District Court
New South Wales
Medium Neutral Citation: Souraya Homsi v Ibrahim Nabulsi [2017] NSWDC 16 Hearing dates: 8 February 2017 Decision date: 16 February 2017 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Summons dismissed with costs
Catchwords: Plaintiff’s application to extend time to commence proceedings. Legislation Cited: Motor Accident Compensation Act 1999 Cases Cited: Boral Bricks Pty Limited v Cosmidis [2013] NSWCA 443
Dijakovic v Perez [2015] NSWCA 174
McConachie v Pack [2004] NSWCA 148
Miller v Galderisi [2009] NSWCA 353
Smith v Grant [2006] NSWCA 244
The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347
Walker v Howard [2009] NSWCA 408Category: Procedural and other rulings Parties: Souraya Homsi (Plaintiff/Applicant)
Ibrahim Nabulsi (Defendant/Respondent)Representation: Counsel:
Solicitors:
T Meakes (Plaintiff/Applicant)
C Allan (Defendant/Respondent)
Premier Compensation Lawyers
McInnes Wilson Lawyers NSW
File Number(s): 16/201584 Publication restriction: Nil
Judgment
Introduction
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By Summons filed on 1 July 2016, the plaintiff seeks leave to commence proceedings pursuant to s 109(1) of the Motor Accident Compensation Act 1999 (“MACA”). The plaintiff relies on affidavits sworn by her former solicitor, Mr Mark Meoni, on 12 September 2016 and herself, sworn on 8 September 2016. The plaintiff was cross-examined on her affidavit.
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The defendant relied on four affidavits of Mr David McLachlan, affirmed on 27 September 2016, 17 November 2016, 22 November 2016, and February 2017.
Background to the application
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The plaintiff was born on 22 January 1990 and alleges that she suffered injuries in a motor vehicle accident on 31 August 2012. Following that accident, the plaintiff instructed a solicitor, Mr M Bradstreet, to bring a claim for damages for injuries she received in that accident. After approximately 12 months, the plaintiff instructed another solicitor, Mr J Di Michiel, to act on her behalf.
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On 28 May 2015 the plaintiff was involved in a subsequent motor vehicle accident in which she also suffered injuries. The following day, on 29 May 2015, she signed a claim form in respect of the motor vehicle accident on 31 August 2012, and that claim form was served on 9 June 2015 (in breach of ss 70 and 72 of MACA), together with a police report.
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The three year time limitation on bringing proceedings pursuant to MACA expired on 31 August 2015.
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On 9 September 2015 the CTP insurer, QBE Insurance (“QBE”), issued a s 81 notice denying the plaintiff’s claim.
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On 11 November 2015 the plaintiff provided a Late Explanation Notice outlining the reasons for the delay in serving her claim form. The defendant’s solicitors rejected that explanation on 28 January 2016, however, the defendant had lost the right to reject the plaintiff’s claim pursuant to s 73(4)(b) of MACA, and on 23 February 2016, the defendant accepted the plaintiff’s late claim explanation.
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On 1 April 2016 the defendant issued a s 81 notice denying liability for the plaintiff’s injuries. Thereafter, on 29 April 2016, the plaintiff applied for CARS exemption, and on 31 May 2016 an Exemption Certificate was issued to…
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- Homsi v Nabulsi [2017] NSWDC 16
- Case
- [2017] NSWDC 16
- Decision Date
CaseChat Overview and Summary
Justice Mortimer considered the circumstances and the application of the law regarding extensions of time to commence proceedings. The court examined the plaintiff's reasons for the delay and whether there were any mitigating factors. The plaintiff's application was ultimately dismissed, as the court found that the plaintiff had not demonstrated sufficient grounds for the extension. The court ordered that the summons be dismissed with costs, reflecting its decision that the application was not warranted under the circumstances.
Orders
Orders of the court
Summons dismissed with costs
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
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