Lyu v Jeon [2012] NSWCA 446

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lyu v Jeon [2012] NSWCA 446 Hearing dates: 24 August 2012 Decision date: 21 December 2012 Before: Macfarlan JA at [1]; Meagher JA at [2]; Davies J at [41]. Decision: (1) Grant the applicant leave to appeal. (2) Appeal allowed. (3) Set aside orders 1, 2 and 3 made by the District Court on 30 August 2011. (4) Respondent to pay the applicant's costs of the application for leave to appeal and of the appeal. [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: MOTOR ACCIDENT COMPENSATION - leave to commence proceedings outside three year period - respondent delayed over two years in notifying motor accident claim - whether primary judge erred in finding that respondent had provided a "satisfactory explanation" for delay - respondent made a false claim under student health insurance and driver, a friend, agreed to pay balance of outstanding expenses - driver did not honour agreement and respondent notified a claim - reasonable person in respondent's position would not have acted as she did and delayed notifying claim - primary judge erred in concluding otherwise - Motor Accidents Compensation Act 1999, s 109(3)(a). Legislation Cited: Motor Accidents Compensation Act 1999 Motor Accident Act 1988 Cases Cited: Buller v Black [2003] NSWCA 45; 56 NSWLR 425 Diaz v Truong [2002] NSWCA 265; 37 MVR 158 House v The King [1936] HCA 40; 55 CLR 499 Russo v Aiello [2003] HCA 53; 215 CLR 643 Smith v Grant [2006] NSWCA 244; 67 NSWLR 735 Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 Young Lim Jeon v Sul (Jolie) Lyu [2011] NSWDC 145 Category: Principal judgment Parties: Sul (Jolie) Lyu (First Appellant) Australian Associated Motor Insurers Limited (Second Appellant) Young Lim Jeon (Respondent) Representation: Counsel: R R Bartlett SC A J Black SC Solicitors: CKB Partners Stacks Goudkamp, Newcastle File Number(s): 2011/380767 Decision under appeal Citation: Young Lim Jeon v Sul (Jolie) Lyu [2011] NSWDC 145 Date of Decision: 2011-08-30 00:00:00 Before: Sidis DCJ File Number(s): 2011/220079