Tolmie v Stockland Trust Management Limited [2009] NSWDC 283

Reported Decision : 10 DCLR (NSW) 45

New South Wales District Court

CITATION: Tolmie v Stockland Trust Management Limited [2009] NSWDC 283

HEARING DATE(S): 20/08/09

JUDGMENT DATE: 3 November 2009

JURISDICTION: Civil

JUDGMENT OF: Bozic SC DCJ

DECISION: The plaintiff's action against the second defendant is maintainable. The second defendant to pay the plaintiff's costs of the motion.

CATCHWORDS: LIMITATION OF ACTIONS - action for damages for personal injury - date when cause of action is discoverable - whether plaintiff ought to have known of the fact that the injury was caused by the fault of the second defendant - whether plaintiff took all reasonable steps by seeking legal advice thirteen months after accident - whether fault of the second defendant would have been ascertained if reasonable steps taken - Limitation Act 1969 (NSW), ss 50C, 50D - WORDS & PHRASES - "discoverable" - "fault" - "ought to know"

LEGISLATION CITED: Limitation Act 1969

Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bostik Australia v Liddiard & Anor [2009] NSWCA 167 CASES CITED: Country Waste Systems Pty Limited v Lauren Jane Wright [2007] NSWDC 287 Frizelle v Bauer [2009] NSWCA 239 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Toppin v Coles Myer Limited v McVean [2007] NSWDC 256

Margaret Tolmie (plaintiff) PARTIES: Stockland Trust Management Limited (first defendant) David Frazer and Gregory Manson t/a Quick Serve Fruit & Veg Shop (second defendant)

FILE NUMBER(S): 193/2008

Mr V Jurisich (plaintiff) COUNSEL: Ms L Amy (solicitor) (first defendant) Mr D Lloyd (second defendant)