Cassis v Kalfus

[2001] NSWCA 460

CITATION:	Cassis & Anor. v. Kalfus [2001] NSWCA 460
FILE NUMBER(S):	CA 40343/01
HEARING DATE(S):	20 and 21 November 2001
JUDGMENT DATE:	11 December 2001
PARTIES :	Sami Alfred Cassis and Gisele Cassis - appellants Marcel Isadore Kalfus - respondent
JUDGMENT OF:	Powell JA at 1; Heydon JA at 9; Hodgson JA at 10

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	CLD 20589/96
LOWER COURT JUDICIAL OFFICER :	Dowd J

COUNSEL:	Mr. P. Roberts SC with Mr. M. Minehan (A) Mr. G. Lindsay SC with Mr. A. Ridley (R)
SOLICITORS:	LMG Solicitors, Darlinghurst for appellants Mallesons Stephen Jaques, Sydney for respondent
CATCHWORDS:	COURTS AND JUDGES - Judgments - Duty to give reasons - Delay in giving judgment - Application during trial to raise limitation defence - Not decided until over 12 months after judgment reserved - Primary judge then calls for further submissions - Whether trial miscarried - LIMITATION OF ACTIONS - Tort - When damage suffered - Whether loss of secure employment was itself damage, when no loss of income occurred for four years. D.
LEGISLATION CITED:	Limitation Act 1969 (NSW) ss.23, 55, 60G.
CASES CITED:	Knox v. Gye (1871-1872) LR 5 HL 671-674 Cohen v. Cohen (1929) 42 CLR 91, 99-101 Forster v. Outred [1982] 1 WLR 86 Wardley Australia Ltd. v. Western Australia (1992) 175 CLR 514 Sellars v. Adelaide Petroleum (1994) 179 CLR 332 Brunsden v. Humphrey (1884) 14 QBD 141 Marlborough Harbour Board v. Chartered Travel Co. Ltd. (1989) 18 NSWLR 223 Avenhouse v. Hornsby Shire Council (1988) 44 NSWLR 1 Williams v. Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 Hawkins v. Clayton (1988) 164 CLR 539 at 589
DECISION:	See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40343/01
CLD 20589/96

POWELL JA
HEYDON JA
HODGSON JA

CASSIS & ANOR. V. KALFUS

Headnote

The circumstances

In February 1989 the first appellant and the respondent solicitor entered into a joint venture to run IGC, a company established by them, and to share the profits of both IGC and the respondent’s legal practice. IGC was viable in the first three years but began to decline in early 1993, and ultimately collapsed.

The first appellant claimed that, in negotiations preceding entry into the joint venture, the respondent had misrepresented the true value of his practice, and that in drawing up the joint venture agreement the respondent had failed to properly document certain terms.

On entering the joint venture, the first appellant ceased working as the managing director of his former employer’s company, and in mid-1989, he mortgaged his house (the “Leeton Avenue property”) to provide security for debts of the joint venture business. In 1993, this mortgage was refinanced and new mortgages were given over the property.

During the course of the joint venture, the respondent acted as the appellants’ solicitor. In about mid-1989, the appellants requested the respondent to arrange for the transfer of the Leeton Avenue property from the first…