CITATION: Argyropoulos v Layton & Anor [2002] NSWCA 183 revised - 21/06/2002 FILE NUMBER(S): CA 40646/00 HEARING DATE(S): 15 March 2002 JUDGMENT DATE:
20 June 2002PARTIES :
Vasilios ARGYROPOULOS (Appellant)
Nicholas Guy LAYTON & Steven John BURNS (Respondent)JUDGMENT OF: Handley JA at 1; Hodgson JA at 11; Santow JA at 14
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC 4171/99 LOWER COURT
JUDICIAL OFFICER :Cripps ADJC
COUNSEL: M R Aldridge, SC/ M W Anderson (Appellant)
G M Gregg (Respondent)SOLICITORS: Maxwell Berghouse & Ives (Appellant)
Corrs Chamber Westgarth (Respondent)CATCHWORDS: TORT - professional negligence - respondent failed to commence proceedings in prescribed time and failed to seek leave to commence proceedings out of time - whether more than one cause of action - continuing duty - CONTRACT - breach of duty under retainer - DAMAGES - general principle - discretion to discount award for the possibility that leave to commence out of time may have failed. LEGISLATION CITED: Motor Accidents Act 1988 s52(4) CASES CITED: Bell v Brown [1990] 2 QB 495
Carter v Egg Pulp Marketing Board (1942) 66 CLR 557
Cartledge v Jopling & Sons Ltd [1963] AC 758
Cassis v Kalfus [2001] NSWCA 460
Damberg v Damberg and others (2002) 52 NSWLR 493
Doundoulakis v Antony Sdrinis & Co [1989] VR 781
Dunlop v McGowans 1979 SC 22; 1980 SC(HL) 73
Flower & Hart v White Industries (Qld) Pty Limited [201] 109 FCR 280 (full court)
Harris v Raggatt [1965] VR 779
Hawkins v Clayton (1986) 5 NSWLR 109; (reversed by the High Court (1988) 164 CLR 539)
Hetherington v Mirvac Pty Ltd [1999] NSWSC 443; (1999) Aust Torts Reports 81-514 at 66-022 - 66-023
Howell v Young (1826) 5 B & C 259 [108 ER 97]
Larking v Great Western (Nepean) Gravel Ltd (1940) 64 CLR 221
Letang v Cooper [1965] 1 QB 232
Marshall v London Passenger Transport Board [1936] 3 All ER 83
Patterson v Richards [1963] VR 179
Read v Brown (1888) 22 QBD 128
Republic of India v India Steamship Co Ltd [1993] 410
Sampson v Zucker (NSWSC, CA, 11 December 1996, unreported)
Scarcella v Lettice (2000) 51 NSWLR 302
Scott v Echegaray (1991) Aust Torts Reports 81-120
Sheldon v McBeath (1993) ATPR 81-209
Smith v Wilkins and Davies Construction [1958] NZLR 958
Vulic v Bilinsky [1983] 2 NSWLR 472
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Williams v Milotin (1957) 97 CLR 465
Wilson v Rigg (Sperling J, [2000] NSWSC 16, 7 February 2000, unreported)DECISION: 1. Appeal allowed and orders in court below set aside; 2. Judgment for the Appellant in the sum of $10,251.28 with effect from 24 July 2000; 3. Respondents to pay Appellant's costs of the proceedings in the court below; 4. Respondent to pay Appellant's costs of the appeal and to have a suitor's fund certificate if otherwise entitled.
CA 40646/00
DC 4171/99HANDLEY JA
HODGSON JA
SANTOW JA
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- AGLC
- Argyropoulos v Layton [2002] NSWCA 183
- Case
- [2002] NSWCA 183
- Decision Date
CaseChat Overview and Summary
In *Argyropoulos v Layton*, the appellant, Argyropoulos, sued the respondent, Layton, for professional negligence. The dispute arose from Layton's alleged failure to commence proceedings within the prescribed time and to seek leave to commence proceedings out of time. The matter was heard in the Court of Appeal of New South Wales.
The central legal issues before the court were whether there was more than one cause of action, the nature of the continuing duty owed under the retainer, and the appropriate approach to damages, particularly the discretion to discount an award for the possibility that an application for leave to commence proceedings out of time might have failed.
The Court of Appeal found that the respondent's failure to commence proceedings within the limitation period constituted a breach of duty. The court reasoned that the duty owed by the respondent continued until the expiry of the limitation period, and the failure to act within that time gave rise to a cause of action. In assessing damages, the court considered the general principle of compensation for loss suffered. The court also exercised its discretion to discount the award, acknowledging the uncertainty that leave to commence proceedings out of time might not have been granted.
The appeal was allowed, and the orders of the court below were set aside. Judgment was entered for the appellant in the sum of $10,251.28, with effect from 24 July 2000. The respondents were ordered to pay the appellant's costs of the proceedings in the court below and the costs of the appeal, with a suitor's fund certificate to be provided if otherwise entitled.
The central legal issues before the court were whether there was more than one cause of action, the nature of the continuing duty owed under the retainer, and the appropriate approach to damages, particularly the discretion to discount an award for the possibility that an application for leave to commence proceedings out of time might have failed.
The Court of Appeal found that the respondent's failure to commence proceedings within the limitation period constituted a breach of duty. The court reasoned that the duty owed by the respondent continued until the expiry of the limitation period, and the failure to act within that time gave rise to a cause of action. In assessing damages, the court considered the general principle of compensation for loss suffered. The court also exercised its discretion to discount the award, acknowledging the uncertainty that leave to commence proceedings out of time might not have been granted.
The appeal was allowed, and the orders of the court below were set aside. Judgment was entered for the appellant in the sum of $10,251.28, with effect from 24 July 2000. The respondents were ordered to pay the appellant's costs of the proceedings in the court below and the costs of the appeal, with a suitor's fund certificate to be provided if otherwise entitled.
Orders
Orders of the court
1. Appeal allowed and orders in court below set aside; 2. Judgment for the Appellant in the sum of $10,251.28 with effect from 24 July 2000; 3. Respondents to pay Appellant's costs of the proceedings in the court below; 4. Respondent to pay Appellant's costs of the appeal and to have a suitor's fund certificate if otherwise entitled.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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