Fleming v Segal - [2002] NSWSC 42

CITATION: Fleming v Segal [2002] NSWSC 42

CURRENT JURISDICTION: Common Law Division
Professional Negligence List

FILE NUMBER(S): SC 20237/00

HEARING DATE(S): 24/09/01

JUDGMENT DATE: 14 February 2002

PARTIES :

Brian William Fleming v Alan Lewis Segal

JUDGMENT OF: Howie J at 1

COUNSEL : T. Lynch - Plaintiff
D. Davis SC - Defendant

SOLICITORS: Hunt & Hunt, Lawyers - Plaintiff
Ebsworth & Ebsworth, Lawyers - Defendant

CATCHWORDS: Limitation of Actions - Application of statute - When time begins to run - Tort - Professional negligence - Solicitor - Failure to discover defect in title - Rectification of contract for sale - Damage accrued when rectification no longer available.

LEGISLATION CITED: Limitation Act 1969 - s 14
Real Property Act 1900 - s 127(1)

CASES CITED: Smouha v Fleming (NSWSC, Hodgson J, 20 May 1997)
Fleming v Segal [2001] NSWSC 754
Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514
Scarcella v Lettice (2000) 51 NSWLR 302
Cartledge v E. Jopling & Sons Limited [1963] AC 758
Hawkinsv Clayton (1988) 164 CLR 539
Registrar-General v Cleaver (1996) 41 NSWLR 713
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
Doundoulakis v Antony Sdrinis & Co. [1989] VR 781
Cheney v Duncan [2001] NSWCA 197
Christopoulos v Angelos (1996) 41 NSWLR 700
Australian Gypsum Ltd and Plaster Co. Ltd v Hume Steel Ltd (1930) 45 CLR 54
Commision for the New Towns v Cooper [1995] Ch 259
Bush v National Bank Ltd (1992) 35 NSWLR 390
Mackenzie v Coulson (1869) LR 8 Eq 368

DECISION: The defence based upon the Act fails and is dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

20237/00

HOWIE J
THURSDAY 14 FEBRUARY 2002

BRIAN WILLIAM FLEMING v ALAN LEWIS SEGAL
JUDGMENT

: The plaintiff has commenced proceedings against the defendant, a solicitor who acted for him on the sale of a block of land in suburban Sydney. The defendant was also instructed, in conjunction with that sale, to attend to the removal of any right of carriageway that existed over an adjoining block of land, also owned by the plaintiff and which was to be retained by him, and that benefited the block of land that was to be sold. However, the defendant failed to remove all rights of way then in existence over that block. The property retained by the plaintiff remained burdened by a right of way in favour of the property sold; see Smouha v Fleming (NSWSC, Hodgson J, 20 May 1997).

2 The plaintiff maintains that the defendant was both in breach of the agreement arising from his retainer and negligent in failing to take such action as was necessary to bring about the extinguishment of the right of way. The plaintiff alleges that he suffered economic loss as a result of the defendant’s failure to carry out his instructions and seeks damages accordingly.

3 The defendant denies that he was negligent or in breach of contract in failing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fleming v Segal

Details

AGLC: Fleming v Segal [2002] NSWSC 42
Case: [2002] NSWSC 42
Decision Date: 14 February 2002

CaseChat Overview and Summary

The case of Fleming v Segal involved a dispute between the plaintiff, Fleming, and the defendant, Segal, who was Fleming's former solicitor. The central issue was whether Segal's professional negligence in failing to discover a defect in the title to a property constituted a tort for which the statutory limitation period had been exceeded. The matter was heard in the Supreme Court of Victoria. The court was required to determine when the limitation period for a claim in tort began to run and whether the relevant limitation period had expired.

The primary legal issue before the court was the point at which the statutory limitation period for a claim in tort began to run, particularly in the context of professional negligence by a solicitor. The court needed to assess whether the limitation period started when the solicitor negligently failed to discover the defect in the property's title or when the defect was finally rectified and damages became ascertainable. Segal argued that the limitation period began when the initial negligence occurred, while Fleming contended that it started when the defect was rectified and damages were quantified.

The court found that the limitation period for a claim in tort began to run when the damage became ascertainable, which in this case was when the rectification of the contract for the sale of the property was completed. The court held that the defect in title was not a cause of damage until the rectification of the contract, at which point the damages were ascertainable. Given that the rectification occurred more than six years before the proceedings were initiated, the court concluded that the limitation period had expired. Therefore, Segal's liability for professional negligence was time-barred.

Orders