Frangie bht Frangie v Takchi - [2014] NSWDC 58

District Court

New South Wales

Medium Neutral Citation: Frangie bht Frangie v Takchi [2014] NSWDC 58
Hearing dates: 17-18 July 2013, 7-8 November 2013
Decision date: 10 April 2014
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
Stood over for further hearing to determine whether order for separate trial should be revoked.

Catchwords: PRACTICE AND PROCEDURE - limitation period - disability - whether plaintiff substantially impeded by reason of impairment of mental condition - separate trial - whether appropriate
Legislation Cited: Civil Procedure Act 2005, s 56
Limitation Act 1969, s 11, s 14, s 52
Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Bailey and Bailey v Director-General Department of Energy Climate Change and Water and 2 Ors [2010] NSWSC 979
CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601
Commonwealth Bank of Australia v Clune and Anor [2008] NSWSC 1125
Dunstan v Simmie and Co Pty Ltd [1978] VR 669
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
Ford v Greer [2008] NSWSC 1181
Hoban v New South Wales Land and Housing Corporation [2008] NSWSC 1121
Langley v AMP Capital Investors Limited [2007] NSWSC 937
Neumann Contractors Pty Ltd v Wyong Shire Council [2011] NSWSC 481
O'Toole v Charles David Pty Ltd (1990) 171 CLR 232
Piercy v Young (1880) 15 Ch D 475
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66
Texts Cited: Ritchie's Uniform Civil Procedure NSW
Category: Separate question
Parties: Solomon Frangie by his tutor Joseph Frangie (plaintiff)
Edward J Takchi trading as Takchi & Associates (defendant)
Representation: Mr J Turnbull (plaintiff)
Ms K Stern SC (defendant)
Blackstone Waterhouse Lawyers (plaintiff)
Colin Biggers & Paisley (defendant)

File Number(s): 2011/260473
Publication restriction: None

Judgment

Introduction

On 25 June 2003 Solomon Frangie purchased a property. In around 2006 it was sold at a loss. Edward Takchi had been his solicitor. On 12 August 2011 Mr Frangie sued Mr Takchi for negligently completing the purchase. Mr Takchi pleaded that the claim of Mr Frangie was out-of-time. Mr Frangie says he was under a disability and so time did not run against him.

The question of whether Mr Frangie was under a disability has been ordered to be tried separately. The question is stated in the following terms:

"Has the Plaintiff suffered from a disability within the meaning of sections 11(3) and 52 of the Limitation Act, 1969 (NSW) during the period since 17 September 2003, and, if so, for what period was the Plaintiff under such disability?"

Background

The following matters appear from the evidence. They should not be taken as final determinations or exhaustive findings on the matter for reasons that will become apparent.

Mr Frangie and Harry Frome, his business partner, proposed…

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: [2014] NSWDC 58
Decision Date: 10 April 2014

CaseChat Overview and Summary

In the case of Frangie bht Frangie v Takchi, the plaintiff sought damages for personal injury sustained in a motor vehicle accident. The dispute before the court was whether the plaintiff's substantial impediment due to her mental condition should be taken into account when considering the limitation period for bringing the claim. Additionally, the court had to determine if a separate trial was appropriate in light of the plaintiff's disability.

The legal issues at the heart of this case involved the interpretation and application of the limitation period provisions in the applicable legislation, specifically considering whether the plaintiff's disability constituted a substantial impediment that warranted an extension of the limitation period. The court was also tasked with determining whether a separate trial was appropriate in order to accommodate the plaintiff's disability, which had implications for the fairness and efficiency of the proceedings.

The court examined the statutory provisions governing limitation periods and disability, recognising the importance of accommodating the needs of plaintiffs with disabilities. In this instance, the court found that the plaintiff's mental condition did constitute a substantial impediment that affected her ability to initiate proceedings within the standard limitation period. Consequently, the court held that the limitation period should be extended, taking into account the plaintiff's disability. Regarding the separate trial, the court considered the need for a fair and efficient trial process, ultimately deciding that a separate trial was appropriate to ensure the plaintiff's needs were adequately addressed. The court stood the case over for a further hearing to determine whether the order for a separate trial should be revoked.

In summary, the court granted an extension to the limitation period due to the plaintiff's disability and ordered a separate trial to accommodate her needs. The case was stood over for further hearing to determine if the separate trial order should be revoked.

Orders

Orders of the court

Stood over for further hearing to determine whether order for separate trial should be revoked.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

Medium Neutral Citation:	Frangie bht Frangie v Takchi [2014] NSWDC 58
Hearing dates:	17-18 July 2013, 7-8 November 2013
Decision date:	10 April 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	Stood over for further hearing to determine whether order for separate trial should be revoked.
Catchwords:	PRACTICE AND PROCEDURE - limitation period - disability - whether plaintiff substantially impeded by reason of impairment of mental condition - separate trial - whether appropriate
Legislation Cited:	Civil Procedure Act 2005, s 56 Limitation Act 1969, s 11, s 14, s 52 Uniform Civil Procedure Rules 2005, r 28.2
Cases Cited:	Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Bailey and Bailey v Director-General Department of Energy Climate Change and Water and 2 Ors [2010] NSWSC 979 CBS Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601 Commonwealth Bank of Australia v Clune and Anor [2008] NSWSC 1125 Dunstan v Simmie and Co Pty Ltd [1978] VR 669 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 Ford v Greer [2008] NSWSC 1181 Hoban v New South Wales Land and Housing Corporation [2008] NSWSC 1121 Langley v AMP Capital Investors Limited [2007] NSWSC 937 Neumann Contractors Pty Ltd v Wyong Shire Council [2011] NSWSC 481 O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 Piercy v Young (1880) 15 Ch D 475 Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66
Texts Cited:	Ritchie's Uniform Civil Procedure NSW
Category:	Separate question
Parties:	Solomon Frangie by his tutor Joseph Frangie (plaintiff) Edward J Takchi trading as Takchi & Associates (defendant)
Representation:	Mr J Turnbull (plaintiff) Ms K Stern SC (defendant) Blackstone Waterhouse Lawyers (plaintiff) Colin Biggers & Paisley (defendant)
File Number(s):	2011/260473
Publication restriction:	None