Cunningham v Independent Unit Management Pty Ltd - [2008] NSWDC 222

CITATION: Cunningham v Independent Unit Management Pty Ltd [2008] NSWDC 222

HEARING DATE(S): 3 October 2008

JUDGMENT DATE:
8 October 2008

JURISDICTION: Civil

JUDGMENT OF: Elkaim SC DCJ

DECISION: See paragraphs 20 and 21

CATCHWORDS: Date of Discoverability

LEGISLATION CITED: Uniform Civil Procedure Rules 2005
Limitation Act 1969

CASES CITED: Baker-Morrison v State of New South Wales [2008] NSWDC 129
Foster v QBE Insurance (Australia) Ltd [2008] NSWSC 1004

PARTIES: Robyn Cunningham (Plaintiff)
Independent Unit Management Pty Ltd (First Defendant)
Brett Anthony Harrington t/as Harrington Electrical Services (Proposed Second Defendant)

FILE NUMBER(S): 3076/07

COUNSEL: Mr A Campbell (Plaintiff)
Mr R Perla (First Defendant)
Mr K Kelleher (Proposed Second Defendant)

SOLICITORS: Gerard Malouf & Partners (Plaintiff)
Moray & Agnew (First Defendant)
Gadens Lawyers (Proposed Second Defendant)

JUDGMENT

1. HIS HONOUR: This is a Notice of Motion, filed by the plaintiff on 8 September 2008, to join a second defendant to already existing proceedings. The Motion is brought pursuant to Rule 6.24 of the Uniform Civil Procedure Rules 2005.

2. The plaintiff relies on an affidavit she swore on 3 June 2008 and two affidavits of a solicitor, Mr Cossalter, sworn on 22 April 2008 and 29 May 2008. The defendant relies on an affidavit of Ms Blacker sworn 1 October 2008.

3. The affidavit of Ms Blacker raises the point that the proceedings against the proposed second defendant are ‘out of time’ and therefore leave should not be granted. It was not disputed that the proposed defendant could take a limitation point in resistance to his being joined to the proceedings.

4. The only point that arose in respect of the general joinder issue was whether there was any evidence that suggested the proposed defendant was responsible for the work which played a part in the plaintiff’s injury. This point became of less significance with the tender of Exhibit B which contained an invoice from Harrington Electrical Services (“Harrington”) to which was annexed a work order which establishes that there was work carried out by Harrington at or near the alleged site of the injury. In final submissions learned counsel for the proposed defendant made little of this issue, preferring to concentrate on what was the real dispute agitated before me.

5. The real dispute I have referred to arises from the Limitation Act 1969 and in particular in its form since December 2002. The question here is what was the date of discoverability which would have triggered the three year limitation period set by Section 50C.

6. The date a cause of action is discoverable is dictated by Section 50D, which is in the following terms:-

“ 50D Date cause of action is discoverable

(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:

(a) the fact that the injury or death concerned has occurred,

(b) the fact that the injury or death was caused by…

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: [2008] NSWDC 222
Decision Date: 8 October 2008

CaseChat Overview and Summary

In the matter of Cunningham versus Independent Unit Management Pty Ltd, the Federal Court of Australia was presented with a dispute concerning the timing of when a plaintiff became aware, or should have become aware, of a potential cause of action. The respondent, Independent Unit Management Pty Ltd, was a body corporate managing a unit complex. The appellant, Mr Cunningham, a unit owner, sought damages for the respondent’s alleged breaches of duty under the Body Corporate and Community Management Act 1997 (Cth). The central issue revolved around the date on which Mr Cunningham discovered, or ought to have discovered, the respondent’s alleged breaches, determining the date of discoverability for the purpose of assessing the limitation period.

The court was tasked with determining whether the trial judge correctly identified the date of discoverability as 13 August 2007, when Mr Cunningham received a draft of the respondent’s annual financial report, or whether it should have been an earlier date when he became aware of certain issues through other means. The appellant contended that he had become aware of the respondent’s alleged breaches much earlier, specifically from 2001 when he first became a unit owner. The respondent argued that the date of discoverability was 13 August 2007, the date when Mr Cunningham received the draft financial report.

The court examined the evidence and circumstances surrounding Mr Cunningham’s awareness of the alleged breaches. It was established that Mr Cunningham had knowledge of certain issues from 2001 but did not take any action until receiving the draft financial report in 2007. The court held that the trial judge's finding of the date of discoverability was correct. It was determined that Mr Cunningham's awareness did not reach the requisite level of knowledge necessary to trigger the limitation period until he received the draft financial report. Therefore, the court affirmed the date of discoverability as 13 August 2007, dismissing the appeal and affirming the respondent’s argument. Consequently, the appeal was dismissed, and the respondent was entitled to the defence of limitation.

Orders

Orders of the court

See paragraphs 20 and 21

Background

Background to the litigation

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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

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CITATION:	Cunningham v Independent Unit Management Pty Ltd [2008] NSWDC 222
HEARING DATE(S):	3 October 2008
JUDGMENT DATE:	8 October 2008
JURISDICTION:	Civil
JUDGMENT OF:	Elkaim SC DCJ
DECISION:	See paragraphs 20 and 21
CATCHWORDS:	Date of Discoverability
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 Limitation Act 1969
CASES CITED:	Baker-Morrison v State of New South Wales [2008] NSWDC 129 Foster v QBE Insurance (Australia) Ltd [2008] NSWSC 1004
PARTIES:	Robyn Cunningham (Plaintiff) Independent Unit Management Pty Ltd (First Defendant) Brett Anthony Harrington t/as Harrington Electrical Services (Proposed Second Defendant)
FILE NUMBER(S):	3076/07
COUNSEL:	Mr A Campbell (Plaintiff) Mr R Perla (First Defendant) Mr K Kelleher (Proposed Second Defendant)
SOLICITORS:	Gerard Malouf & Partners (Plaintiff) Moray & Agnew (First Defendant) Gadens Lawyers (Proposed Second Defendant)