Zappavigna v PQ Australia & Ors [2003] NSWSC 205

Zappavigna v PQ Australia & Ors [2003] NSWSC 205

The plaintiff failed to discharge the onus of showing a clear case for summary relief, as the material raised at least a triable issue regarding whether the alleged disability had the requisite nexus with the cause of action for the purposes of the limitation defences under s 11(3) of the Limitation Act 1969.

Source-derived case information.

Parties
Plaintiff: Giuseppe Zappavigna by his tutor Josephine Zappavigna; First Defendant/cross Claimant/first Cross Defendant to Second Cross Claim: PQ Australia Pty Limited; Second Defendant/first Cross Defendant/second Cross Defendant to Second Cross Claim: Elliott & Rose Fabrications (NSW) Pty Ltd; Third Defendant/second Cross Defendant/cross Claimant to Second Cross Claim: Gavin Andrew Vernon (formerly trading as D E Vernon & Co.)
Jurisdiction
Australia
Judgment Date
26 March 2003
Procedural Posture
Notice of Motion in Common Law Personal Injury Action / Interlocutory Application: Summary Relief and Amendment of Defence
Outcome
Plaintiff's Notice of Motion dismissed; first defendant granted leave to amend defence; costs awarded as specified.
Legal Topics
Disability Under Limitation Law, Summary Relief, Leave to Amend Defence
Civil Procedure Limitation of Actions Personal Injury Disability Under Limitation Law Summary Relief Leave to Amend Defence

Source-derived case record

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Parties

Giuseppe Zappavigna by his tutor Josephine Zappavigna

Plaintiff

PQ Australia Pty Limited

First Defendant/cross Claimant/first Cross Defendant to Second Cross Claim

Elliott & Rose Fabrications (NSW) Pty Ltd

Second Defendant/first Cross Defendant/second Cross Defendant to Second Cross Claim

Gavin Andrew Vernon (formerly trading as D E Vernon & Co.)

Third Defendant/second Cross Defendant/cross Claimant to Second Cross Claim

Procedural Posture

Notice of Motion in Common Law Personal Injury Action / Interlocutory Application: Summary Relief and Amendment of Defence

Legal Issues

  1. 1 Whether the plaintiff should have summary relief striking out limitation defences based on alleged disability
  2. 2 Whether first defendant should have leave to amend defence to plead limitation

Ratio Decidendi

The plaintiff failed to discharge the onus of showing a clear case for summary relief, as the material raised at least a triable issue regarding whether the alleged disability had the requisite nexus with the cause of action for the purposes of the limitation defences under s 11(3) of the Limitation Act 1969.

Court Disposition

Plaintiff's Notice of Motion dismissed; first defendant granted leave to amend defence; costs awarded as specified.

Orders

  • Plaintiff's Notice of Motion is dismissed.
  • Plaintiff to pay the costs of the application to strike out limitation defences.