Richard Crookes Constructions Pty Ltd v Kozul (Revised 6 9 05)

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.