Reznitsky v Rothonis - [2021] NSWSC 281

Supreme Court

New South Wales

Medium Neutral Citation: Reznitsky v Rothonis [2021] NSWSC 281
Hearing dates: 12 October 2020
Date of orders: 24 March 2021
Decision date: 24 March 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The plaintiff’s amended summons dated 5 February 2020 and the proceedings are dismissed.
(2) The plaintiff is to pay the defendants’ costs of the proceedings on an ordinary basis.

Catchwords:
LIMITATION OF ACTIONS – Application for extension of time under Limitation Act 1969 (NSW) s 60C – Factors considered under s 60E – Whether plaintiff is under a disability under s 52 – Where the plaintiff has provided no evidence to substantiate his claim – Application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 5O
Limitation Act 1969 (NSW) ss 11, 52, 60C, 60E
Uniform Civil Procedure Rules 2005 (NSW), rr 13.6, 36.16

Cases Cited:
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541
Guthrie v Spence [2009] NSWCA; (2009) 78 NSWLR 225
Kotulski v Attard [1981] 1 NSWLR 115
New South Wales v Harlum [2007] NSWCA 120
Olive v Johnstone [2006] NSWCA 21
Saunders v Jackson [2009] NSWCA 192
South Western Sydney Local Health District v Gould [2018] NSWCA 69
State of New South Wales v Bennie [2005] NSWCA 172
Sydney City Council vZegarac (1998) 43 NSWLR 195

Category: Principal judgment
Parties: Boris Reznitsky (Plaintiff
Theodore Rothonis (First Defendant)
Alexander Aristoff (Second Defendant)
Andrew Small (Third Defendant)
Harold Kwiatek (Fourth Defendant)
Representation:
Counsel:
T Hackett (Defendants)
Solicitors:
Self Represented (Plaintiff)
Avant Law (Defendants)

File Number(s): 2019/305248
Publication restriction: Nil

Judgment

HER HONOUR: This is an application to extend the limitation period in relation to a personal injury claim.
At the time of the hearing of these proceedings on 12 October 2020, there were numerous applications before the Court. The plaintiff had filed an amended summons dated 5 February 2020 seeking to extend the limitation period, as well as a notice of motion filed 1 June 2020 seeking summary judgment and a review of two Registrars’ decisions. The defendant had filed a notice of motion dated 26 August 2020 seeking that the amended summons be dismissed.
The plaintiff is Boris Reznitsky. The first defendant is Theodore Rothonis and the second defendant is Alexander Aristoff. The third defendant is Andrew Small and the fourth defendant is Harold Kwiatek. All four defendants are medical general practitioners (GPs) who practice at Waterloo Medical Centre. The plaintiff relied upon his affidavits dated 30 September 2019, 28 May 2020, 5 February 2020 and 22 November 2020. He also provided written submissions. The defendants have elected not to rely upon affidavit evidence.
On 2 December 2020, after the hearing of these proceedings, various notices of motion, including the plaintiff’s notice of motion filed 1 June 2020 seeking summary judgment and a review of two Registrars’ decisions, were listed before the Registrar at 10.00 am. The plaintiff appeared by audio-visual link at 10.36 am. By that time, the…

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 Reznitsky v Rothonis

Details

AGLC: Reznitsky v Rothonis [2021] NSWSC 281
Case: [2021] NSWSC 281
Decision Date: 24 March 2021

CaseChat Overview and Summary

The matter of Reznitsky v Rothonis involved an application by the plaintiff for an extension of time to bring an action against the defendant. The dispute arose under the Limitation Act 1969 (NSW) s 60C, where the plaintiff sought relief from the statutory bar on the basis of disability and other relevant factors under s 60E. The plaintiff contended that he was under a disability, as defined by s 52 of the Act, due to alleged misrepresentation by the defendant. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's disability, as claimed, warranted an extension of time under the Limitation Act 1969 (NSW) s 60C. The court needed to consider the evidence provided by the plaintiff to substantiate his claim of disability and assess whether the factors outlined in s 60E justified an extension of time. The court also had to determine if the plaintiff's allegations were supported by sufficient evidence to warrant relief from the statutory bar.

In dismissing the plaintiff's application, the court found that the plaintiff had failed to provide any evidence to substantiate his claim of disability or the other factors under s 60E. The court held that without such evidence, the plaintiff could not rely on the provisions of the Limitation Act 1969 (NSW) to extend the time limit for bringing the action. The plaintiff's assertions were considered insufficient to warrant relief from the statutory bar, leading to the dismissal of the application.

As a result, the court made no order granting an extension of time to the plaintiff to bring the action against the defendant. The application was dismissed in its entirety, and the plaintiff was held to the statutory limitation periods outlined in the Act.

Orders