Zein v Wazen - [2019] NSWDC 392

District Court

New South Wales

Medium Neutral Citation: Zein v Wazen [2019] NSWDC 392
Hearing dates: 5 and 19 July 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
1. In the notice of motion filed by the plaintiff on 1 May 2019, pursuant to s 109 of the MAC Act, the plaintiff is granted leave to commence and to maintain the present proceedings;
2. The plaintiff's costs of the notice of motion filed on 1 May 2019 are to be paid by the defendant, except in relation to the short hearing on 19 July 2019, in respect of which the defendant's costs of that hearing are to be paid by the plaintiff;
3. In the notice of motion filed by the defendant on 10 May 2019, pursuant to s 119 of the MAC Act, Insurance Australia Limited trading as NRMA Insurance is joined as a party to the proceedings;
4. The costs incurred by the parties in respect of the defendant's motion filed on 10 May 2019 are to be costs in the cause;
5. Within 14 days of today's date, the parties are required to agree upon and file an amended statement of claim that gives effect to order (3) above;
6. The costs the subject of orders (2) and (4) above are to be agreed or assessed on the ordinary basis unless a party is able to show the basis for some other costs order;
7. The exhibits may be returned;
8. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: LIMITATION OF ACTIONS – negligence – motor vehicle accident – claim for damages for alleged negligence – whether delay in commencing proceedings has been explained fully and satisfactorily and whether damages threshold stipulated by s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW) has been met – joinder of insurer pursuant to s 119 of the Motor Accidents Compensation Act 1999 (NSW)
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), s 66, s 81, s 109, s 119
Uniform Civil Procedure Rules 2005, Sch 7 cl 3(d)
Cases Cited: Dijakovic v Perez [2015] NSWCA 174
Eades v Gunestepe [2012] NSWCA 204
Insurance Australia Limited trading as NRMA v Ural [2015] NSWSC 620
Insurance Australia Limited v Dent [2019] NSWCA 134
Sinclair v Darwich [2010] NSWCA 195
Smith v Grant [2006] NSWCA 244
Category: Procedural and other rulings
Parties: Nassim Khodr Zein (Plaintiff)
Said Wazen (Defendant)
Representation:
Counsel:
Mr J Jobson (Plaintiff)
Mr J Guihot (Defendant)
Solicitors:
Stephen Spinak (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2019/65785
Publication restriction: None

Judgment

Table of Contents

Notices of motion

[1] – [2]

First notice of motion

[3] – [4]

Second notice of motion

[5] – [6]

Evidence relied upon by the parties

[7] – [10]

Legislation

[11] – [12]

Applicable legal principles

[13] – [18]

Chronology of events

[19] – [20]

Plaintiff’s explanation for delay in commencing proceedings

[21] – [31]

Solicitor’s…

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 Zein v Wazen

Details

AGLC: Zein v Wazen [2019] NSWDC 392
Case: [2019] NSWDC 392
Decision Date: 09 August 2019

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the plaintiff, Zein, sought to recover damages from the defendant, Wazen, following a motor vehicle accident. The defendant contested the claim, arguing that the plaintiff's action was statute-barred under the Motor Accidents Compensation Act 1999 (NSW) and that the damages threshold had not been met. The defendant also sought to join the insurer, Insurance Australia Limited trading as NRMA Insurance, to the proceedings.

The court was required to determine whether the plaintiff's delay in commencing the proceedings had been explained fully and satisfactorily, and whether the damages threshold stipulated by s 109(3)(b) of the Act had been met. Additionally, the court had to decide whether the insurer should be joined to the proceedings as required by s 119 of the Act.

The court held that the plaintiff had provided a satisfactory explanation for the delay in commencing the proceedings, and that the damages threshold had been met. The court also found that the insurer should be joined to the proceedings as the defendant's insurer at the time of the accident. The court granted the plaintiff leave to commence and maintain the proceedings and ordered that the insurer be joined as a party. The court also made orders regarding the costs of the proceedings.

In summary, the court granted the plaintiff's application to commence and maintain the proceedings, joined the insurer to the proceedings, and made orders regarding the costs of the proceedings. The plaintiff was granted leave to commence and maintain the proceedings, and the defendant's insurer was joined as a party. The court also made orders regarding the costs of the proceedings, with the plaintiff to pay the defendant's costs of the hearing on 19 July 2019, and the defendant to pay the plaintiff's costs of the notice of motion filed on 1 May 2019. The parties were required to agree upon and file an amended statement of claim within 14 days of the court's decision.

Orders

Orders of the court

1. In the notice of motion filed by the plaintiff on 1 May 2019, pursuant to s 109 of the MAC Act, the plaintiff is granted leave to commence and to maintain the present proceedings;

2. The plaintiff's costs of the notice of motion filed on 1 May 2019 are to be paid by the defendant, except in relation to the short hearing on 19 July 2019, in respect of which the defendant's costs of that hearing are to be paid by the plaintiff;

3. In the notice of motion filed by the defendant on 10 May 2019, pursuant to s 119 of the MAC Act, Insurance Australia Limited trading as NRMA Insurance is joined as a party to the proceedings;

4. The costs incurred by the parties in respect of the defendant's motion filed on 10 May 2019 are to be costs in the cause;

5. Within 14 days of today's date, the parties are required to agree upon and file an amended statement of claim that gives effect to order (3) above;

6. The costs the subject of orders (2) and (4) above are to be agreed or assessed on the ordinary basis unless a party is able to show the basis for some other costs order;

7. The exhibits may be returned;

8. Liberty to apply on 7 days’ notice if further or other orders are required.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Zein v Wazen [2019] NSWDC 392
Hearing dates:	5 and 19 July 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	1. In the notice of motion filed by the plaintiff on 1 May 2019, pursuant to s 109 of the MAC Act, the plaintiff is granted leave to commence and to maintain the present proceedings; 2. The plaintiff's costs of the notice of motion filed on 1 May 2019 are to be paid by the defendant, except in relation to the short hearing on 19 July 2019, in respect of which the defendant's costs of that hearing are to be paid by the plaintiff; 3. In the notice of motion filed by the defendant on 10 May 2019, pursuant to s 119 of the MAC Act, Insurance Australia Limited trading as NRMA Insurance is joined as a party to the proceedings; 4. The costs incurred by the parties in respect of the defendant's motion filed on 10 May 2019 are to be costs in the cause; 5. Within 14 days of today's date, the parties are required to agree upon and file an amended statement of claim that gives effect to order (3) above; 6. The costs the subject of orders (2) and (4) above are to be agreed or assessed on the ordinary basis unless a party is able to show the basis for some other costs order; 7. The exhibits may be returned; 8. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	LIMITATION OF ACTIONS – negligence – motor vehicle accident – claim for damages for alleged negligence – whether delay in commencing proceedings has been explained fully and satisfactorily and whether damages threshold stipulated by s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW) has been met – joinder of insurer pursuant to s 119 of the Motor Accidents Compensation Act 1999 (NSW)
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 66, s 81, s 109, s 119 Uniform Civil Procedure Rules 2005, Sch 7 cl 3(d)
Cases Cited:	Dijakovic v Perez [2015] NSWCA 174 Eades v Gunestepe [2012] NSWCA 204 Insurance Australia Limited trading as NRMA v Ural [2015] NSWSC 620 Insurance Australia Limited v Dent [2019] NSWCA 134 Sinclair v Darwich [2010] NSWCA 195 Smith v Grant [2006] NSWCA 244
Category:	Procedural and other rulings
Parties:	Nassim Khodr Zein (Plaintiff) Said Wazen (Defendant)
Representation:	Counsel: Mr J Jobson (Plaintiff) Mr J Guihot (Defendant) Solicitors: Stephen Spinak (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2019/65785
Publication restriction:	None

Notices of motion	[1] – [2]
First notice of motion	[3] – [4]
Second notice of motion	[5] – [6]
Evidence relied upon by the parties	[7] – [10]
Legislation	[11] – [12]
Applicable legal principles	[13] – [18]
Chronology of events	[19] – [20]
Plaintiff’s explanation for delay in commencing proceedings	[21] – [31]
Solicitor’s…