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)
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
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…
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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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.