Lyu v Jeon

[2012] NSWCA 446

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lyu v Jeon [2012] NSWCA 446

Hearing dates:

24 August 2012

Decision date:

21 December 2012

Before:

Macfarlan JA at [1];
Meagher JA at [2];
Davies J at [41].

Decision:

(1) Grant the applicant leave to appeal.

(2) Appeal allowed.

(3) Set aside orders 1, 2 and 3 made by the District Court on 30 August 2011.

(4) Respondent to pay the applicant's costs of the application for leave to appeal and of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

MOTOR ACCIDENT COMPENSATION - leave to commence proceedings outside three year period - respondent delayed over two years in notifying motor accident claim - whether primary judge erred in finding that respondent had provided a "satisfactory explanation" for delay - respondent made a false claim under student health insurance and driver, a friend, agreed to pay balance of outstanding expenses - driver did not honour agreement and respondent notified a claim - reasonable person in respondent's position would not have acted as she did and delayed notifying claim - primary judge erred in concluding otherwise - Motor Accidents Compensation Act 1999, s 109(3)(a).

Legislation Cited:

Motor Accidents Compensation Act 1999
Motor Accident Act 1988

Cases Cited:

Buller v Black [2003] NSWCA 45; 56 NSWLR 425
Diaz v Truong [2002] NSWCA 265; 37 MVR 158
House v The King [1936] HCA 40; 55 CLR 499
Russo v Aiello [2003] HCA 53; 215 CLR 643
Smith v Grant [2006] NSWCA 244; 67 NSWLR 735
Walker v Howard [2009] NSWCA 408; 78 NSWLR 161
Young Lim Jeon v Sul (Jolie) Lyu [2011] NSWDC 145

Category:

Principal judgment

Parties:

Sul (Jolie) Lyu (First Appellant)
Australian Associated Motor Insurers Limited (Second Appellant)
Young Lim Jeon (Respondent)

Representation:

Counsel:
R R Bartlett SC
A J Black SC
Solicitors:
CKB Partners
Stacks Goudkamp, Newcastle

File Number(s):

2011/380767

 Decision under appeal 

Citation:

Young Lim Jeon v Sul (Jolie) Lyu
[2011] NSWDC 145

Date of Decision:

2011-08-30 00:00:00

Before:

Sidis DCJ

File Number(s):

2011/220079

Judgment

1. MACFARLAN JA: I agree with Meagher JA.

1. MEAGHER JA: If leave is granted, the issue in this appeal is whether Sidis DCJ erred in being satisfied that the respondent (Young Jeon) had provided a "satisfactory explanation" for her delay in commencing proceedings against the applicant/appellant (Jolie Lyu) for injuries sustained in a motor accident on 13 July 2007. In my view, the primary judge did err, leave to appeal should be granted and the appeal allowed.

Introduction

1. The respondent did not give notice of a motor accident…