Booth v AE & EM Kiel Pty Ltd [2012] NSWDC 71

District Court New South Wales

Medium Neutral Citation: Booth v AE & EM Kiel Pty Ltd [2012] NSWDC 71 Hearing dates: 17 May 2012 Decision date: 21 May 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The notice of motion filed by the defendant on 6 November 2011 seeking dismissal of the plaintiff's statement of claim pursuant to UCPR Pt 13 r 13.4(b), is dismissed; 2.Paragraph 8 of the defence filed on 8 February 2011 pleading a limitation bar, is struck out; 3.The defendant is to pay the plaintiff's costs of the dismissed motion; 4.Exhibit "A" may be returned; 5.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIMITATION OF ACTIONS - whether statement of claim should be struck out as disclosing no reasonable cause of action - timing of discoverability of damage of sufficient severity to justify plaintiff commencing proceedings - whether defence pleading limitation bar should be dismissed Legislation Cited: Civil Liability Act 2002, s 16 Limitation Act 1969, s 50C, s 50D Uniform Civil Procedure Rules 2005, r 13.4(b) Cases Cited: Baker Morrison v State of NSW [2012] NSWCA 35 State of NSW v Gillett [2012] NSWCA 83 Category: Procedural and other rulings Parties: Garnett Hume McLeod Booth (Plaintiff/Respondent) AE & EM Kiel Pty Ltd (Defendant/Applicant) Representation: Ms K Balendra (Plaintiff/Respondent) Mr G Niven (Defendant/Applicant) Cater & Blumer (Plaintiff/Respondent) Mills Oakley Lawyers (Defendant/Applicant) File Number(s): 2010/412490 Publication restriction: None