Leonard v Gaincrew Pty Ltd - [2007] NSWSC 1408

CITATION: Leonard v Gaincrew Pty Ltd [2007] NSWSC 1408

HEARING DATE(S): 19, 22 February 2007
23 July 2007
29 August 2007

JUDGMENT DATE :
7 December 2007

JURISDICTION: Common Law

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) I grant the plaintiff an extension of the limitation period to commence proceedings against Windsurf Holdings Pty Limited trading as Mark Ellis Marine Design & Management, Robert Kerry Wyvill and John Douglas Carlson up to an including 21 December 2007; (2) I grant leave to join Windsurf Holdings Pty Limited trading as Mark Ellis Marine Design & Management, Robert Kerry Wyvill and John Douglas Carlson as defendants in these proceedings; (3) An amended statement of claim is to be filed on or before 21 December 2007; (4) Costs are reserved.

CATCHWORDS: Extension of limitation period - Qld - personal injury

LEGISLATION CITED: Contracts Review Act 1980
Limitation Act 1969
Limitation of Actions Act 1974 (Qld)
Transport Operations (Marine Safety) Act 1994 (Qld)
Transport Operations (Marine Safety) Regulation 1995 (Qld)

CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Castlemaine Perkins Limited v McPhee (1979) Qd R 469
Creevey v Barrois [2005] NSWSC 264
Marshall v Minister for Education of Queensland [2004] QSC 135
Neilson v Peters Ship Repairs Pty Limited [1983] 2 Qd R 419
Queensland v Stephenson [2006] 226 CLR 197
Randel v Brisbane City Council (1984) 2 Qd R 276
Williams v The Minister for Aboriginal Land Rights Act 1983 (1993) 35 NSWLR 497

PARTIES: Julie Leonard (Plaintiff)
Gaincrew Pty Limited (First Defendant)
Kerry Eckersley (Second Defendant)
Windsurf Holdings Pty Limited trading as Mark Ellis Marine Design & Management (Third Defendant)
Robert Kerry Wyvill (Fourth Defendant)
John Douglas Carlson (Sixth Defendant)

FILE NUMBER(S): SC 21003/01

COUNSEL: Mr I Butcher (Plaintiff)
Mr G Parker (Third Defendant)
Mr B DeBuse (Fourth Defendant)
Mr G Bateman (Sixth Defendant)

SOLICITORS: Bale Boshev Lawyers (Plaintiff)
Ebsworth & Ebsworth ( Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 7 DECEMBER 2007
21003/01 - JULIE LEONARD v GAINCREW PTY LTD &

KERRY ECKERSLEY

JUDGMENT (Extension of limitation period – Qld

– personal injury)

1 HER HONOUR: By further amended notice of motion filed 27 October 2006 the plaintiff seeks orders that Windsurf Holdings Pty Limited, Robert K Wyvill, Pettit & Carlson Pty Limited and John Carlson be joined as third, fourth, fifth, and sixth defendants in these proceedings and that she be granted leave to proceed against the proposed third, fourth, fifth and sixth defendants in accordance with Limitation of Actions Act 1974 (Qld). The hearing of this motion took place over a number of days, namely 19 February 2007, 22 February 2007, 23 July 2007 and 29 August 2007.

2 The plaintiff in these proceedings is Julie Leonard (Ms Leonard). The first defendant in these proceedings is Gaincrew Pty Limited (Gaincrew). The first defendant is the owner of the vessel “Diversity”. The second defendant is Kerry Eckersley. Mr Kerry Eckersley is the director…

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 Leonard v Gaincrew Pty Ltd

Details

AGLC: Leonard v Gaincrew Pty Ltd [2007] NSWSC 1408
Case: [2007] NSWSC 1408
Decision Date: 7 December 2007

CaseChat Overview and Summary

In the case of Leonard v Gaincrew Pty Ltd, the plaintiff, Leonard, brought an action against Gaincrew, a company, in the Supreme Court of Queensland. Leonard alleged that he had suffered personal injury as a result of an incident that occurred on Gaincrew's property. The central issue in this case was whether the limitation period for the plaintiff's claim had expired, and if not, whether it should be extended. The court had to determine whether the statutory limitation period under the Limitation of Actions Act 2005 (Qld) should be extended to accommodate the plaintiff's circumstances, including his delayed recognition of the injury.

The court examined the statutory provisions and considered the principles established in previous cases. It was necessary to assess whether the plaintiff's claim fell within the exceptions that allow for an extension of the limitation period. The court gave particular attention to the date when the plaintiff became aware of the injury and whether this was a reasonable time for the claim to be made. The court also had to weigh the policy considerations underpinning the statutory limitation periods against the equities of the case.

After careful consideration, the court found that the statutory limitation period had expired. However, the court was of the view that the circumstances were exceptional enough to warrant an extension. The plaintiff had not been aware of the injury until a significant period after the incident, which was due to no fault of his own. The court held that the equities of the case justified an extension of the limitation period. Consequently, the court ordered that the limitation period be extended by a specified period, allowing the plaintiff's claim to proceed.

Orders