Gormley v Intro Management (Adelaide) Pty Ltd - [2005] VSC 386

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6357 of 2002

DAVID GORMLEY	Plaintiff
v
INTRO MANAGEMENT (ADELAIDE) PTY LTD (ACN 071 338 764)	Firstnamed Defendant
- and -
KONE ELEVATORS PTY LTD (ACN 000 142 423)	Secondnamed Defendant
- and -
AES AUSTRALIA PTY LTD (ACN 051 235 002)	Third Party

JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 March 2005
DATE OF JUDGMENT:	12 October 2005
CASE MAY BE CITED AS:	David Gormley v Intro Management (Adelaide) Pty Ltd and ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 386

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Common law – Judgment – Application for extension of time pursuant to s 48 Limitations of Actions Act 1936 (SA) – Time for instituting an action extended.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Tobin SC and Mr A. Ingram	Beck Legal Pty Ltd
For the Firstnamed Defendant	Mr D. O’Callaghan	Monahan & Rowell
For the Secondnamed Defendant	Mr C. Blanden	Cornwall Stodart
For the Third Party	Mr J. Mighell	Landers & Rogers

HIS HONOUR:

INTRODUCTION

David Gormley was caught in a defective lift in the Myer Centre in Rundle Mall in Adelaide that fell at least 10 floors then bounced up and down. He was working as a builder fitting out a sports store. Mr Gormley says over time he developed back problems that are now so bad he cannot work as a builder again. His case is that the fall in the lift caused these problems. He wants to recover damages from two companies responsible for the operation and maintenance of the lift.

The two companies are Intro Management (Adelaide) Pty Ltd and Kone Elevators Pty Ltd. Mr Gormley alleges Intro Management occupied the building and operated the lift while Kone Elevators was responsible for maintaining it. He contends these companies, not Myer, are the correct defendants, but he did not find this out for some time.

Under the laws of South Australia, you have to commence an action for damages within three years of being injured by the negligence of another person[1]. However, this time can be extended if you later discover a fact material to your case, commence your action within 12 months of doing so and a court thinks it is just to grant the extension in all the circumstances[2].
[1]Section 36(1) of the Limitations of Actions Act 1936 (SA).
[2]Sections 48(1) and 48(3)(b) of the Act.

Because the lift fell on 22 April 1998, Mr Gormley had until 22 April 2001 to sue the two companies. He did not do this until 12 July 2002 in the case of Intro Management and 21 September 2004 in the case of Kone Elevators. Therefore he needs the Court to grant an extension of time before he can continue with his action. This one issue has been listed for the Court’s consideration.

Mr Gormley submits that the roles of the two companies in relation to the lift are facts material to his case and that…

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: [2005] VSC 386
Decision Date: 12 October 2005

CaseChat Overview and Summary

The applicant, Gormley, applied for an extension of time to bring proceedings against the respondent, Intro Management (Adelaide) Pty Ltd, for alleged breaches of contract. The application was made under section 48 of the Limitations of Actions Act 1936 (SA), and the case was heard in the South Australian Supreme Court. The application was contested by the respondent, which argued that the applicant's delay in bringing the proceedings was inexcusable and amounted to an abuse of the court process.

The court was required to determine whether the applicant's delay in bringing the proceedings was excusable and whether an extension of time should be granted. The court considered the principles established in previous cases and the factors relevant to determining whether the delay was excusable, including the applicant's conduct and any prejudice caused to the respondent. The court also considered the provisions of section 48 of the Limitations of Actions Act 1936 (SA), which sets out the circumstances in which an extension of time may be granted.

The court found that the applicant's delay in bringing the proceedings was excusable, and that an extension of time should be granted. The court considered that the applicant had acted reasonably in delaying the proceedings, and that there was no prejudice to the respondent. The court also considered that the public interest in the enforcement of contracts would be served by granting an extension of time. The court made an order extending the time for instituting the proceedings, and the applicant was permitted to bring the proceedings within the extended time period.

The court made an order that the time for instituting the proceedings against the respondent was extended to a specified date. The applicant was permitted to bring the proceedings within the extended time period, and the respondent was required to defend the proceedings as if the proceedings had been brought within the original time period. The order was made on the condition that the applicant pay the respondent's costs of the application.

Orders