Reznitsky v Rothonis [2021] NSWSC 281

Reznitsky v Rothonis [2021] NSWSC 281

The plaintiff failed to establish on the balance of probabilities that he was under a disability, because he provided no medical evidence or other evidence showing incapacity or substantial impediment in managing his affairs. The limitation period was therefore not suspended. On the plaintiff's own evidence the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 March 2021
Procedural Posture
Application to Extend the Limitation Period in Relation to a Personal Injury Claim / Amended Summons Seeking Extension of Time; Defendants' Notice of Motion Seeking Dismissal
Outcome
Application dismissed; proceedings dismissed; plaintiff ordered to pay defendants' costs on an ordinary basis.
Legal Topics
['extension of Limitation Period Under Limitation Act 1969 (nsw) S 60 C' 'matters Considered Under Limitation Act 1969 (nsw) S 60 E' 'disability and Suspension of Limitation Period Under Limitation Act 1969 (nsw) Ss 11 and 52' 'dismissal of Proceedings' 'costs']
['limitation of Actions' 'personal Injury' 'medical Negligence' 'civil Procedure'] ['extension of Limitation Period Under Limitation Act 1969 (nsw) S 60 C' 'matters Considered Under Limitation Act 1969 (nsw) S 60 E' 'disability and Suspension of Limitation Period Under Limitation Act 1969 (nsw) Ss 11 and 52' 'dismissal of Proceedings' 'costs']

Source-derived case record

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Procedural Posture

Application to Extend the Limitation Period in Relation to a Personal Injury Claim / Amended Summons Seeking Extension of Time; Defendants' Notice of Motion Seeking Dismissal

Legal Issues

  1. 1 ['Whether the plaintiff was under a disability within the meaning of Limitation Act 1969 (NSW) s 11(3)(b) so that the running of the limitation period was suspended under s 52.' "Whether the limitation period for the plaintiff's personal injury claim should be extended under Limitation Act 1969 (NSW) s 60C having regard to the matters in s 60E." 'Whether it was just and reasonable to extend time and whether a fair trial could be conducted despite the delay.' 'Whether the plaintiff had demonstrated a viable cause of action against the defendants.']

Ratio Decidendi

The plaintiff failed to establish on the balance of probabilities that he was under a disability, because he provided no medical evidence or other evidence showing incapacity or substantial impediment in managing his affairs. The limitation period was therefore not suspended. On the plaintiff's own evidence the incident occurred on 23 February 2002 and the limitation period expired by 28 February 2005, with any possible extension under s 60C expiring by 28 February 2010; the summons filed on 5 February 2020 was about 10 years outside even that extended period. In any event, the long delay, absence of supporting medical evidence, lack of expert liability evidence, presumptive prejudice to...

Court Disposition

Application dismissed; proceedings dismissed; plaintiff ordered to pay defendants' costs on an ordinary basis.

Orders

  • ["The plaintiff's amended summons dated 5 February 2020 and the proceedings are dismissed." "The plaintiff is to pay the defendants' costs of the proceedings on an ordinary basis."]