Brian v Burders Lane Enterprises Proprietary Limited [2011] NSWDC 27

District Court New South Wales

Medium Neutral Citation: Brian v Burders Lane Enterprises Proprietary Limited [2011] NSWDC 27 Hearing dates: 4 March 2011 Decision date: 04 March 2011 Jurisdiction: Civil Before: Neilson DCJ Decision: 1) Statement of claim is dismissed; 2) I order the Plaintiff to pay the Defendant's costs of the proceedings; 3) Liberty to apply if Defendant seeks indemnity costs. Catchwords: TORTS - negligence - liability of a company for acts / omissions of an earlier company whose business was carried on after its cessation of trade and dissolution by the company alleged to be liable - novel cause of action - whether a reasonable cause of action disclosed; LIMITATION OF ACTIONS - Limitation Act 1969 s 50C - when did Plaintiff have knowledge of the "fault" of the Defendant - accident occurred 20 May 2005 - Plaintiff had all relevant knowledge by 18 January 2007 - limitation period expired on 18 January 2010 - proceedings not commenced until 26 May 2010 - question of existence of insurance and identity of insurer irrelevant - statement of claim dismissed as field outside limitation period Legislation Cited: Civil Liability Act 2007, s 513 Limitation Act 1969, s 50C Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 Country Waste Systems Pty Ltd v Lauren Jane Wright [2007] NSWDC 287 CSR Ltd v Wren (1997) 44 NSWLR 463 J & V Pesl v Ray Smith Tractors & Anor [2007] NSWCA 74 James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 McPherson's Ltd v Eaton & Ors [2005] NSWCA 435 Mutual Life & Citizens' Assurance Co Ltd v Evatt [1968] 122 CLR 556 Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 Wyong Shire Council v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: Daniel Keith Brian (Plaintiff) Burders Lane Enterprises (Defendant) Representation: Mr S. Kettle (Plaintiff) Mr T. Anderson (Defendant) Stacks/Goudkamp (Plaintiff) Harris Lieberman (Defendant) File Number(s): 2010/130952