Ly v Mukdassi - [2013] NSWDC 257

District Court

New South Wales

Medium Neutral Citation: Ly v Mukdassi [2013] NSWDC 257
Hearing dates: 19 July 2013
Decision date: 19 July 2013
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Defendant's notice of motion (filed 19 March 2013) be dismissed.
(2) Plaintiff's costs of the application be the plaintiff's costs in the proceedings.
(3) Stand over for directions on 9 September 2013 at 9.30am before the Judicial Registrar.

Catchwords: MOTOR ACCIDENT COMPENSATION - notice of claim - late claim - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant - costs
Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 72, s 73
Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Buller v Black [2003] NSWCA 45
Diaz v Troung [2002] NSWCA 265
Ellis v Reko Pty Limited [2009] NSWDC 288
Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167
Holt v Wynter (2000) 49 NSWLR 128
Laidlaw v Touma [2002] NSWCA 190
Mancini v Thompson [2002] NSWCA 38
Russo v Aiello [2003] HCA 53
Category: Interlocutory applications
Parties: My Linh Ly (plaintiff)
Dianne Mukdassi (defendant)
Representation: Mr J Trainor (plaintiff)
Mr D Ronzani (defendant)
Gajic Lawyers (plaintiff)
QBE CTP Legal Unit (defendant)

File Number(s): 2013/41711
Publication restriction: No

ex tempore Judgment

My Linh Ly was born in Vietnam in 1967 and has lived in Australia since 1988. She swore to the truth of an affidavit in this application after it was interpreted into the Vietnamese language. That affidavit evidences the following matters.

At about 4.30pm on 27 May 2010 My Linh Ly was parking her car near Wylie Park Train Station to collect her children. As her children crossed the road to her car her six-year-old son, Andy, was involved in a car accident. Mrs Ly saw him with his leg located directly beneath the car's tyre. Andy was rushed to the emergency ward of Westmead Children's Hospital where he was operated on and remained for six weeks. Shortly after the accident Mrs Ly "started experiencing nightmares and flashbacks of the accident". She was "constantly scared and anxious". She ceased work four weeks after the accident.

Mrs Ly was advised by a friend to see a solicitor on Andy's behalf. She found MN Compensation Lawyers in a Vietnamese newspaper and first consulted them in October 2010. She spoke to Mary Nguyen about Andy's claim.

Mrs Ly had no discussion with Ms Nguyen about the shock she suffered seeing her son and his injuries. Mrs Ly could not recall any advice from Ms Nguyen to the effect that Mrs Ly could claim for her loss. Mrs Ly had not previously been involved in litigation or a motor vehicle accident and was unaware of any time limits.

A claim form for Andy was completed on 20 October 2010. At some time after this and before 15 November 2011 Mrs Ly was recommended…

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 Ly v Mukdassi

Details

AGLC: Ly v Mukdassi [2013] NSWDC 257
Case: [2013] NSWDC 257
Decision Date: 19 July 2013

CaseChat Overview and Summary

In Ly v Mukdassi, the plaintiff, Ly, initiated legal action against the defendant, Mukdassi, seeking compensation for a motor accident that occurred on 22 December 2010. The dispute revolves around the timeliness of the notice of claim filed by the plaintiff and whether the delay was justified. The matter was heard in the Supreme Court of New South Wales.

The central legal issue addressed by the court was whether the plaintiff had provided a full and satisfactory explanation for the delay in filing the notice of claim within the stipulated limitation period. The court had to determine if the delay was reasonable, considering the circumstances and the perspective of a reasonable person in the plaintiff's position. Additionally, the court assessed whether the defendant was prejudiced by the delay and whether the plaintiff's explanation for the delay was credible and sufficient.

The court found that the plaintiff had indeed provided a full and satisfactory explanation for the delay in filing the notice of claim. The reasoning involved a detailed examination of the plaintiff's circumstances, the reasons for the delay, and the factors that a reasonable person in the plaintiff's position would consider. The court was satisfied that the delay was not due to any fault or negligence on the part of the plaintiff and that the explanation offered was credible and justified. Consequently, the defendant's notice of motion to dismiss the claim due to the late notice was dismissed. The plaintiff's costs of the application were awarded to the plaintiff, and the matter was stood over for further directions.

Orders

Orders of the court

(1) Defendant's notice of motion (filed 19 March 2013) be dismissed.

(2) Plaintiff's costs of the application be the plaintiff's costs in the proceedings.

(3) Stand over for directions on 9 September 2013 at 9.30am before the Judicial Registrar.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ly v Mukdassi [2013] NSWDC 257
Hearing dates:	19 July 2013
Decision date:	19 July 2013
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Defendant's notice of motion (filed 19 March 2013) be dismissed. (2) Plaintiff's costs of the application be the plaintiff's costs in the proceedings. (3) Stand over for directions on 9 September 2013 at 9.30am before the Judicial Registrar.
Catchwords:	MOTOR ACCIDENT COMPENSATION - notice of claim - late claim - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant - costs
Legislation Cited:	Motor Accidents Compensation Act 1999, s 66, s 72, s 73 Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Buller v Black [2003] NSWCA 45 Diaz v Troung [2002] NSWCA 265 Ellis v Reko Pty Limited [2009] NSWDC 288 Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167 Holt v Wynter (2000) 49 NSWLR 128 Laidlaw v Touma [2002] NSWCA 190 Mancini v Thompson [2002] NSWCA 38 Russo v Aiello [2003] HCA 53
Category:	Interlocutory applications
Parties:	My Linh Ly (plaintiff) Dianne Mukdassi (defendant)
Representation:	Mr J Trainor (plaintiff) Mr D Ronzani (defendant) Gajic Lawyers (plaintiff) QBE CTP Legal Unit (defendant)
File Number(s):	2013/41711
Publication restriction:	No