Yang v New South Wales Land and Housing Corporation

[2020] NSWSC 1925

Supreme Court

New South Wales

Medium Neutral Citation:

Yang v New South Wales Land and Housing Corporation [2020] NSWSC 1925

Hearing dates:

23 December 2020

Date of orders:

23 December 2020

Decision date:

23 December 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The following questions in the proceeding be determined separately and in advance pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW):

(a) Whether the plaintiff was a person under a disability within the meaning of ss 11(3) and 52(1)(c) of the Limitation Act 1969 for the period:

(i) between 8 February 2013 and 6 July 2013; and/or

(ii) between 1 March 2017 and 21 March 2019; and/or

(iii) between any such other periods between 8 February 2013 and 12 August 2019.

(b) Depending on the answers to questions (a)(i), (a)(ii), and (a)(iii), whether the proceedings are statute-barred having regard to s 14 of the Limitation Act 1969.

Catchwords:

CIVIL PROCEDURE — Separate determination of questions — Whether appropriate — Where defence pleads action statute-barred — Where separate determination of discrete issue likely to bring end to proceedings or narrow issues in dispute

Legislation Cited:

Limitation Act 1969 (NSW), ss 11, 14, 52

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Category:

Procedural and other rulings

Parties:

Yan Lim Yang (Plaintiff)
New South Wales Land and Housing Corporation (Defendant)

Representation:

Counsel:
N Obrart (Plaintiff)
A Bhasin (Defendant)

Solicitors:
Ayoub Lawyers (Plaintiff)
Minter Ellison (Defendant)

File Number(s):

2019/251487

Publication restriction:

None

Judgment

1. This matter comes before me today by way of an Amended Notice of Motion filed by the defendant on 17 December 2020 seeking orders that the matter be referred for determination of a separate question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. Ms Obrart appears for the plaintiff and Mr Bhasin appears for the defendant.

3. The defendant relies on an affidavit of Anita Jane Smith affirmed 17 December 2020 in support of the motion. There is substantial agreement between the parties as to the issues on the motion and indeed agreement that the matter is suitable for determination of the issue by way of a separate question.

4. The issue which the parties seek to be determined by way of a separate question is, in effect, whether the proceedings commenced by the plaintiff are statute-barred having regard to s 14(1)(b) of the Limitation Act 1969 (NSW).

5. As set out in the Further Amended Statement of Claim filed by the plaintiff on 7 September 2020, the plaintiff seeks damages from the defendant in respect of the alleged loss of valuable goods from the property which the plaintiff was occupying up to December 2012. During the period 2000 to December 2012, the plaintiff was residing in a property at Kingswood, pursuant to a Residential Tenancy Agreement with the defendant. He asserts that, as of December 2012, there were valuable goods in the property in the nature of antiques, having a value of $3,642,586.

6. In early 2012, the plaintiff went to China for a short holiday, but he was arrested and incarcerated in China. He remained in that state until July 2013.

7. As pleaded by the plaintiff, at some stage, between December 2012 and 28 March 2013, these valuable antiques went missing, were removed or were stolen. I do not need to say more about the circumstances in which they were removed from the property at this stage.

8. The defendant has filed a Defence in which it pleads that the proceedings are statute-barred, having regard to section 14(1) of the Limitation Act.

9. The plaintiff has filed a reply asserting that the plaintiff was under a disability within the meaning of s 52(1)(c) of the Limitation Act for various periods and that the effect of being under a disability is that the running of the limitation period was suspended for those periods.

10. As I said, there is substantial agreement between the parties on the limitation issue, although I hasten to add that Ms Obrart is not in a position to necessarily agree with all of the following points at this stage. Whether or not there is agreement, it seems clear from the information provided that:

1. The relevant limitation period is six years.

2. The cause of action probably accrued (leaving the issue for determination at a later date) at the latest by 28 March 2013.

3. The proceedings were not commenced within six years of the date on which the cause of action accrued.

4. Subject to the plaintiff establishing that he was under a disability within the meaning of that term in the Limitation Act, there would, at the very least, be a strongly arguable case for the defendant that the proceedings are statute-barred; and

5. The matters of fact which are in dispute and which would need to be determined on the hearing of the separate question are not matters of fact which would be of any relevance to the ultimate issue between the parties. It is an entirely discrete and separate factual issue.

11. As set out in UCPR r 28.2, the Court may make orders for the decision of any questions separately from any other question at any stage in the proceedings.

12. Of course, it is a matter of general principle that all issues should be determined together, but in some circumstances a separate question will have the effect of bringing an end to the proceedings or at least greatly narrowing the issues. In those circumstances, the determination of a separate question at an early stage may be appropriate.

13. It has also often been said that the Court should be cautious in separating out a limitation question because, particularly, for example, in personal injury actions, the facts relevant to the limitation point may also be relevant to the ultimate issue, and it may be inappropriate to thus decide the limitation issue in advance of the main issue.

14. However, that is not this case. I am satisfied that in the circumstances of this matter a determination of the factual dispute, being whether the plaintiff was under a disability for certain periods is, at the very least likely to result in either the matter coming to an end because the proceedings commenced by the plaintiff are statute-barred or the defence raised by the defendant under the Limitation Act being determined as having no merit.

15. Although it will be necessary for there to be evidence and although there are disputed matters of fact, they are discrete issues. Under the circumstances it seems appropriate that the question of the plaintiff's disability and whether the defendant may rely on its Limitation Act defence be determined in advance of the main hearing.

16. In the circumstances, I am prepared to make the orders sought in the plaintiff's motion. As discussed with the parties, it will be necessary that there be some additional questions which deal with the ultimate question of whether the proceedings are statute-barred.

17. In the circumstances I order that:

1. The following questions in the proceeding be determined separately and in advance pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW):

1. Whether the plaintiff was a person under a disability within the meaning of ss 11(3) and 52(1)(c) of the Limitation Act 1969 for the period:

1. between 8 February 2013 and 6 July 2013; and/or

2. between 1 March 2017 and 21 March 2019; and/or

3. between any such other periods between 8 February 2013 and 12 August 2019.

2. Depending on the answers to questions (a)(i), (a)(ii), and (a)(iii), whether the proceedings are statute-barred having regard to s 14 of the Limitation Act 1969.

2. The plaintiff serve lay and expert evidence in respect of the above question on or before 26 February 2021.

3. The defendant serve lay and expert evidence in respect of the above question on or before 9 April 2021.

4. The plaintiff serve any evidence in reply on or before 30 April 2021.

5. The proceeding is listed for further directions on 7 May 2021.

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Decision last updated: 06 January 2021