Belan v Casey [2002] NSWSC 683

Belan v Casey [2002] NSWSC 683

The claim could not be struck out because, although any claim for contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 was clearly out of time, the pleading did not establish that the plaintiffs' claim was necessarily confined to that statutory cause of action. The common law had allowed contribution between tortfeasors in some limited circumstances, and without investigation of the facts at trial it could not be said that the general law would not have allowed contribution or that the limitation defence would inevitably succeed.

Jurisdiction
Australia
Judgment Date
22 July 2002
Procedural Posture
Notice of Motion to Strike Out the Plaintiffs' Claims for Contribution / Hearing of Defendant's Notice of Motion
Outcome
Notice of motion dismissed; striking out of the claim seeking contribution between tortfeasors refused.
Legal Topics
['contribution Between Tortfeasors' 'joint and Several Liability' 'common Law and Equitable Contribution' 'limitation Period for Statutory Contribution Claims']
['limitation of Actions' 'torts' 'equity'] ['contribution Between Tortfeasors' 'joint and Several Liability' 'common Law and Equitable Contribution' 'limitation Period for Statutory Contribution Claims']

Case Brief

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Procedural Posture

Notice of Motion to Strike Out the Plaintiffs' Claims for Contribution / Hearing of Defendant's Notice of Motion

Legal Issues

  1. 1 ["Whether the plaintiffs' claim for contribution was statute barred by s 26(1)(a) of the Limitation Act (NSW) 1969." "Whether the plaintiffs' claim was necessarily confined to a statutory claim under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 or could proceed as a common law or equitable claim for contribution." 'Whether the statement of claim demonstrated that the limitation defence would inevitably succeed.']

Ratio Decidendi

The claim could not be struck out because, although any claim for contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 was clearly out of time, the pleading did not establish that the plaintiffs' claim was necessarily confined to that statutory cause of action. The common law had allowed contribution between tortfeasors in some limited circumstances, and without investigation of the facts at trial it could not be said that the general law would not have allowed contribution or that the limitation defence would inevitably succeed.

Court Disposition

Notice of motion dismissed; striking out of the claim seeking contribution between tortfeasors refused.

Orders

  • ["The defendant's notice of motion was dismissed." "The defendant was ordered to pay the plaintiffs' costs of the motion."]