Curnuck v Nitschke

[2001] NSWCA 176

CITATION:	Curnuck v Nitschke [2001] NSWCA 176
FILE NUMBER(S):	CA 40387/00
HEARING DATE(S):	8 June 2001
JUDGMENT DATE:	26 June 2001
PARTIES :	Milton Robert Curnuck (App) Alan Harold Curnuck (App) Ivan John Curnuck (App) Galva Dennis Nitschke (Resp) John Hayden Williams (Resp) Trevor John Forbes (Resp) Bruce Jarrat (Resp) t/as Sheekey Williams & Nitschke
JUDGMENT OF:	Meagher JA at 1; Davies AJA at 2; Fitzgerald AJA at 15

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	1479/99
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	A. McInnes QC (App) M. Stubbs (App) D. Davies QC (Resp) D. Roberts (Resp)
SOLICITORS:	Phillip Parbury & Associates (App) McLachlan Chilton (Resp)
CATCHWORDS:	Professional negligence - contract - tort - limitation period - instructions to advise and sue third party - assignment and reassignment of cause of action against third party - omission to commence action against third party or to advise of limitation period - breach of contract and tort.
LEGISLATION CITED:	Bankruptcy Act 1966 Limitation Act 1969 Trade Practices Act 1974
CASES CITED:	Astley v Austrust Ltd (1999) 197 CLR 1 Central Trust Co v Rafuse (1986) 31 DLR (4th) 481 Chappel v Hart (1998) 72 ALJR 1344 Hawkins v Clayton (1988) 164 CLR 539 Heydon v NRMA (2000) 36 ACSR 462 Hill v Van Erp (1997) 188 CLR 159 Perre v Apand Pty Ltd (1999) 73 ALJR 1190 Rogers v Whitaker (1992) 175 CLR 479 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642
DECISION:	Appeal allowed with costs. Judgment below set aside. Declare that the solicitors breached their contractual duty and their duty under the law of tort to the clients. Remit to the District Court for a different judge to determine whether the solicitor's breach caused the clients any loss. The costs of the District Court proceedings be reserved to the judge who determines the issue of damages.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40387/00

MEAGHER JA
DAVIES AJA
FITZGERALD AJA

Curnuck v Nitschke

1   Meagher JA: I agree both with Fitzgerald AJA and with Davies AJA. In my opinion the orders suggested by Fitzgerald AJA should be made.

2   DAVIES AJA: In Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, in which the principal judgment was given by Lord Goff, with whom Lord Keith, Lord Browne-Wilkinson, Lord Mustill and Lord Nolan agreed, it was held that duties of care arising under both contract and tort may be owed concurrently and may be sued concurrently. At p 191, Lord Goff cited Le Dain J in Central Trust Co v Rafuse (1986) 31 DLR (4th) 481, where his Honour said, at p 522:-

" A concurrent or alternative liability in tort will not be admitted if its effect would be to permit the plaintiff to circumvent or escape a contractual exclusion or limitation of liability for the act or omission that would constitute the tort. Subject to this qualification, where concurrent liability in tort and contract exists the…