Gorczyski v W & FT Osmo Pty Ltd - [2022] NSWSC 1517

Supreme Court

New South Wales

Medium Neutral Citation: Gorczyski v W & FT Osmo Pty Ltd [2022] NSWSC 1517
Hearing dates: 30 August 2022
Date of orders: 9 November 2022
Decision date: 09 November 2022
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The Notice of Motion filed 3 June 2022 is dismissed.
(2) The plaintiff is to pay the defendant’s costs of the Notice of Motion.

Catchwords:
PROCEDURE – Parties – Joinder of Parties – Plaintiff filed notice of motion seeking to join concurrent wrongdoer in the proceedings – ss 34, 38 Civil Liability Act – Application to Amend Statement of Claim – ss 64, 65 Civil Procedure Act – Limitation Issues - Notice of Motion dismissed

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 34, 38
Civil Procedure Act 2005 (NSW) ss 64, 65
Limitation Act 1969 (NSW) s 14

Cases Cited:
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; 66 ALJR 76
Gorczynski v W&FT Osmo Pty Ltd [2010] NSWCA 163
Greenwood v Papademitri [2007] NSWCA 221

Category: Principal judgment
Parties: Peter Francis Gorczynski (Plaintiff / Applicant on the Motion)
W & FT Osmo Pty Limited (ACN 003 618 059) (First Defendant)
The Executors of the late William Osmo (Second Defendant)
Representation:
Counsel:
Plaintiff in person
J O’Sullivan (First and Second Respondents on the Motion)
Solicitors:
Darian Iacono, & Legal (First and Second Defendant / Respondents on the Motion)

File Number(s): 2008/289619
Publication restriction: Nil

Judgment

Mr Peter Francis Gorczynski (“the plaintiff”) brought a Notice of Motion filed 3 June 2022 (“the Motion”) seeking leave to join Mr William Osmo (“Mr Osmo”, now deceased) as a concurrent wrongdoer in proceedings commencing in the District Court by a Statement of Claim (later transferred to this Court), pursuant to ss 34 and 38(1) of the Civil Liability Act 2002 (NSW) (“the Act”), (“Order 1”). The plaintiff also sought to amend the Statement of Claim in terms attached to the Motion, pursuant to ss 64 and 65 of the Civil Procedure Act 2005 (NSW) (“CPA”) (“Order 2”).
Currently, the first defendant is W & FT Osmo Pty Ltd (“the first defendant” or “Osmo P/L”). Mr Osmo and his wife were the sole directors and shareholders of that company. Mr Osmo passed away in July 2017. The respondents on the Motion are Ms Michelle Hale (“Ms Hale”) and Ms Tammy Meyer (“Ms Meyer”) who are the executors of the estate of the late Mr Osmo’s will (“the respondents”).
The issue before the Court is whether the plaintiff’s application to join Mr Oslo personally to the proceedings should succeed.

Factual Background

The proceedings were commenced in the District Court by a Statement of Claim filed 5 May 2006 (“the Statement of Claim”) which alleged professional negligence arising from Certificates of Inspection and Reports that were provided by Osmo P/L, and claimed damages originally estimated at about $400,000 (“the negligence proceedings”).
Mr Osmo was a structural engineer claiming to hold a NPER-3 qualification. He had been…

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: [2022] NSWSC 1517
Decision Date: 09 November 2022

CaseChat Overview and Summary

The plaintiff, Gorczynski, sought to join a concurrent wrongdoer, W & FT Osmo Pty Ltd, in the proceedings against another party. The application was made under sections 34 and 38 of the Civil Liability Act and sections 64 and 65 of the Civil Procedure Act. The application was dismissed by the court due to limitation issues.

The primary legal issue before the court was whether the plaintiff could join W & FT Osmo Pty Ltd as a party in the proceedings. This involved an interpretation of the statutory provisions under the Civil Liability Act and Civil Procedure Act regarding the joinder of parties and the amendment of the statement of claim. The court also had to consider whether the application was within the limitation period provided by law.

The court found that the statutory provisions allowed for the joinder of parties under certain conditions, but these conditions were not met in this case. Specifically, the court determined that the application was made outside the limitation period, and therefore the joinder of W & FT Osmo Pty Ltd was not permissible. The court noted that the limitation period was a critical factor and, once expired, could not be extended or waived by the parties.

The notice of motion was dismissed, and the plaintiff was not permitted to join W & FT Osmo Pty Ltd in the proceedings. The court's decision was based on the strict interpretation of the statutory provisions and the limitation period, which were deemed to be absolute and non-extendable.

Orders