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

New South Wales District Court

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

HEARING DATE(S): 3 October 2008

JUDGMENT DATE: 8 October 2008

JURISDICTION: Civil

JUDGMENT OF: Elkaim SC DCJ

DECISION: See paragraphs 20 and 21

CATCHWORDS: Date of Discoverability

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 Limitation Act 1969

CASES CITED: Baker-Morrison v State of New South Wales [2008] NSWDC 129 Foster v QBE Insurance (Australia) Ltd [2008] NSWSC 1004

Robyn Cunningham (Plaintiff) PARTIES: Independent Unit Management Pty Ltd (First Defendant) Brett Anthony Harrington t/as Harrington Electrical Services (Proposed Second Defendant)

FILE NUMBER(S): 3076/07

Mr A Campbell (Plaintiff) COUNSEL: Mr R Perla (First Defendant) Mr K Kelleher (Proposed Second Defendant)

Gerard Malouf & Partners (Plaintiff) SOLICITORS: Moray & Agnew (First Defendant) Gadens Lawyers (Proposed Second Defendant)

JUDGMENT

1. HIS HONOUR: This is a Notice of Motion, filed by the plaintiff on 8 September 2008, to join a second defendant to already existing proceedings. The Motion is brought pursuant to Rule 6.24 of the Uniform Civil Procedure Rules 2005.

2. The plaintiff relies on an affidavit she swore on 3 June 2008 and two affidavits of a solicitor, Mr Cossalter, sworn on 22 April 2008 and 29 May 2008. The defendant relies on an affidavit of Ms Blacker sworn 1 October 2008.

3. The affidavit of Ms Blacker raises the point that the proceedings against the proposed second defendant are 'out of time' and therefore leave should not be granted. It was not disputed that the proposed defendant could take a limitation point in resistance to his being joined to the proceedings.