Karambelas v Zaknic (No. 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Karambelas v Zaknic (No 2) [2014] NSWCA 433

Hearing dates:

1 December 2014

Decision date:

15 December 2014

Before:

Basten JA at [1];
Meagher JA at [2];
Simpson J at [39]

Decision:

1. Appeal allowed.

2. Set aside the orders made by the District Court on 6 December 2013.

3. Respondents' notice of motion filed in the District Court on 17 September 2013 dismissed.

4. Respondents pay the appellant's costs of that notice of motion.

5. Respondents pay the appellant's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - motor vehicle accident - notice of claim - claim not made within six months of accident - primary judge erred in addressing period of delay after the claim was made - whether appellant had "full and satisfactory explanation" for delay - Motor Accidents Compensation Act 1999 (NSW), s 73

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 48, 50, 51, 66(2), 72, 73, 74(1), 94, 95, 96, Pt 3.2, Pt 4.4

Cases Cited:

Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214
Mancini v Thompson [2002] NSWCA 38

Category:

Principal judgment

Parties:

Fofie Karambelas (Appellant)
Jessica Zaknic (First Respondent)
Sladjan Lakic (Second Respondent)

Representation:

Counsel:
R Sheldon SC with B Tzatzagos (Appellant)
K P Rewell SC with M A Cleary (Respondents)
Solicitors
Brydens Law Office (Appellant)
Moray & Agnew Lawyers (Respondents)

File Number(s):

2014/4958

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2013-12-09 00:00:00

Before:

Sorby DCJ

File Number(s):

DC 2013/231274

Judgment

1. BASTEN JA: I agree with Meagher JA.

1. MEAGHER JA: This is an appeal by leave from a decision of the primary judge (Sorby DCJ) dismissing proceedings brought by the appellant against the respondents for damages in respect of injuries sustained in a motor accident. Those proceedings were dismissed under s 73(7) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) because the primary judge was not satisfied that the appellant had a "full and satisfactory explanation" for her delay in not making her claim (by giving notice in the required form to the respondents' third-party insurer) within six months of the motor accident: s 72(1), (2). Leave to appeal was granted on 5 June 2014: Karambelas v Zaknic [2014] NSWCA 187.

The making of the late claim and commencement of proceedings

1. The motor accident occurred on 27 March 2009. The respondents' vehicle ran into the rear of the appellant's vehicle causing it to collide with the stationary vehicle in front of it. The appellant's two year old son was also in her vehicle and…