Yu v Speirs

[2001] NSWCA 373

NSW Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Extension of time
3. › Personal injury
4. › Application under s 60C(2) Limitation Act 1969 (NSW)
5. › Whether just and reasonable to extend time
6. › Requirement to show viable cause of action
7. › Level of evidence sufficient to establish viable cause of action
8. › Limitation Act 1969 (NSW), ss 60C(2), 60E, 60G(2)
1. Limitation of Actions
2. › Extension of time
3. › Prejudice to defendant
4. › Whether delay gave rise to substantial prejudice
5. › Actual prejudice
6. › Unavailability of witnesses and missing records
7. › Evidentiary burden on defendant alleging prejudice
1. Practice and Procedure
2. › Costs
3. › Costs of application to extend limitation period
4. › Whether trial judge erred in ordering unsuccessful defendants to pay own costs
5. › Principle that successful applicant should pay costs unless opposition wholly unreasonable
6. › District Court Rules, Pt 39A r 32

Quick Take

On an application to extend the limitation period under s 60C(2) of the Limitation Act 1969 (NSW), the plaintiff must demonstrate a viable cause of action by proving facts from which the Court can be satisfied there is at least a reasonable prospect of sufficient evidence for success at trial. The test is not demanding, but the plaintiff must go beyond merely pleading a cause of action not susceptible to being struck out. A defendant who fails to adduce evidence within its knowledge may find the court more readily drawing inferences against it. Ordinarily, a successful applicant for an extension should pay the defendants' costs unless the opposition was wholly unreasonable.