Leonard v Gaincrew Pty Ltd [2007] NSWSC 1408

Leonard v Gaincrew Pty Ltd [2007] NSWSC 1408

The plaintiff acquired the decisive material facts concerning Windsurf and Wyvill in May 2005 at the earliest, and concerning Carlson in June 2006, and the relevant applications were filed within one year. There was evidence to establish arguable rights of action with reasonable prospects of success against Windsurf, Wyvill and Carlson, arising from alleged non-compliance with USL Code requirements for handrails and lighting and the design or certification of the vessel. Although about nine years had passed and there was presumptive prejudice, relevant documents and witnesses remained available, Wyvill and Carlson had sufficient recollection or reports, Windsurf and Wyvill were already...

Jurisdiction
Australia
Judgment Date
07 December 2007
Procedural Posture
Personal Injury Proceedings; Application for Extension of Limitation Period and Joinder / Further Amended Notice of Motion Seeking Leave to Join Proposed Defendants and Extend the Limitation Period
Outcome
Plaintiff's application granted in relation to Windsurf Holdings Pty Limited trading as Mark Ellis Marine Design & Management, Robert Kerry Wyvill and John Douglas Carlson; costs reserved.
Legal Topics
['extension of Limitation Period Under Limitation of Actions Act 1974 (qld)' 'material Facts of a Decisive Character' 'means of Knowledge' 'joinder of Defendants' 'fair Trial Prejudice' 'marine Survey and Vessel Design']
['limitation of Actions' 'personal Injury' 'negligence' 'civil Procedure'] ['extension of Limitation Period Under Limitation of Actions Act 1974 (qld)' 'material Facts of a Decisive Character' 'means of Knowledge' 'joinder of Defendants' 'fair Trial Prejudice' 'marine Survey and Vessel Design']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Personal Injury Proceedings; Application for Extension of Limitation Period and Joinder / Further Amended Notice of Motion Seeking Leave to Join Proposed Defendants and Extend the Limitation Period

Legal Issues

  1. 1 ['Whether the limitation period should be extended for claims against Windsurf Holdings Pty Limited trading as Mark Ellis Marine Design & Management and Robert Kerry Wyvill.' 'Whether the limitation period should be extended for the claim against John Douglas Carlson.' 'Whether the plaintiff knew, or by reasonable steps ought to have known, material facts of a decisive character within the relevant time.' 'Whether there was evidence to establish a right of action apart from a limitation defence.' 'Whether delay, missing documents, deregistration or liquidation of entities, and loss of insurance cover meant the proposed defendants could not receive a fair trial.']

Ratio Decidendi

The plaintiff acquired the decisive material facts concerning Windsurf and Wyvill in May 2005 at the earliest, and concerning Carlson in June 2006, and the relevant applications were filed within one year. There was evidence to establish arguable rights of action with reasonable prospects of success against Windsurf, Wyvill and Carlson, arising from alleged non-compliance with USL Code requirements for handrails and lighting and the design or certification of the vessel. Although about nine years had passed and there was presumptive prejudice, relevant documents and witnesses remained available, Wyvill and Carlson had sufficient recollection or reports, Windsurf and Wyvill were already...

Court Disposition

Plaintiff's application granted in relation to Windsurf Holdings Pty Limited trading as Mark Ellis Marine Design & Management, Robert Kerry Wyvill and John Douglas Carlson; costs reserved.

Orders

  • ['I grant the plaintiff an extension of the limitation period to commence proceedings against Windsurf Holdings Pty Limited t/as Mark Ellis Marine Design & Management, Robert Kerry Wyvill and John Douglas Carlson up to and including 21 December 2007.' 'I grant leave to join Windsurf Holdings Pty Limited t/as Mark...