Cheney v Duncan

Cheney v Duncan concerned an appeal to the New South Wales Court of Appeal from a decision of a Master. The appellant, a solicitor, sought to set aside a default judgment entered against him in favour of the respondent, his former client. The respondent's claim arose from losses allegedly suffered by the respondent due to the appellant's negligence in failing to commence an action within the relevant limitation period.

The primary legal issue before the Court of Appeal was when the limitation period for the respondent's claim against the appellant began to run. Specifically, the Court had to determine whether the respondent's cause of action accrued at the time of the alleged negligence (the failure to commence the original action) or at the time the respondent suffered actual loss as a result of that negligence, which occurred when the original claim became statute-barred. This involved considering the application of the exception to the general rule regarding the accrual of causes of action in negligence, as articulated by Deane J in *Hawkins v Clayton*.

The Court of Appeal upheld the appeal, finding that the respondent's cause of action accrued at the time of the appellant's negligence, not when the original claim became statute-barred. The Court reasoned that the respondent suffered damage at the moment the appellant failed to commence the original action within the limitation period, thereby depriving the respondent of a valuable chose in action. The subsequent loss was merely a quantification of that initial damage. Accordingly, the Court concluded that the respondent's claim against the appellant was out of time.

The Court ordered that the appeal be upheld, that summary judgment be entered in favour of the appellant, and that the respondent's claim against the appellant be dismissed with costs. The respondent was also to have a certificate under the Suitor's Fund Act, if so entitled.