Cunningham v Moorevest Pty Ltd - [2016] WADC 38

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CUNNINGHAM -v- MOOREVEST PTY LTD [2016] WADC 38

CORAM: GOETZE DCJ

HEARD: 7 DECEMBER 2015 & 28 JANUARY 2016

DELIVERED : 18 MARCH 2016

FILE NO/S: CIVO 98 of 2015

MATTER :IN THE MATTER of s 38 and s 39 of the Limitation Act 2005

BETWEEN: GRAHAM LEE CUNNINGHAM
Plaintiff
AND
MOOREVEST PTY LTD
Defendant

Catchwords:

Application for extension of time within which to commence proceedings for personal injuries arising by accident - Whether operating shopping centre under a name requires registration as a business name - Alleged improper conduct of the defendant by not registering a business name - Reasonable enquiry to establish identity of entity to whom injury at the shopping centre is attributable - Turns on own facts

Legislation:

Business Names Act 1962 (WA)
Business Names (Commonwealth Powers) Act 2012 (Cth)
Business Names Registration Act 2011 (Cth)
Limitation Act 2005 (WA)
Occupier's Liability Act 1985 (WA)

Result:

Application granted

Representation:

Counsel:

Plaintiff: Mr E J Myers
Defendant: Mr A Basile

Solicitors:

Plaintiff: Stephen Browne Lawyers
Defendant: SRB Legal

Case(s) referred to in judgment(s):

AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Ghiassi v Industrial People Pty Ltd [2012] WADC 23

GOETZE DCJ:

Introduction

On 7 May 2012 at Maddington Village Shopping Centre car park, 134 Westfield Street, Maddington, the plaintiff, Mr Cunningham, fell from his bicycle and suffered injury.
On 24 March 2015, Mr Cunningham consulted Stephen Browne Lawyers to make a claim for his personal injury and loss arising from the fall. The lawyers searched the Business Name Register relating to Maddington Village Shopping Centre and ascertained that that name was then registered to Federation Custodian Pty Ltd.
Next, with only this investigation and without further enquiry or any correspondence to any possible interested party, the lawyers issued a writ of summons on behalf of Mr Cunningham, naming Federation Custodian as the defendant.
After the writ was served, and subsequent to the expiration of the three‑year limitation period for Mr Cunningham to have commenced his action for damages, the lawyers learned for the first time that, in 2010, Federation Custodian had sold the shopping centre to Moorevest Pty Ltd.
It is common ground between the parties that, by s 14 of the Limitation Act 2005 read with s 55 thereof, the time limit for Mr Cunningham to have commenced his action for damages expired on 6 May 2015.
By this application, Mr Cunningham now seeks to extend the time to commence his action pursuant to:
(a)Section 38 of the Limitation Act 2005 (WA), in that his failure to commence the action is attributable to the improper conduct of the defendant, Moorevest, or a person for whom it is vicariously liable in that Moorevest did not lodge the prescribed form in respect of it commencing to carry on the business of Maddington Village Shopping Centre, as required by legislation relating to business names; and/or
(b)Section 39(3)(c) and s 39(4)(c) of the Limitation…

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 Cunningham v Moorevest Pty Ltd

Details

AGLC: Cunningham v Moorevest Pty Ltd [2016] WADC 38
Case: [2016] WADC 38
Decision Date: 18 MARCH 2016

CaseChat Overview and Summary

The case of Cunningham v Moorevest Pty Ltd involves an application by the plaintiff for an extension of time to commence proceedings for personal injuries sustained at a shopping centre. The central dispute hinges on whether operating a shopping centre under a name requires registration as a business name, and whether the defendant's failure to do so constitutes improper conduct. The plaintiff argues that the delay in identifying the correct entity to sue within the statutory limitation period was due to the defendant's failure to register its business name, while the defendant contends that the plaintiff's own failure to conduct further inquiries contributed to the delay.

The primary legal issue before the court was whether to extend the time limit for the plaintiff to commence proceedings against the defendant for personal injuries. The court had to consider whether the delay in bringing the action would unacceptably diminish the prospects of a fair trial and whether extending the time would significantly prejudice the defendant. The court found that the delay would not unacceptably diminish the prospects of a fair trial and that the defendant would not be significantly prejudiced other than by the commencement of the proposed action. The court also noted that the defendant had been on notice of the formal claim since July 2015 and that the failure to conduct further enquiries once difficulties emerged was a contributing factor to the plaintiff's predicament. The court concluded that any prejudice in delay was of the plaintiff's own making and that immediate steps were taken to rectify the position once the mistake was pointed out.

The court granted the plaintiff's application for an extension of time to commence proceedings, acknowledging that the defendant's failure to register its business name contributed to the delay. The court emphasised that the plaintiff was a layman who placed his faith in personal injury lawyers, and that had the defendant lodged a statement of its commencement to carry on business under the business name, the correct entity would have been established on a search of the Business Names Register. The court found that the plaintiff's failure to conduct further enquiries once difficulties emerged was a contributing factor to the delay, but that immediate steps were taken to rectify the position once the mistake was pointed out. The court held that the delay in bringing the action would not unacceptably diminish the prospects of a fair trial and that extending the time would not significantly prejudice the defendant.

The final orders of the court included an extension of time for the plaintiff to commence proceedings and a direction that the defendant pay the plaintiff's costs of the application. The court emphasised that the delay in bringing the action was not due to any fault on the part of the defendant and that the plaintiff's own failure to conduct further enquiries once difficulties emerged was a contributing factor to the delay. The court held that the plaintiff's failure to conduct further enquiries once difficulties emerged was a contributing factor to the delay, but that immediate steps were taken to rectify the position once the mistake was pointed out. The court granted the plaintiff's application for an extension of time to commence proceedings and directed that the defendant pay the plaintiff's costs of the application.

Orders

Orders of the court

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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

Section 44 of the Limitation Act provides as follows:44. Further matters for court’s consideration on extension applicationsWhen deciding, on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to — (a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and(b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action). It is not suggested that the delay in commencing the proposed action would unacceptably diminish the prospects of a fair trial of the action or that Moorevest would be significantly prejudiced other than by reason only of the commencement of the proposed action. To now allow the extension after the expiration of the limitation period will not prejudice the proposed defendant because Moorevest has been on notice of the formal claim since July 2015. Indeed, Mr Moore was given oral notice in March 2015. When reporting to Moorevest's insurance broker on 21 March 2015, Mr Moore wrote:Repairs to the car park have been consistently undertaken by ourselves using bitumen, blue metal and sand to reduce the risk, prior to spending a large amount in November 2014 for brand new asphalt to be laid.In my opinion, we have done everything possible to reduce the risk, and it is our intention to continue to renew the remainder of the car park with further fresh bitumen when funds become available. In the meantime, crushed blue metal is placed in any holes. It is however appropriate to note that the failure by Mr Cunningham, through his lawyers, to conduct further enquiry once difficulties emerged in the face of Mr Cunningham having provided the name of Moorevest to the lawyers is a contributing factor to the predicament in which Mr Cunningham now finds himself. He is however, a layman who put his faith in personal injury lawyers. Had Moorevest lodged a statement of its commencement to carry on business under the business name, the correct entity would have been established on a search of the Business Names Register and Moorevest then would have been named as the defendant within the limitation period. This in itself indicates that any prejudice in delay from March 2015, before the expiration of the limitation period, to the present is of its own making. Once the mistake was pointed out to Mr Cunningham's solicitors, immediate steps were taken to rectify the position.