Evans v Allianz [2006] NSWDC 117

New South Wales District Court

CITATION: Evans v Allianz [2006] NSWDC 117

HEARING DATE(S): 28 September 2006 EX TEMPORE JUDGMENT DATE : 09/28/2006

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Application is dismissed; 2. The applicant is to pay the respondent's costs of the motion; 3. Exhibit A is returned with the affidavit material

CATCHWORDS: Full & satisfactory explanation

LEGISLATION CITED: Motor Accidents Compensation Act 1988 ss 109 & 110

PARTIES: Ian Douglas Evans Allianz Australia Insurance Ltd

FILE NUMBER(S): 3388/06

COUNSEL: Solicitor Ms S Hill Counsel P N Khandhar

SOLICITORS: Watson McNamara & Watt Dibbs Abbott Stillman Lawyers

JUDGMENT 3388/06 - IAN DOUGLAS EVANS v ALLIANZ AUSTRALIA INSURANCE LIMITED HER HONOUR:

1 In this matter the plaintiff Mr Ian Evans was injured in a motor vehicle accident that occurred on 22 December 2000. The limitation period in respect to his claim expired on 22 December 2003. Proceedings in respect of his claim were not commenced by that date.

2 On 11 July 2005 the defendant's insurer Allianz served on the plaintiff's solicitor notice under s 100 of the Motor Accidents Compensation Act 1988 requiring that he commence proceedings within three months of receipt of the notice, that is on or about 11 October 2005. Proceedings in respect of his claim were not commenced by that date. Mr Evans therefore requires the Court to exercise its discretion in allowing him to proceed in respect of his claim under both ss 109 and 110 of the Act.

3 To secure that leave it will be necessary for him to establish the following. 1. A full and satisfactory explanation for the delay in the commencement of proceedings as required by s 109(3)(a) of the Act. 2. That the total damages which he is likely to recover would be not less than twenty five per cent of the maximum sum allowed under the Act as required by s 109(3)(b). 3. A full and satisfactory explanation for the failure to comply with the section 110 notice as required by s 110(5) of the Act. 4. That the defendant would be able to secure a fair trial of the issues arising out of his claim. The defendant does not argue this proposition and it is therefore not further addressed in these reasons. 5. As a matter of general discretion, that an extension of time and reinstatement of his claim would be fair and reasonable.