Vu v Nominal Defendant & NRMA Insurance Ltd [2010] NSWDC 262

New South Wales District Court

CITATION: Vu v Nominal Defendant & NRMA Insurance Ltd [2010] NSWDC 262

HEARING DATE(S): 4 November 2010

JUDGMENT DATE: 25 November 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

1. The applicant/second defendant's motion is dismissed; DECISION: 2. The applicant/second defendant is to pay the respondent/plaintiff's costs of the motion filed on 2 July 2010; 3. The vacated case management listing that was scheduled to take place on 25 November 2010 is rescheduled to take place before the Judicial Registrar at 9.30am on Monday 7 February 2011; 4. Liberty to apply on 7 days notice if further orders are required.

CATCHWORDS: LIMITATION OF ACTIONS – consideration of s 73 and s 109(3) of Motor Accidents Compensation Act 1999 – second defendant's application for dismissal of plaintiff's claim – whether full and satisfactory explanation for delays – whether proceedings should be dismissed on account of futility – whether plaintiff had an arguable case for distinguishing the decision in Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 with the effect of enabling an argument that the plaintiff had sustained an injury caused during a collision involving the parking, or use, or operation, of a motor vehicle

LEGISLATION CITED: Motor Accidents Compensation Act 1999, s 3, s 66(2), s 73, s 109(3)(a)

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 12 CASES CITED: Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Salido v Nominal Defendant (1993) 32 NSWLR 524 Walker v Howard [2009] NSWCA 408 Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323 Zotti v Australian Associated Motor Insurers Limited [2010] HCAASP 30