Homsi v Nabulsi

[2017] NSWDC 16

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 408
Category:	Procedural and other rulings
Parties:	Souraya Homsi (Plaintiff/Applicant) Ibrahim Nabulsi (Defendant/Respondent)
Representation:	Counsel: T Meakes (Plaintiff/Applicant) C Allan (Defendant/Respondent)   Solicitors: Premier Compensation Lawyers McInnes Wilson Lawyers NSW
File Number(s):	16/201584
Publication restriction:	Nil

Judgment

Introduction

1. 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.

2. 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

3. 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.

4. 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.

5. The three year time limitation on bringing proceedings pursuant to MACA expired on 31 August 2015.

6. On 9 September 2015 the CTP insurer, QBE Insurance (“QBE”), issued a s 81 notice denying the plaintiff’s claim.

7. 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.

8. 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…