Smith v. Rynne [2005] NSWCA 77

Smith v. Rynne [2005] NSWCA 77

The pleaded contractual claim alleged breaches of clauses 2(iii) and 2(iv) of the deed and was, in substance, an action founded on breach of duty for damages for personal injury. It therefore fell within s.18A of the Limitation Act 1969 (NSW), and by s.13 the three-year limitation period applied despite the deed. The primary judge erred in preserving that pleaded contractual claim. However, possible claims under clauses 2(v) and 2(vi) based on compensation or indemnity for loss arising from an act or omission of the miner were arguable and might not fall within s.18A if the only breach of duty was failure to compensate or indemnify rather than a breach causing the injury. The proper order...

Jurisdiction
Australia
Judgment Date
21 March 2005
Procedural Posture
Application for Leave to Appeal and Appeal From District Court Orders Dismissing an Application to Strike Out the Statement of Claim and Dismiss Proceedings as Statute Barred / New South Wales Court of Appeal; Leave to Appeal Granted and Appeal Allowed
Outcome
Leave to appeal granted; appeal allowed; orders below set aside; Statement of Claim struck out with liberty to submit an Amended Statement of Claim and seek leave to introduce it as an amendment.
Legal Topics
['whether Contractual Rights Under a Deed Were Joint or Several' 'necessary Parties to Enforce Joint Covenants' 'whether Claims Founded on a Deed Were Subject to the Three Year Personal Injury Limitation Period' 'strike Out of Statement of Claim' 'amendment After Limitation Period']
['contracts' 'civil Procedure' 'limitation of Actions' 'personal Injury'] ['whether Contractual Rights Under a Deed Were Joint or Several' 'necessary Parties to Enforce Joint Covenants' 'whether Claims Founded on a Deed Were Subject to the Three Year Personal Injury Limitation Period' 'strike Out of Statement of Claim' 'amendment After Limitation Period']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From District Court Orders Dismissing an Application to Strike Out the Statement of Claim and Dismiss Proceedings as Statute Barred / New South Wales Court of Appeal; Leave to Appeal Granted and Appeal Allowed

Legal Issues

  1. 1 ['Whether the pleaded contractual claim based on breach of clauses 2(iii) and 2(iv) of the deed was a cause of action founded on breach of duty for damages for personal injury within s.18A of the Limitation Act 1969 (NSW).' 'Whether s.13 of the Limitation Act 1969 (NSW) made the earlier three-year limitation period applicable notwithstanding the twelve-year limitation period for actions founded on a deed.' 'Whether possible claims under clauses 2(v) and 2(vi) of the deed required both owners to be parties because the covenants were joint.' 'Whether the proceedings should be dismissed or the Statement of Claim struck out with liberty to seek leave to amend.']

Ratio Decidendi

The pleaded contractual claim alleged breaches of clauses 2(iii) and 2(iv) of the deed and was, in substance, an action founded on breach of duty for damages for personal injury. It therefore fell within s.18A of the Limitation Act 1969 (NSW), and by s.13 the three-year limitation period applied despite the deed. The primary judge erred in preserving that pleaded contractual claim. However, possible claims under clauses 2(v) and 2(vi) based on compensation or indemnity for loss arising from an act or omission of the miner were arguable and might not fall within s.18A if the only breach of duty was failure to compensate or indemnify rather than a breach causing the injury. The proper order...

Court Disposition

Leave to appeal granted; appeal allowed; orders below set aside; Statement of Claim struck out with liberty to submit an Amended Statement of Claim and seek leave to introduce it as an amendment.

Orders

  • ['Leave to appeal granted, Notice to Appeal to be filed within 14 days.' 'Appeal allowed.' 'Orders below set aside.' 'Statement of Claim struck out.' 'Liberty to opponent to submit an Amended Statement of Claim and seek leave to introduce it as an amendment.' 'Costs of application to date to be costs in the...