NSW Caselaw
New South Wales Court of Appeal
CITATION : Christopher COSTELLO v Mark ARRAGON [2004] NSWCA 240 HEARING DATE(S) : 5 July 2004 JUDGMENT DATE : 19 July 2004
JUDGMENT OF : Mason P at 1; McColl JA at 55 DECISION : Grant leave to appeal. Appeal dismissed with costs.
CATCHWORDS : Motor Accidents Act 1988 - claim for damages sustained in motor accident - limitation period expired - proceedings not commenced within time so leave of the court required - whether plaintiff provided a full and satisfactory explanation for delay - whether plaintiff had been given and accepted advice not to proceed with car accident claim. (ND) PARTIES : Christopher COSTELLO Mark ARRAGON FILE NUMBER(S) : CA 40716/03 COUNSEL : Claimant: K Rewell SC/ A Capelin Opponent: C Hoeben SC SOLICITORS : Claimant: Dibbs Barker Gosling Opponent: Firths, The Compensation Lawyers
LOWER COURT District Court JURISDICTION : LOWER COURT DC 1736/03 FILE NUMBER(S) : LOWER COURT Herron ADCJ JUDICIAL OFFICER :
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40716 of 2003 DC 1736 of 2003
MASON P McCOLL JA
Monday 19 July 2004
Christopher COSTELLO v Mark ARRAGON JUDGMENT
1 MASON P: The Court heard full argument in relation to an application for leave to appeal on the basis that it could address the appeal if leave were granted. 2 The claimant (hereafter "the defendant") and the opponent (hereafter "the plaintiff") were the drivers of motor vehicles involved in an accident on 28 February 1999. The plaintiff sustained injuries, particularly to his back, and he wishes to claim damages under the Motor Accidents Act 1988 (the MA Act). 3 The limitation period expired on 28 February 2002 (cf s52(4)). Since proceedings were not commenced within time the plaintiff required the leave of the court. This could not be granted unless the plaintiff provided a full and satisfactory explanation to the court for the delay (s52(4B)(a)). (There was no issue as to the likely damages exceeding the threshold stipulated in s52(4B)(b).) 4
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