Legal Research
Cases
Kone Elevators Pty Ltd v Popa

Kone Elevators Pty Ltd v Popa

Case [2006] VSCA 26 24 February 2006

Limitation Periods

Breach of Contract

Compensatory Damages

Civil Litigation & Procedure

Personal Injury Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3707 of 2005

KONE ELEVATORS PTY. LTD.
KONE ELEVATORS PTY. LTD.	Appellant
v.
ELENA POPA	1^st Respondent
And
RMIT UNIVERSITY	2^nd Respondent
And
JOHN HOLLAND PTY. LTD.	3^rd Respondent

---

JUDGES:	CALLAWAY, EAMES and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2006
DATE OF JUDGMENT:	24 February 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 26

---

Limitation of actions – Extension of time – Personal injury claim – Delayed service by plaintiff on appellant and another proposed defendant of originating motion under s.135A(5) of Accident Compensation Act 1985 seeking leave to bring proceeding – Contribution – Notice of contribution by appellant against other defendant based on breach of contract – Cause of action accrued upon breach of contract - Defence to contribution claim that action under contract statute barred – Prejudice to appellant by denial of claim for contribution – Prejudice caused by delay between accident and likely hearing date of plaintiff’s action – Whether discretion of judge miscarried in granting leave to commence proceedings against appellant – Appeal dismissed – Limitation of Actions Act 1958, ss.23A, 24(4)

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.J. Corrigan	Herbert Geer & Rundle
For the 1^st Respondent	Mr C.J. Blanden, S.C. with Mr C.J. Nettlefold	Ryan Carlisle Thomas
For the 2^nd Respondent	Mr J.H.L. Forrest, Q.C. with Mr P.H. Solomon	Wisewoulds
For the 3^rd Respondent	Mr B.M. Griffin, S.C.	Deacons

CALLAWAY, J.A.:

I agree with Eames, J.A., subject to the qualification that I do not think that counsel for Kone too readily conceded, on appeal, that John Holland’s limitation defence would be unanswerable.[1]

EAMES, J.A.:

[1]Compare [36] below.

This is an appeal, brought by leave, against a decision of a judge of the County Court granting an application for an extension of time for the commencement of proceedings pursuant to s.23A of the Limitation of Actions Act 1958. The appellant, Kone Elevators Pty Ltd (“Kone”), is the third of three defendants in the action, but the only party to appeal the decision of the judge.

The plaintiff, and now first respondent to the appeal, Elena Popa (who, for convenience, I will continue to call “the plaintiff”), was employed by RMIT University (“RMIT”) as an information technology teacher, when on 14 May 1996, whilst accompanied by the head of her department, she fell forward and landed heavily as she alighted from a lift. The lift had failed to stop when its floor was level with the level of the sixth floor of a new building (known as “Building 94”) recently built by John Holland Pty Ltd (“John Holland”) and occupied by RMIT. She reported the incident to her employer and attended the RMIT Health Service, where she saw a nurse. In June 1996 having seen a general practitioner the plaintiff was referred to a physiotherapist, suffering back and leg pain. The physiotherapist fitted her with a brace which she wore for 12 months.

In July 1996 a CT scan disclosed…

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.

Continue reading Kone Elevators Pty Ltd v Popa

Details

AGLC: Kone Elevators Pty Ltd v Popa [2006] VSCA 26
Case: [2006] VSCA 26
Decision Date: 24 February 2006

CaseChat Overview and Summary

In the matter of Kone Elevators Pty Ltd v Popa, the dispute centred on the accrual of a cause of action for contribution in a personal injury claim and the implications of delayed service of originating process under the Accident Compensation Act 1985. The parties involved were Kone Elevators Pty Ltd, the appellant, and Popa, the respondent, with the matter being heard in the Supreme Court of Victoria. The appellant sought to appeal a decision that allowed the respondent to bring a proceeding against it, arguing that the judge had misapplied the discretion afforded under the Limitation of Actions Act 1958.

The court was tasked with determining whether the respondent’s delay in serving the appellant with an originating motion under section 135A(5) of the Accident Compensation Act 1985 prejudiced the appellant’s ability to defend the claim for contribution. This involved interpreting the accrual of the cause of action for contribution as it related to a breach of contract and assessing whether the appellant's defence of limitation was valid. Additionally, the court had to consider the potential prejudice to the appellant if the contribution claim were to proceed, particularly in light of the delay between the accident and the likely hearing date of the respondent’s action.

The court held that the judge had not misapplied the discretion granted under the Limitation of Actions Act 1958. It found that the appellant's defence of limitation was not sufficient to preclude the respondent from bringing the claim. The court reasoned that the delay in serving the originating motion did not cause undue prejudice to the appellant, as it had already been served with a notice of contribution based on the breach of contract. Furthermore, the court concluded that the prejudice caused by the delay was not significant enough to warrant dismissal of the respondent’s claim. Consequently, the appeal was dismissed.

As a result of the court's decision, the final orders were that the appellant’s appeal was dismissed, and the respondent’s claim for contribution was allowed to proceed. This ruling upheld the lower court's decision and reinforced the principle that discretion in granting leave to commence proceedings should be exercised judiciously, balancing the interests of all parties involved.

Orders