Cunningham v Independent Unit Management Pty Ltd [2008] NSWDC 222

Cunningham v Independent Unit Management Pty Ltd [2008] NSWDC 222

The three-year limitation period under s 50C-Limitation Act 1969 runs from when the plaintiff knew her injury was caused by the fault of the defendant sought to be joined, which was not before 21 April 2006, and due to the plaintiff's circumstances and reliance on solicitors, the actions or inaction of her solicitors should not be imputed to her for the purposes of s 50D(2). The application to join the proposed second defendant is not out of time and should be allowed.

Parties
Plaintiff: Robyn Cunningham; First Defendant: Independent Unit Management Pty Ltd; Proposed Second Defendant: Brett Anthony Harrington t/as Harrington Electrical Services
Jurisdiction
Australia
Judgment Date
08 October 2008
Procedural Posture
Civil / Notice of Motion to Join Second Defendant
Outcome
Orders made as sought in the Notice of Motion to join the second defendant. Costs of the Motion to be paid by the plaintiff, with observation that it would be unjust for the plaintiff personally to bear those costs.
Legal Topics
Date of Discoverability, Limitation Periods, Joinder of Parties
Civil Procedure Personal Injury Date of Discoverability Limitation Periods Joinder of Parties

Case Brief

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Parties

Robyn Cunningham

Plaintiff

Independent Unit Management Pty Ltd

First Defendant

Brett Anthony Harrington t/as Harrington Electrical Services

Proposed Second Defendant

Procedural Posture

Civil / Notice of Motion to Join Second Defendant

Legal Issues

  1. 1 What is the date of discoverability for the limitation period under the Limitation Act 1969 in relation to the proposed second defendant?
  2. 2 Should the plaintiff's notice of motion to join a second defendant be granted given the allegation of the claim being out of time under the Limitation Act 1969?

Ratio Decidendi

The three-year limitation period under s 50C-Limitation Act 1969 runs from when the plaintiff knew her injury was caused by the fault of the defendant sought to be joined, which was not before 21 April 2006, and due to the plaintiff's circumstances and reliance on solicitors, the actions or inaction of her solicitors should not be imputed to her for the purposes of s 50D(2). The application to join the proposed second defendant is not out of time and should be allowed.

Court Disposition

Orders made as sought in the Notice of Motion to join the second defendant. Costs of the Motion to be paid by the plaintiff, with observation that it would be unjust for the plaintiff personally to bear those costs.

Orders

  • Orders 1 and 2 in the Notice of Motion filed 8 September 2008 are made, joining Brett Anthony Harrington t/as Harrington Electrical Services as second defendant.
  • Plaintiff to pay the costs of the Motion.