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New South Wales |
Case Name: | Dougall v Melville |
Medium Neutral Citation: | [2017] NSWCA 309 |
Hearing Date(s): | 6 February 2017 |
Decision Date: | 5 December 2017 |
Before: | McColl JA at [1], |
Decision: | (1) Grant leave to appeal. |
Catchwords: | LIMITATION OF ACTIONS – professional negligence and misrepresentation claim – application for summary dismissal pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4 – whether claims barred by 6 year limitation period pursuant to Limitation Act 1969 (NSW), s 14, s 63 and Fair Trading Act 1987 (NSW), s 68(2) – accrual of causes of action – when measurable damage suffered by respondent |
Legislation Cited: | District Court Act 1973 (NSW) |
Cases Cited: | Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 |
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- AGLC
- Dougall v Melville [2017] NSWCA 309
- Case
- [2017] NSWCA 309
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the respondent's causes of action had accrued within the relevant limitation periods, and specifically, when measurable damage had been suffered by the respondent. This involved considering the principles governing the accrual of causes of action in cases of professional negligence and misrepresentation, and whether any statutory contingencies needed to be satisfied for the limitation period to commence.
The Court of Appeal determined that the primary judge had erred in not dismissing the proceedings. Applying the principles regarding the accrual of causes of action, particularly the requirement for measurable damage to have been suffered, the Court found that the respondent's claims were indeed out of time. The Court noted that the appellants had succeeded on grounds not fully advanced before the primary judge.
Consequently, the Court of Appeal granted leave to appeal, set aside the orders of the primary judge, and ordered that the proceedings be dismissed pursuant to rule 13.4 of the *Uniform Civil Procedure Rules 2005* (NSW). The respondent was ordered to pay the defendants' costs of the proceedings below. The Court also ordered that the respondent pay fifty per cent of the appellants' costs of the appeal, with the appellants bearing the balance of their own costs for those proceedings.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Appellants to file a notice of appeal in the form set out in the White Book within seven days.
(3) Orders 1 – 5 of the orders made by the primary judge on 14 June 2016, set aside.
(4) In their place, order that:
(a) pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4, the proceedings be dismissed.
(b) the plaintiff pay the defendants’ costs.
(5) The respondent to pay fifty per cent of the appellants’ costs of the appeal (including the application for leave to appeal), with a view to the appellants bearing the balance of their costs of those matters.
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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