Ayres v Ollerenshaw [2014] NSWCA 320

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ayres v Ollerenshaw [2014] NSWCA 320 Hearing dates: 7 August 2014 Decision date: 11 September 2014 Before: Barrett JA at [1]; Gleeson JA at [88]; Leeming JA at [95] Decision: 1. Grant leave to appeal. 2. Direct that a notice of appeal in the form in the white folder be filed within seven days. 3. Appeal allowed. 4. Set aside the orders made in the District Court on 24 October 2013. 5. In lieu thereof, make the following orders: (a) Order the plaintiff's application for an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA) be refused. (b) Order that the plaintiff pay the defendant's costs of that application. 6. The respondent to pay the applicants' costs in this Court. [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 - contracts, torts and personal actions - the period of limitation - extension thereof - Limitation of Actions Act 1936 (SA) - negligence action against occupiers of property in South Australia for injury allegedly sustained through hidden hazard on the property - action commenced in New South Wales after expiry of limitation period prescribed by South Australian Act - primary judge made an order extending the period - question under that Act as to whether the proceedings were commenced within twelve months after the plaintiff became aware of facts material to his case - the facts relied upon went to diagnosis of depression and extent of injury to ankles and knees - review of primary judge's findings as to the time at which relevant facts were ascertained and their materiality to the negligence claim. Legislation Cited: District Court Act 1973 (NSW) Limitation of Actions Act 1936 (SA) Cases Cited: Ireland v Wightman [2013] SASC 139 Ireland v Wightman [2014] SASCFC 52 Warren v Coombes [1979] HCA 9; 142 CLR 531 Category: Principal judgment Parties: Graham Richard Ayres (First Applicant) Wendy Dawn Ayres (Second Applicant) Damian James Ollerenshaw (Respondent) Representation: Counsel: P M Morris SC/O J Dinkha (Applicants) R S Sheldon SC/M A Campbell (Respondent) Solicitors: Curwoods Lawyers (Applicants) Brydens Compensation Lawyers (Respondent) File Number(s): CA 2013/343881 Decision under appeal Date of Decision: 2013-10-24 00:00:00 Before: Gibson DCJ File Number(s): 2010/100901