Kheyo v Iglesias [2020] NSWDC 323

District Court New South Wales

Medium Neutral Citation: Kheyo v Iglesias [2020] NSWDC 323 Hearing dates: 16 June 2020 Date of orders: 17 June 2020 Decision date: 17 June 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 72 Catchwords: TORTS – motor accident – statutory requirement to bring a claim within 6 months of date of accident – claimant's inability to identify other driver until after expiry of time limitation – late claim against defendant – whether "full and satisfactory" explanation – relevance of delay in inquiry by claimant's solicitor Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 66,72, 73 Cases Cited: Brierley v Ellis [2014] NSWCA 230 Hunter v Roberts [2019] NSWCA 116 Karambelas v Zaknic (No. 2) [2014] NSWCA 433 Mancini v Thompson [2002] NSWCA 38 Smith v Grant [2006] NSWCA 244 Walker v Howard (2009) 78 NSWLR 161 Category: Principal judgment Parties: Mr J Kheyo (Plaintiff) Mr F Iglesias (Defendant) Representation: Counsel: Mr J Malouf for the Plaintiff Mr W Reynolds for the Defendant

Solicitors: Gerard Malouf & Partners for the Plaintiff Moray & Agnew Lawyers for the Defendant File Number(s): 2020/83686 Publication restriction: Nil

Judgment

INTRODUCTION 1. The plaintiff (the respondent to the application) alleges that he was involved in a motor accident on 18 September 2017 in which he was a front seat passenger. By his statement of claim dated 16 March 2020, he has brought a claim for damages for personal injury arising from the accident. By s 72 of the Motor Accidents Compensation Act 1999 (NSW) (the 'MAC Act') the period of time in which he was required to bring a claim expired on 18 March 2018. In that period, the plaintiff duly brought a claim against the Nominal Defendant, since he was unable to identify the driver of the vehicle that collided with the vehicle in which he was a passenger. However, after that claim was brought, and after the limitation period had expired for bringing claims, he discovered the identity of the other driver. He then brought a new claim against the defendant on 4 May 2018, a period just over 7 weeks after the time the legislation required him to bring the claim against the defendant. The insurer for the defendant, GIO, sought explanation for the delay and, after multiple explanations and answers to requests for information were supplied to it, rejected the claim. The respondent thereafter commenced this proceeding. 2. By a notice of motion dated 8 May 2020, the defendant (the applicant) seeks an order pursuant to s 73(5) of the MAC Act for the proceeding to be dismissed. That application is opposed. 3. The ultimate issue in this application is whether the plaintiff provided 'full and satisfactory explanation' for his delay in making the claim. The defendant says that such explanation, or explanations in the aggregate, as has or have been given for the delay in bringing the claim against the defendant, are neither full nor satisfactory.