McDonald v Burchmore [2022] NSWDC 709

McDonald v Burchmore [2022] NSWDC 709

The Plaintiff gave an unchallenged full explanation that she was unaware of the limitation period and had never been advised of it by her solicitors or clerk handling the matter. Any failure to advise was attributable to lack of oversight by her legal representatives and could not be visited on the Plaintiff. The...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
11 November 2022
Procedural Posture
Civil Motor Accident Compensation to Relatives Claim / Notice of Motion for Extension of Limitation Period / Leave to Commence Proceedings Out of Time Under S 109 of the Motor Accidents Compensation Act 1999 (nsw)
Outcome
Application granted; limitation period extended until 21 February 2022; each party to pay her own costs by consent.
Legal Topics
['extension of Limitation Period' 'full and Satisfactory Explanation for Delay' 'solicitor Delay or Omission' 'death Claim Arising From Motor Accident']
['civil Procedure' 'motor Accidents Compensation' 'limitation Periods' 'compensation to Relatives'] ['extension of Limitation Period' 'full and Satisfactory Explanation for Delay' 'solicitor Delay or Omission' 'death Claim Arising From Motor Accident']

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Procedural Posture

Civil Motor Accident Compensation to Relatives Claim / Notice of Motion for Extension of Limitation Period / Leave to Commence Proceedings Out of Time Under S 109 of the Motor Accidents Compensation Act 1999 (nsw)

Legal Issues

  1. 1 ['Whether the Plaintiff provided a full and satisfactory explanation for the delay in commencing proceedings under s 109(3)(a) of the Motor Accidents Compensation Act 1999 (NSW).' 'Whether the likely damages satisfied the threshold in s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW).' 'Whether the Plaintiff should be prejudiced by the failure of her legal representatives to advise her about the limitation period.']

Ratio Decidendi

The Plaintiff gave an unchallenged full explanation that she was unaware of the limitation period and had never been advised of it by her solicitors or clerk handling the matter. Any failure to advise was attributable to lack of oversight by her legal representatives and could not be visited on the Plaintiff. The evidence also showed likely damages exceeding the statutory threshold. Accordingly, the requirements of s 109 of the Motor Accidents Compensation Act 1999 (NSW) were satisfied and the limitation period was extended to the date proceedings were commenced.

Court Disposition

Application granted; limitation period extended until 21 February 2022; each party to pay her own costs by consent.

Orders

  • ['The limitation period for bringing a claim arising out of the death of the late Lucija Buljevic on 1 October 2016 is extended until 21 February 2022.' 'By consent, each party will pay her own costs of this application.']