Seiler v Nan - [2000] QCA 362

SUPREME COURT OF QUEENSLAND

CITATION: Seiler v Nan [2000] QCA 362

PARTIES: BARRY SEILER
(plaintiff/respondent)
v
HANS NAN and ALISON NAN trading as H & A NAN MACHINERY
(defendants/appellants)

FILE NO/S: Appeal No 287 of 2000
SC No 11149 of 1998

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 8 September 2000

DELIVERED AT: Brisbane

HEARING DATE: 29 August 2000

JUDGES: McPherson and Thomas JJA, Moynihan SJA
Joint reasons for judgment of Thomas JA and Moynihan SJA; separate reasons of McPherson JA, concurring as to the orders made

ORDER:
1. Appeal dismissed;

2. Defendant to pay the plaintiff’s costs of the appeal to be assessed on the standard basis.

CATCHWORDS:
ESTOPPEL – ESTOPPEL IN PAIS – THE REPRESENTATION – BY CONDUCT – WAIVER – representations made by parties – whether representations extended the limitation period – whether respondent/plaintiff could rely on representations made by applicant/defendants’ solicitors – effect on s 11 of the Limitation of Actions Act 1974

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – ACTIONS FOUNDED ON SIMPLE CONTRACT OR TORT – respondent/plaintiff injured at applicants/defendants’ premises – discussions between each party’s solicitors regarding instituting proceedings and commencing action within time

Limitation of Actions Act 1974 (Qld), s 11

COUNSEL: AM Daubney for the appellants
GR Mullins for the respondent

SOLICITORS: Blake Dawson Waldron for the appellants
McNamara & Associates (Gatton) for the respondent

MCPHERSON JA: I agree that this appeal should be dismissed for the reasons given by Thomas JA and Moynihan SJA.

THOMAS JA and MOYNIHAN SJA: The plaintiff sued the defendants for personal injuries. The defendants pleaded that the plaintiff’s action was barred by the operation of s 11 of the Limitation of Actions Act 1974. The plaintiff’s reply set up that the defendants were estopped from relying on that plea.

This is an appeal from a determination of the limitations point as a separate issue which involved striking out the relevant paragraph of the defence and the dismissing of the plaintiff’s application for judgment on the basis that the point afforded a defence to the action.

The plea arose in the following circumstances. On 27 March 1995, the plaintiff was inspecting a forklift on the defendants’ premises with a view to purchasing it. The second defendant started the machine up and commenced to drive it forward. The forklift swung out and struck the plaintiff and the machine ran over his foot.

The plaintiff retained solicitors to pursue his claim for damages as did the defendants’ insurer. The solicitors embarked on an exchange of correspondence with a view to reaching a consensual resolution. For reasons which it is unnecessary to explore, this became a somewhat protracted process.

The plaintiff’s solicitors wrote to the defendants’ on 11 February 1998. They noted that the exploration of the limitations period was “fast approaching” and “in view of the costs of instituting proceedings” invited the defendants to waive their rights to rely on the Limitation of Actions Act 1974…

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 Seiler v Nan

Details

AGLC: Seiler v Nan [2000] QCA 362
Case: [2000] QCA 362
Decision Date: 8 September 2000

CaseChat Overview and Summary

In the case of Seiler v Nan, the plaintiff, Nan, sued the defendants, Seiler, in the Supreme Court of New South Wales for injuries suffered at the defendants’ premises. The central issue in the case was whether the defendants’ solicitors' representations extended the limitation period for the plaintiff to commence legal proceedings. The plaintiff argued that the defendants' solicitors had made representations that extended the limitation period, and the court was required to determine if these representations constituted an estoppel that could prevent the defendants from relying on the Limitation of Actions Act 1974.

The court considered whether the representations made by the defendants’ solicitors constituted an estoppel in pais. It examined whether the conduct of the parties amounted to a representation that could extend the limitation period and if the plaintiff could rely on these representations. The court also assessed the effect of section 11 of the Limitation of Actions Act 1974 on the applicability of estoppel in this context. Ultimately, the court found that the representations did not amount to an estoppel sufficient to extend the limitation period, as there was no clear and unequivocal representation that would lead the plaintiff to reasonably believe that the defendants would not enforce their legal rights.

The appeal was dismissed, and the court ordered that the defendants pay the plaintiff’s costs of the appeal, to be assessed on the standard basis. The court concluded that the plaintiff could not rely on the defendants' solicitors' representations to extend the limitation period and that the statutory limitation period remained unaffected by the alleged representations.

Orders

Orders of the court

1. Appeal dismissed;

2. Defendant to pay the plaintiff’s costs of the appeal to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Seiler v Nan [2000] QCA 362
PARTIES:	BARRY SEILER (plaintiff/respondent) v HANS NAN and ALISON NAN trading as H & A NAN MACHINERY (defendants/appellants)
FILE NO/S:	Appeal No 287 of 2000 SC No 11149 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	29 August 2000
JUDGES:	McPherson and Thomas JJA, Moynihan SJA Joint reasons for judgment of Thomas JA and Moynihan SJA; separate reasons of McPherson JA, concurring as to the orders made
ORDER:	1. Appeal dismissed; 2. Defendant to pay the plaintiff’s costs of the appeal to be assessed on the standard basis.
CATCHWORDS:	ESTOPPEL – ESTOPPEL IN PAIS – THE REPRESENTATION – BY CONDUCT – WAIVER – representations made by parties – whether representations extended the limitation period – whether respondent/plaintiff could rely on representations made by applicant/defendants’ solicitors – effect on s 11 of the Limitation of Actions Act 1974 LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – ACTIONS FOUNDED ON SIMPLE CONTRACT OR TORT – respondent/plaintiff injured at applicants/defendants’ premises – discussions between each party’s solicitors regarding instituting proceedings and commencing action within time Limitation of Actions Act 1974 (Qld), s 11
COUNSEL:	AM Daubney for the appellants GR Mullins for the respondent
SOLICITORS:	Blake Dawson Waldron for the appellants McNamara & Associates (Gatton) for the respondent