Masri v Stojanovski - [2022] NSWDC 509

District Court

New South Wales

Medium Neutral Citation: Masri v Stojanovski [2022] NSWDC 509
Hearing dates: 21 October 2022
Date of orders: 27 October 2022
Decision date: 27 October 2022
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   I find that the plaintiff has satisfied the court that he has a full and satisfactory explanation for the delay in making the claim.
(2)   I find that the plaintiff has satisfied the court that he has a full and satisfactory explanation for the delay in commencing court proceedings.
(3)   Grant leave to the plaintiff nunc pro tunc to commence proceedings by the Statement of Claim filed on 16 April 2022.
(4)   Order the plaintiff to pay the defendant’s costs of the plaintiff’s Notice of Motion filed on 14 April 2022 and the defendant’s Notice of Motion filed on 31 May 2022.
(5)   Otherwise dismiss the defendant’s Notice of Motion filed on 31 May 2022.

Catchwords:
MOTOR ACCIDENT LEGISLATION – late claims – whether claimant has a full and satisfactory explanation for delay in making claim and for delay in commencing proceedings – whether a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay
CIVIL PROCEDURE – commencement of proceedings – application for leave to commence action
CIVIL PROCEDURE – application for dismissal of proceedings – where statement of claim commenced without leave – where claim form served outside requisite period
COSTS – party/party – general rule that costs follow the event – exceptions to general rule that costs follow the event – party seeking indulgence or dispensation of the court

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 73, 91,109

Cases Cited:
Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Walker v Howard [2009] NSWCA 408

Category: Procedural rulings
Parties: Mohammed Masri (Plaintiff)
Phillip Stojanovski (Defendant)
Representation:
Counsel:
E Romanuik SC with M Eirth (Plaintiff)
C Allan (Defendant)
Solicitors:
Emirali & Co (Plaintiff)
Holman Webb (Defendant)

File Number(s): 2022/108858

Judgment

Introduction

The plaintiff Mr Mohammed Masri was the driver of a motor vehicle involved in an accident on 4 August 2017. He was stopped at the traffic lights when another vehicle ran into the back of him.
By s 72 of the Motor Accidents Compensation Act 1999 (NSW) (the Act) Mr Masri had to lodge a claim with the CTP insurer within six months of the date of the accident. He was late in lodging the claim. By s 109 of the Act Mr Masri had to commence court proceedings in respect of his claim within three years of the accident. He was late in commencing proceedings.
On 16 April 2022 Mr Masri filed a Statement of Claim, a Notice of Motion and an affidavit in support. By his Notice of Motion Mr Masri seeks leave to commence proceedings out of time and seeks to satisfy the court that he has provided a full and satisfactory explanation for the delay in…

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 Masri v Stojanovski

Details

AGLC: Masri v Stojanovski [2022] NSWDC 509
Case: [2022] NSWDC 509
Decision Date: 27 October 2022

CaseChat Overview and Summary

Masri v Stojanovski was a case concerning the Motor Accident Legislation in Australia, specifically focusing on whether the plaintiff had provided a full and satisfactory explanation for the delay in making a claim and in commencing proceedings. The matter was heard in the relevant court, which was required to determine these issues. The court also had to decide whether a reasonable person in the plaintiff's position would have failed to comply with the duty or would have been justified in experiencing the same delay.

The primary legal issues the court needed to resolve were whether the plaintiff had provided a sufficient explanation for the delays and whether those delays were justified. The court examined the circumstances surrounding the plaintiff's delay in making the claim and in initiating the court proceedings. It considered the reasons provided by the plaintiff and whether those reasons were reasonable and satisfactory.

In reaching its decision, the court found that the plaintiff had indeed provided a full and satisfactory explanation for both the delay in making the claim and the delay in commencing court proceedings. The court was satisfied that the delays were justified under the circumstances presented. Consequently, the court granted the plaintiff leave to commence proceedings by the statement of claim filed on 16 April 2022, effectively allowing the proceedings to be treated as if they had been commenced on that date. The court also ordered the plaintiff to pay the defendant's costs associated with specific notices of motion filed by the defendant. Finally, the court dismissed the defendant's notice of motion filed on 31 May 2022, except in relation to the costs ordered.

Orders

Orders of the court

(1) I find that the plaintiff has satisfied the court that he has a full and satisfactory explanation for the delay in making the claim.

(2) I find that the plaintiff has satisfied the court that he has a full and satisfactory explanation for the delay in commencing court proceedings.

(3) Grant leave to the plaintiff nunc pro tunc to commence proceedings by the Statement of Claim filed on 16 April 2022.

(4) Order the plaintiff to pay the defendant’s costs of the plaintiff’s Notice of Motion filed on 14 April 2022 and the defendant’s Notice of Motion filed on 31 May 2022.

(5) Otherwise dismiss the defendant’s Notice of Motion filed on 31 May 2022.

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:	Masri v Stojanovski [2022] NSWDC 509
Hearing dates:	21 October 2022
Date of orders:	27 October 2022
Decision date:	27 October 2022
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) I find that the plaintiff has satisfied the court that he has a full and satisfactory explanation for the delay in making the claim. (2) I find that the plaintiff has satisfied the court that he has a full and satisfactory explanation for the delay in commencing court proceedings. (3) Grant leave to the plaintiff nunc pro tunc to commence proceedings by the Statement of Claim filed on 16 April 2022. (4) Order the plaintiff to pay the defendant’s costs of the plaintiff’s Notice of Motion filed on 14 April 2022 and the defendant’s Notice of Motion filed on 31 May 2022. (5) Otherwise dismiss the defendant’s Notice of Motion filed on 31 May 2022.
Catchwords:	MOTOR ACCIDENT LEGISLATION – late claims – whether claimant has a full and satisfactory explanation for delay in making claim and for delay in commencing proceedings – whether a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay CIVIL PROCEDURE – commencement of proceedings – application for leave to commence action CIVIL PROCEDURE – application for dismissal of proceedings – where statement of claim commenced without leave – where claim form served outside requisite period COSTS – party/party – general rule that costs follow the event – exceptions to general rule that costs follow the event – party seeking indulgence or dispensation of the court
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 72, 73, 91,109
Cases Cited:	Karambelas v Zaknic (No. 2) [2014] NSWCA 433 Walker v Howard [2009] NSWCA 408
Category:	Procedural rulings
Parties:	Mohammed Masri (Plaintiff) Phillip Stojanovski (Defendant)
Representation:	Counsel: E Romanuik SC with M Eirth (Plaintiff) C Allan (Defendant) Solicitors: Emirali & Co (Plaintiff) Holman Webb (Defendant)
File Number(s):	2022/108858