Radosavljevic v Radin

Case [2003] NSWCA 217


CITATION: RADOSAVLJEVIC v RADIN & ORS [2003] NSWCA 217
HEARING DATE(S): 10 June 2003
JUDGMENT DATE:
13 August 2003
JUDGMENT OF: Mason P at 1; Handley JA at 104; McColl JA at 105
DECISION: Appeal dismissed with costs. Cross appeal struck out as incompetent, with costs. Application for leave to cross appeal refused with costs.
CATCHWORDS: Negligence - breach of duty - professional negligence - solicitors - failure to bring proper proceedings within limitation period - Causation - whether solicitor's negligence materially contributed to loss - whether plaintiff had viable claim independent of solicitor's negligence - Damages - whether award "manifestly inadequate" - whether real loss suffered, actual or contingent (ND)

PARTIES :

Milan RADOSAVLJEVIC Executor of the Estate of the late Mileva Radosavljevic v Michael RADIN & ORS

FILE NUMBER(S): CA 40734/02
COUNSEL: Appellant: M R Aldridge SC/ P N Khanshar
Respondents 1-3: J B Simpkins SC/ E M Frizell
SOLICITORS: Appellant: Maxwell Berghouse & Ives
Respondent 1: Henry Davis York
Respondent 2: Yeldham and Associates
Respondent 3: Phillips Fox
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 1341/00
LOWER COURT
JUDICIAL OFFICER :
Price DCJ


                          CA 40734/02
                          DC 1341/00

                          MASON P
                          HANDLEY JA
                          McCOLL JA

                          Wednesday 13 August 2003
Milan RADOSAVLJEVIC (Executor of the Estate of the late Mileva Radosavljevic) v Michael RADIN & ORS

FACTS

:


The appellant, as executor and widower of the deceased, brought actions in negligence against three solicitors in relation to their handling of the deceased’s personal injury and workplace accident claims.

The first defendant, Radin, was sued for failing to bring a proper claim for a fall suffered by the deceased at Ashfield Mall within the six-year limitation period. However, this professional negligence claim against Radin was itself statute-barred as it was brought more than six years after the extinguishment of the Ashfield Mall claim.

The second defendant, Gorman, who was retained by the deceased in place of Radin to prosecute the Ashfield Mall and work accident proceedings, was sued for not having realised in time to reach a settlement without sustaining a costs order, that the Ashfield claim had wrongly identified K-Mart as the defendant. The appellant therefore claimed against Gorman the $10,000 that the deceased was ordered to pay under the Terms of Settlement to K-Mart. The appellant also claimed against Gorman the value of the proceedings that should have been brought against Radin. This depended on demonstrating that a properly directed claim for the fall at Ashfield Mall would have been viable had it not been for Radin’s failure to bring it in time.

The third defendant, Crumpton, who was the appellant’s own solicitor, was sued for failing to advise the appellant to sue Radin for his negligence in allowing the Ashfield fall claim to become statute-barred.

ISSUES:

The trial judge rejected the submission that Gorman’s delay materially contributed to the $10,000 costs liability to K-Mart. The appellant challenges the rejection of this part of his damages claim.

However, the trial judge did award $13,328 in damages against…

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AGLC
Radosavljevic v Radin [2003] NSWCA 217
Case
[2003] NSWCA 217
Decision Date

CaseChat Overview and Summary

The appeal concerned allegations of professional negligence against a solicitor, Mr Radin, brought by his former client, Ms Radosavljevic. Ms Radosavljevic alleged that Mr Radin's failure to commence proceedings within the relevant limitation period had caused her to lose a viable claim against a third party. The matter came before the New South Wales Court of Appeal.

The primary legal issues before the Court of Appeal were whether Mr Radin had breached his duty of care to Ms Radosavljevic, and if so, whether that breach had caused Ms Radosavljevic to suffer a loss. Specifically, the Court had to determine if Ms Radosavljevic possessed a viable claim against the third party that was lost due to Mr Radin's alleged negligence, and whether any damages awarded would be "manifestly inadequate" or if a real loss, actual or contingent, had been suffered.

The Court of Appeal found that Ms Radosavljevic had not established that she had a viable claim against the third party independent of Mr Radin's alleged negligence. Consequently, it was held that Mr Radin's actions, even if negligent, had not caused Ms Radosavljevic to suffer any material loss. The Court therefore dismissed the appeal. The cross-appeal was struck out as incompetent, and the application for leave to cross-appeal was refused, with costs awarded in each instance.

Orders

Orders of the court

Appeal dismissed with costs. Cross appeal struck out as incompetent, with costs. Application for leave to cross appeal refused with costs.

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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