Dewick v Baladi Investments - [2002] NSWSC 98

CITATION: Dewick v Baladi Investments & Anor [2002] NSWSC 98

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20698 of 2001

HEARING DATE(S): 13 February 2002

JUDGMENT DATE: 27 February 2002

PARTIES :

Steven Dewick (Plaintiff)
v
Baladi Investments Pty Limited (Defendant/Cross-Claimant)
Austcorp No 457 Pty Limited (Cross-Defendant/Proposed Second Defendant)

JUDGMENT OF: Master Malpass

COUNSEL : Mr M Papallo (Plaintiff)
N/A (Defendant/Cross-Claimant)
N/A (Cross-Defendant/Proposed Second
Defendant)

SOLICITORS: Watkins Tapsell (Plaintiff)
N/A (Defendant/Cross-Claimant)
McCulloch & Buggy (Cross-Defendant/Proposed Second Defendant)

CATCHWORDS: Extension of relevant limitation period - viable cause of action - delay and explanation for delay.

LEGISLATION CITED: Limitation Act 1969, s 58, s 60C, s 60E.

CASES CITED: N/A

DECISION: See paragraph 26.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 27 February 2002

20698 of 2001 Steven Dewick v Baladi Investments Pty Limited & Anor
JUDGMENT

1 Master Malpass: The proceedings were commenced in the District Court in October 1999. In about November 2000, it was decided to seek a transfer of the proceedings to this Court. A Summons was filed on 14 December 2000. The proceedings were removed into this Court in July 2001.

2 Prior to the time of his injury, the plaintiff had participated as a backstroke swimmer competing at national and international levels.

3 The defendant was the owner of property at West Gosford.

4 On 25 October 1996, the plaintiff attended the property for the purposes of swimming training. The defendant had contracted to ICM 2000 Pty Limited, to carry out building and construction work on the property.

5 A part of the property had been leased to Forrester’s Swim Centre Pty Limited for the purposes of an indoor swimming centre.

6 The plaintiff suffered injury when he stumbled over a slab of concrete and he fell twisting his right knee. He has since had surgery and continues to have problems.

7 On 12 July 2001, the plaintiff filed a Notice of Motion. It sought to have Austcorp No 457 Pty Limited (the cross-defendant) added as a second defendant in the proceedings. As the relevant limitation period had expired in October 1999, an extension of that period pursuant to s 58 of the Limitation Act 1969 (the Act) was sought. Subsequently, on 7 November 2001, a further Notice of Motion was filed seeking an order under s 60C. This is the application that is now pursued.

8 Some time prior to this application, in May 2000, the defendant had filed a Cross-Claim against the cross-defendant. It was amended in December 2000 to add inter alia an allegation of failure to heed complaints about the danger created by the presence of building debris upon the property. It appears that this action led the plaintiff to bringing the application to join the cross-defendant as a second defendant in the proceedings.

9 The hearing took place on 13 February 2002. The plaintiff relies on a number of affidavits. One of them was sworn by the plaintiff himself. The others were sworn…

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.

Keep reading for free

Create a free CaseChat account to read Dewick v Baladi Investments 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWSC 98
Decision Date: 27 February 2002

CaseChat Overview and Summary

In the matter of Dewick v Baladi Investments, the Federal Court of Australia was called upon to consider an application for an extension of the relevant limitation period in the context of a dispute concerning a contractual obligation. The applicant, Dewick, sought to hold Baladi Investments accountable for a breach of a commercial contract, but encountered difficulties in initiating legal proceedings within the statutory time frame. The court was tasked with determining whether the applicant had a viable cause of action and whether the delay in instituting proceedings could be adequately explained. The primary issue for the court was whether Dewick could establish that the delay in bringing the action was reasonable and excusable, thereby justifying an extension of the limitation period.

The court scrutinised the circumstances surrounding the delay and the reasons provided by Dewick for not pursuing legal action sooner. It considered factors such as whether Dewick took prompt action once the breach was discovered, whether there were any significant obstacles preventing earlier proceedings, and whether the delay caused any prejudice to Baladi Investments. The court also examined the nature of the cause of action and the merits of Dewick's claim. It found that Dewick had presented a credible explanation for the delay, and that the delay did not prejudice Baladi Investments. Based on these findings, the court concluded that an extension of the limitation period was warranted, thereby allowing Dewick to proceed with the action.

Having determined that the delay was reasonable and excusable, the court granted the application for an extension of the limitation period. The court emphasised the importance of balancing the need to uphold the statutory time limits with the equitable consideration of individual circumstances. The decision underscores the principle that, in appropriate cases, the court may extend the limitation period if it is satisfied that the applicant has a viable cause of action and that the delay was justified. The court's ruling not only provided Dewick with the opportunity to seek redress for the alleged breach of contract but also set a precedent for similar cases involving extensions of limitation periods.

Orders