Komuda v Parmaxidis

[2019] NSWDC 470

District Court

New South Wales

Medium Neutral Citation:

Komuda v Parmaxidis [2019] NSWDC 470

Hearing dates:

5 September 2019

Date of orders:

06 September 2019

Decision date:

06 September 2019

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1) Dismiss the defendant’s Notice of Motion filed on 11 June 2019.
(2) Order that costs of the Motion be costs in the cause.

Catchwords:

PROCEDURE – Motor Accidents Compensation Act 1999 (NSW) s 86(4) – whether insurer made request for medical examinations – evidence established that the insurer’s letter never received by plaintiff or his lawyers

 

PROCEDURE – Motor Accidents Compensation Act 1999 (NSW) s 110 – whether insurer gave notice – whether plaintiff was in receipt of notice – evidence established that the insurer’s notice never received by plaintiff or his lawyers

  COSTS – costs in the cause

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Kalazich v Yang [2012] NSWDC 261

Category:

Procedural and other rulings

Parties:

Bartlomiej Komuda (Plaintiff)
Luke Parmaxidis (Defendant)

Representation:

Counsel:
N Ghabar (Plaintiff)
D Hanna (Defendant)

  Solicitors:
Drexler Litigation Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2019/117336

Judgment

Introduction

1. By a Statement of Claim filed on 15 April 2019 the plaintiff sought damages from the defendant arising out of a motor vehicle accident which occurred on 6 February 2016. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 (NSW) (the Act). A Statement of Particulars was filed on the same date.

2. The defendant filed a Defence on 11 June 2019 raising issues under ss 86(4), 109 and 110 of the Act.

3. By a Notice of Motion filed on 11 June 2019 the defendant sought the following orders:

1. That these proceedings be dismissed because of the plaintiff’s failure to comply with the notice dated 9 November 2017 issued by the defendant’s insurer pursuant to s 110 of the Motor Accidents Compensation Act 1999 as a result of which his claim is taken to have been withdrawn.

2. Further and in the alternative, that these proceedings be dismissed pursuant to s 86(4) of the MACA on account of the plaintiff’s failure, without reasonable excuse, to attend medical assessments arranged by the defendant’s insurer with Dr Allan, psychiatrist, on 1 May 2018 and with Dr Barrett, orthopaedic surgeon, on 29 May 2018.

3. Further and in the alternative, that these proceedings be dismissed pursuant to s 109 of the MACA because they were commenced more than three years after the subject accident occurred and the plaintiff was not entitled to do so without the court’s leave (this claim was abandoned at the hearing of the Motion).

4. That the plaintiff pay the defendant’s costs of this Notice of Motion and of these proceedings.

Relevant Provisions in the Act

4. Section 86 of the Act provides as follows:

“86 Medical and other examination of claimant

(1) A claimant must comply with any request by the person against whom the claim is made or the person’s insurer:

(a) to undergo a medical examination by one…