Curnuck v Nitschke

The Supreme Court of New South Wales, Court of Appeal, considered a dispute between the appellants, Curnuck and others (the clients), and the respondent, Nitschke (the solicitors). The clients alleged that the solicitors had negligently failed to commence proceedings against a third party within the relevant limitation period, thereby causing them loss. The clients had assigned their cause of action against the third party to another entity, and subsequently reassigned it back to themselves.

The central legal issues before the Court of Appeal were whether the solicitors had breached their contractual and tortious duties to the clients by failing to advise them of the limitation period and to commence proceedings against the third party. The Court also had to consider the effect of the assignment and reassignment of the cause of action on the clients' ability to pursue their claim against the solicitors.

The Court of Appeal found that the solicitors had breached their contractual duty to exercise reasonable care and skill in advising and acting for the clients. This duty extended to advising on the limitation period for a potential claim against a third party and taking steps to preserve that claim. The Court also held that the solicitors had breached their duty of care in tort. The assignment and reassignment of the cause of action were held not to extinguish the clients' right to sue the solicitors for the loss caused by the solicitors' negligence.

The Court of Appeal allowed the appeal, setting aside the judgment below. It declared that the solicitors had breached their contractual and tortious duties to the clients. The matter was remitted to the District Court for a different judge to determine whether these breaches caused the clients any loss, with the costs of the District Court proceedings to be reserved for that judge.