Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102

Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102

It was fair and just to grant leave because, despite the delay, a satisfactory explanation was provided, there was no evidence of actual prejudice to the second defendant, and relevant parties and their insurers had been on notice of possible litigation since the accident.

Parties
Plaintiff: David Hole; First Defendant: Greg Lyons Building Constructions; Second Defendant: Briter Door Solutions Pty Ltd
Jurisdiction
Australia
Judgment Date
13 February 2020
Procedural Posture
Application for Leave to Commence Proceedings Out of Time / Interlocutory Judgment
Outcome
Plaintiff granted leave to commence proceedings out of time against the second defendant. Plaintiff to pay second defendant's costs of the motion, but such costs are not payable until proceedings are concluded.
Legal Topics
Leave to Commence Proceedings Out of Time, Limitation Periods, Prejudice, Explanation for Delay, Workers Compensation Act 1987 (nsw) S 151 D(2)
Workers Compensation Civil Liability Leave to Commence Proceedings Out of Time Limitation Periods Prejudice Explanation for Delay Workers Compensation Act 1987 (nsw) S 151 D(2)

Case Brief

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Parties

David Hole

Plaintiff

Greg Lyons Building Constructions

First Defendant

Briter Door Solutions Pty Ltd

Second Defendant

Procedural Posture

Application for Leave to Commence Proceedings Out of Time / Interlocutory Judgment

Legal Issues

  1. 1 Whether leave should be granted to commence proceedings more than three years after the injury under s 151D(2) of the Workers Compensation Act 1987 (NSW)
  2. 2 Whether it is fair and just to grant leave
  3. 3 Adequacy of explanation for delay

Ratio Decidendi

It was fair and just to grant leave because, despite the delay, a satisfactory explanation was provided, there was no evidence of actual prejudice to the second defendant, and relevant parties and their insurers had been on notice of possible litigation since the accident.

Court Disposition

Plaintiff granted leave to commence proceedings out of time against the second defendant. Plaintiff to pay second defendant's costs of the motion, but such costs are not payable until proceedings are concluded.

Orders

  • Plaintiff granted leave nunc pro tunc to commence proceedings against the second defendant, pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW), by the first amended statement of claim filed on 22 January 2019.
  • Plaintiff must pay the costs of the second defendant pertaining to this motion.