Evans v Allianz [2006] NSWDC 117

Procedural Posture

Civil Motor Accidents Compensation Claim / Application/motion for Leave to Proceed After Expiry of Limitation Period and Failure to Comply With S 110 Notice

Legal Issues

1. 1 ['Whether the applicant provided a full and satisfactory explanation for delay in commencement of proceedings under s 109(3)(a) of the Motor Accidents Compensation Act 1988.' 'Whether the total damages likely to be recovered would be not less than twenty five per cent of the maximum sum allowed under the Act under s 109(3)(b).' 'Whether the applicant provided a full and satisfactory explanation for failure to comply with the s 110 notice under s 110(5).' 'Whether the defendant would be able to secure a fair trial of the issues arising out of the claim.' 'Whether, as a matter of general discretion, an extension of time and reinstatement of the claim would be fair and reasonable.']

Ratio Decidendi

The application was dismissed because the applicant did not provide a full and satisfactory explanation for the delay in commencing proceedings or for failure to comply with the s 110 notice. The affidavit material left substantial gaps concerning the first solicitors, the conduct of Watson McNamara, review of the limitation period, supervision, attention to the s 110 notice, and the certificate of exemption. Although the damages threshold was likely met and no fair trial prejudice was argued, the deficiencies meant the Court could not be satisfied that the failures occurred because of solicitors' incompetence and without the applicant's knowledge.

Court Disposition

Application dismissed.

Orders

• ['Application is dismissed.' "The applicant is to pay the respondent's costs of the motion." 'Exhibit A is returned with the affidavit material.']