Steve Marinos v Jane Mimigeannis

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Steve Marinos v Jane Mimigeannis [2016] NSWCA 241

Hearing dates:

29 August 2016

Decision date:

02 September 2016

Before:

Sackville AJA

Decision:

1. Dismiss the appellant’s notice of motion filed on 14 July 2016.
2. The appellant pay the respondent’s costs of the motion.

Catchwords:

PRACTICE AND PROCEDURE – application to stay orders of the District Court – no basis for a stay.

Legislation Cited:

Limitation Act 1969 NSW, s 50C(1), s 50D
Uniform Procedure Rules 2005 (NSW) r 51.44(1)

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Mimigeannis v Marinos (unrep, 16 May 2016, District Court)
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231
State of New South Wales v Gillett [2012] NSWCA 83
Trad v Harbour Radio Pty Ltd [2010] NSWCA 41

Category:

Principal judgment

Parties:

Steve Marinos (Appellant)
Jane Mimigeannis (Respondent)

Representation:

Counsel:

 

Appellant: Mr T McKenzie
Respondent: Mr D Stanton

 

Solicitors:

  Appellant: Photios Vouroudis & Co
Respondent: Sanford Legal

File Number(s):

2016/166943-1

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Date of Decision:

16 May 2016

Before:

Bozic SC DCJ

File Number(s):

2014/94516

Judgment

1. SACKVILLE AJA: By a notice of motion filed on 14 July 2016 the appellant seeks a stay of orders made by Bozic DCJ on 16 May 2016 pending determination of an appeal from his Honour’s decision. The application is made pursuant to Uniform Procedure Rules 2005 (NSW) r 51.44(1).

2. The respondent sued the appellant for injuries sustained in an assault committed by the appellant on 1 May 2010. At that time the respondent was living with the appellant in his apartment. There was no dispute at the trial that the respondent sustained significant injuries as a consequence of the assault. The primary Judge (as I shall describe his Honour) entered judgment for the respondent against the appellant in the sum of $338,122. [1]

   1. Mimigeannis v Marinos (unrep, 16 May 2016, District Court) (Primary Judgment).

3. The respondent did not commence proceedings against the appellant until 28 March 2015, more than four years and ten months after the assault. However, the primary Judge rejected the appellant’s defence founded on s 50C(1) of the Limitation Act 1969 (NSW) (Limitation Act), the effect of which is that a plaintiff must commence an action in assault within three years from “the date on which the cause of action is discoverable by the plaintiff”.

4. His Honour concluded that the cause of action was not discoverable by the respondent until 24 October 2014. His Honour reached this conclusion on the basis of the following findings:[2]

   2. Primary Judgment at [51].

“(i)   As at 1 May 2010 the plaintiff knew that she had been assaulted;

(ii)   She knew that the assailant was the defendant; and

(iii)   That she had suffered injury.

(iv)   Within weeks of the assault she knew that she would incur treatment expenses for her injuries.

(v)…