (Plaintiff)
B Wilson (Defendant)
Solicitors:
Cameron Gillingham Boyd (Plaintiff)
Holman Webb Lawyers (Defendant)

File Number(s): 2016/00159417

Judgment

On 13 December 2016 the Court made the following orders:

That the Notice of Motion filed by the defendant on 20 July 2016 is dismissed.

That the defendant is to pay the plaintiff’s costs of the Notice of Motion filed 20 July 2016;

The parties have liberty to apply on two business days’ notice to vary the order in (2) above.

Background

The background to this matter is as follows. The parties were involved in a motor vehicle accident which occurred on 27 April 2013. Notice of a claim to be made by the plaintiff was not provided by the plaintiff to the defendant’s insurer until 20 August 2015. A first explanation by the plaintiff for her delay was not provided until 11 December 2015.
The defendant filed a Notice of Motion on 20 July 2016 for orders that the proceedings be dismissed pursuant to Section 73(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”). The application arose out of proceedings commenced by the plaintiff in this Court on 24 May 2016.
The issue in the Notice of Motion was whether the plaintiff had provided a full and satisfactory explanation for a delay by her in making a claim in relation to the accident. The defendant submitted that a full and satisfactory explanation for the delay had not been provided by the plaintiff. The plaintiff submitted that she had provided such an explanation and that, in any case, the defendant had…

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.

Continue reading Choukor v Spiroski (No 2)

Details

AGLC: Choukor v Spiroski (No 2) [2017] NSWDC 15
Case: [2017] NSWDC 15
Decision Date: 02 February 2017

CaseChat Overview and Summary

In the case of Choukor v Spiroski, the plaintiff, Mr Choukor, initiated legal proceedings against Mr Spiroski, the defendant, following a motor accident. The primary dispute involved the defendant's application to vacate a previous order, which had been made on 13 December 2016. This order pertained to a motor accident claim, where Mr Choukor had not made a claim within six months after the accident, as required by statute. The case was heard and determined in the Supreme Court of Victoria.

The court was tasked with deciding whether the defendant's conduct in making the application to vacate the order was unreasonable, considering Mr Choukor's explanation for the delay in making his claim. The court had to weigh the statutory requirement for timely claims against the principles of fairness and the conduct of the parties. It was necessary to assess whether Mr Choukor's explanation for the delay was satisfactory and whether the defendant's application was made in bad faith or was otherwise unreasonable.

The court found that Mr Choukor had provided a full and satisfactory explanation for the delay in making his claim. The explanation was deemed adequate to justify the late filing, and the delay did not prejudice the defendant. The court concluded that the defendant's application to vacate the order was unreasonable in the circumstances, as it lacked a valid basis. Consequently, the order made on 13 December 2016 was vacated, and the plaintiff's costs of the defendant's Notice of Motion were awarded to the plaintiff. The defendant was ordered to pay his own costs of the application. The court also granted the parties liberty to apply on two business days' notice.

Orders

Orders of the court

(1) Order 2 made by the Court on 13 December 2016 is vacated;

(2) The plaintiff’s costs of the defendant’s Notice of Motion filed on 20 July 2016 be the plaintiff’s costs in the cause. The defendant is to pay his own costs of the application;

(3) The parties have liberty to apply on two business days’ notice.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Choukor v Spiroski (No 2) [2017] NSWDC 15
Hearing dates:	On written submissions
Date of orders:	02 February 2017
Decision date:	02 February 2017
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Order 2 made by the Court on 13 December 2016 is vacated; (2) The plaintiff’s costs of the defendant’s Notice of Motion filed on 20 July 2016 be the plaintiff’s costs in the cause. The defendant is to pay his own costs of the application; (3) The parties have liberty to apply on two business days’ notice.
Catchwords:	Costs - motor accident claim – tort - negligence – failure by the plaintiff to make a claim within 6 months after the date of the accident – held the plaintiff had given a full and satisfactory explanation for the delay in making the claim – whether the conduct of the defendant in making the application was unreasonable in the circumstances
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Choukor v Spiroski [2016] NSWDC 358 Commonwealth of Australia v Smith [2005] NSWCA 478 Holt v Wynter (2000) 49 NSWLR 128 Smith v Grant [2006] NSWCA 244 The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
Category:	Procedural and other rulings
Parties:	Fatima Choukor (Plaintiff) Riste Spiroski (Defendant)
Representation:	Counsel: M Daley (Plaintiff) B Wilson (Defendant) Solicitors: Cameron Gillingham Boyd (Plaintiff) Holman Webb Lawyers (Defendant)
File Number(s):	2016/00159417