Kinzett v McCourt

Case [1999] NSWCA 7


Reported Decision: 46 NSWLR 32

New South Wales


Court of Appeal

CITATION: KINZETT v McCOURT & ORS [1999] NSWCA 7
FILE NUMBER(S): CA 40773/96
HEARING DATE(S): 17 November; 1998
18 November; 1998
JUDGMENT DATE:
9 February 1999

PARTIES :


KARLO KINZETT
LAURENCE VINCENT McCOURT
ROBERT FRANCIS SLAVIN
RICHARD BRADSHAW
FIBESE PTY LTD (ACN 003 332 456)
OFFSHORE BOAT SALES PTY LTD (IN LIQUIDATION) (formerly known as Zixisha Pty Ltd)
ZURICH AUSTRALIA INSURANCE LTD
JUDGMENT OF: Spigelman CJ at 1; Mason P at 115; Priestley JA at 121; Meagher JA at 124; Handley JA at 128
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S) : CL 10785/91
LOWER COURT JUDICIAL OFFICER: Hulme J
COUNSEL: P Mahoney / K Poulos (Appellant)
Submitting (Respondent 1)
P Gray / A Pearman (Respondent 2)
T Clarke (Respondent 3)
SOLICITORS: Shaw McDonald (Appellant)
Coyne & Whittemore ( Respondent 1)
Uther Webster & Evans (Respondent 2)
GIO Australia (Respondents 3 & 4)
Vardenega Roberts (Respondents 5 & 6)
CATCHWORDS: LIMITATION OF ACTIONS; the period of limitation; extension of s60G and s60I Limitation Act 1969; awareness of connection between personal injury and defendant's act or omission; when proceedings might reasonably have been instituted; plaintiff unaware of the identity of the party; exercise of disrection, s60F Limitation Act 1969; not unreasonable or dilatory conduct on part of plaintiff; INSURANCE; liability insurance; statutory charge on insurance money; s6 Law Reform (Miscellaneous Provisions) Act 1946; construction of; "same rights and liabilities" as against insured; leave to join insurer; whether s14(1)(a) and s14(1)(b) of the Limitation Act 1969 apply; when does time commence to run in favour of insurer; when does time cease to run against insurer; whether leave to proceed condition precedent to commencement of action
ACTS CITED: Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Limitation Act 1969 (NSW)
DECISION: Appeal allowed
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40773/96


SPIGELMAN CJ
MASON P
PRIESTLEY JA
MEAGHER JA
HANDLEY JA

Tuesday 9 February 1999

KINZETT v McCOURT & ORS


On 3 March 1989, the Plaintiff suffered injuries as a result of a boat explosion. The Plaintiff instituted proceedings on 19 February 1991, alleging that the suppliers of the boat acted negligently, or alternatively, in breach of contract. The Plaintiff sought an order extending the limitation period, which expired on 3 March 1995, for the bringing of proceedings against the Fifth Defendant, the supplier of the boat. The Plaintiff also sought leave to join Zurich Australia Insurance Limited, asserted to be the insurer, as a defendant to the proceedings pursuant to s6(1) of the Law Reform (Miscellaneous Provisions) Act 1946. Leave was denied in both instances.

Held, allowing the appeal:
(Per curiam)
Extension of limitation period
1. The requirement in s60I(1)(a)(iii) that the plaintiff be “unaware of the connection between the personal injury and the defendant’s act or omission” encompasses a lack of awareness of the identity of the relevant defendants: Hyde v Agar NSWCA 19 October 1998, applied.

2. In the absence of any evidence suggesting…

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AGLC
Kinzett v McCourt [1999] NSWCA 7
Case
[1999] NSWCA 7
Decision Date

CaseChat Overview and Summary

The dispute in *Kinzett v McCourt* concerned the application of limitation periods to a claim involving personal injury and the joinder of an insurer. The plaintiff, Ms Kinzett, sought to bring proceedings against the defendant, Mr McCourt, for personal injuries allegedly sustained as a result of his negligence. The case came before the Court of Appeal of New South Wales, with Spigelman CJ, Mason P, Priestley, Meagher and Handley JJA presiding.

The central legal issues before the Court of Appeal were whether the plaintiff's claim was out of time under the *Limitation Act 1969* (NSW), and if so, whether an extension of time should be granted. Specifically, the court had to consider the provisions relating to the plaintiff's awareness of the connection between their injury and the defendant's conduct, and when proceedings might reasonably have been instituted. Further, the court examined the application of the statutory charge provisions under s 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW), which allows a plaintiff to join an insurer directly, and whether the limitation periods under the *Limitation Act 1969* applied to the insurer in the same way as they would to the insured. This involved determining when time commenced to run in favour of the insurer and when it ceased to run against them, and whether leave to proceed against the insurer was a condition precedent to the commencement of the action.

The Court of Appeal reasoned that the plaintiff's delay in instituting proceedings was not unreasonable or dilatory, particularly given the plaintiff's initial unawareness of the identity of the party responsible for their injuries. The court applied the principles governing the exercise of discretion under s 60F of the *Limitation Act 1969* to grant an extension of time. Regarding the insurer's liability, the court determined that the insurer, by virtue of s 6 of the *Law Reform (Miscellaneous Provisions) Act 1946*, stepped into the shoes of the insured and was subject to the same rights and liabilities. Consequently, the limitation periods that applied to the insured also applied to the insurer, and the insurer could not rely on separate limitation periods commencing from a later date.

The appeal was allowed.

Orders

Orders of the court

Appeal allowed

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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