Richard Crookes Constructions Pty Ltd v Kozul (Revised 6 9 05) - [2005] NSWCA 312

NEW SOUTH WALES COURT OF APPEAL

CITATION: Richard Crookes Constructions Pty Ltd v Kozul (revised 6.9.05) [2005] NSWCA 312

FILE NUMBER(S):
40233/05

HEARING DATE(S): 5 September 2005

JUDGMENT DATE: 05/09/2005

PARTIES:
Richard Crookes Constructions Pty Limited
Richard Crookes Constructions Group Pty Limited
Bosko Kozul

JUDGMENT OF: Tobias JA Young CJ in Eq Hunt AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2688/03

LOWER COURT JUDICIAL OFFICER: Twigg ADCJ

COUNSEL:
A: M Elkaim SC / J Ryan
R: B Slowgrove

SOLICITORS:
A: Colin Biggers & Paisley, Sydney
R: Albert A Macri Partners, Liverpool

CATCHWORDS:
LIMITATION OF ACTIONS - Extension of limitation period for claim for personal injury - Length and reasons for delay - Prejudice to defendant - Likelihood of a fair trial - Application for extension supported by affidavit of solicitor only - No affidavit from applicant - Whether evidence supporting application sufficient to give Court satisfactory understanding of why proceedings not commenced in time - Whether prejudice to defendant such that would not be just and reasonable to extend time - Limitation Act 1969 s 60C(2)

LEGISLATION CITED:
Evidence Act 1995
Limitation Act 1969
Motor Accidents Act 1988
Workers' Compensation Act 1987

DECISION:
Summons for leave to appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40233/05
TOBIAS JA
YOUNG CJ in EQ
HUNT AJA
Monday 5 September 2005 (revised 6.9.05)

RICHARD CROOKES CONSTRUCTIONS PTY LIMITED & ANOR v BOSKO KOZUL

Judgment

TOBIAS JA: On 18 June 2003 the opponent commenced proceedings by way of a statement of claim against the claimants in the District Court seeking damages with respect to injuries sustained by him when working at a building site at Auburn on 18 June 2001. He also claims to have received an injury at the same site on 2 June 2001 which was not included in the statement of claim or in an amended statement of claim which was filed on 30 August 2004.
Ultimately on 28 September 2004 a notice of motion was issued on behalf of the opponent seeking an order that the limitation period under the Limitation Act 1969 (the Act) of three years, and which with respect to the accident of 2 June 2001 had expired on 2 June 2004, be extended pursuant to s 60C(2) of the Act. That subsection provides as follows:
"If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court after hearing such of the persons likely to be affected by the application as it sees fit may, if it decides it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period not exceeding five years as it determines."
Pursuant to s 60E(1) of the Act, a number of matters are required to be taken into consideration when the court is considering whether to exercise the power conferred on it…

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.

Keep reading for free

Create a free CaseChat account to read Richard Crookes Constructions Pty Ltd v Kozul (Revised 6 9 0... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWCA 312
Decision Date: 5 September 2005

CaseChat Overview and Summary

The Supreme Court of New South Wales, Court of Appeal, considered an application for leave to appeal a decision concerning an extension of a limitation period. The applicant, Richard Crookes Constructions Pty Ltd, sought to appeal an earlier decision that had granted an extension of time to the respondent, Mr. Kozul, to commence proceedings for personal injury. The core of the dispute revolved around whether the initial grant of an extension was appropriate given the delay in commencing proceedings and the potential prejudice to the applicant.

The Court was required to determine whether the primary judge erred in granting an extension of time under section 60C(2) of the *Limitation Act 1969* (NSW). Specifically, the Court had to assess whether the evidence before the primary judge was sufficient to satisfy the requirements of the Act, particularly regarding the reasons for the delay in commencing proceedings and the prejudice, if any, to the defendant. The central question was whether it was just and reasonable to extend the time for commencing the action, considering the length of the delay and the potential impact on the applicant's ability to conduct a fair trial.

The Court of Appeal found that the primary judge had not erred in principle in granting the extension. The Court noted that the application for an extension was supported by an affidavit from the respondent's solicitor, which detailed the reasons for the delay and addressed the issue of prejudice. While there was no affidavit from the respondent himself, the Court was satisfied that the solicitor's affidavit provided sufficient information for the primary judge to form a satisfactory understanding of the circumstances. The Court also considered the prejudice to the defendant and concluded that it was not so significant as to render it unjust or unreasonable to grant the extension.

Consequently, the summons for leave to appeal was dismissed, and Richard Crookes Constructions Pty Ltd was ordered to pay the costs of the application.

Orders

Orders of the court

Summons for leave to appeal dismissed with costs

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

YOUNG CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

Full text does not contain this section.