PARTIES: Peter J Scarcella v Frederick Michael Lettice and Evelyne Marie Lettice
JUDGMENT OF: Handley JA Powell JA Giles JA
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S): 20667/94
LOWER COURT JUDICIAL OFFICER: Ireland J
COUNSEL: S D Rares SC/M Dempsey (Appellant) P H Greenwood SC/T J Boyd (Respondent)
SOLICITORS: Mallesons Stephen Jaques (Appellant) Caldwell Martin & Cox (Respondent)
CATCHWORDS: NEGLIGENCE - professional negligence - solicitor failed to discover defect in title - respondents relied on negligent advice in purchasing property LIMITATION OF ACTIONS - whether cause of action in tort complete when damage suffered at time of purchase or upon discovery of defect in title - defect in title would have been revealed by normal conveyancing procedures - time ran from completion of purchase - not from discovery of loss - Limitation Act 1969 (NSW)
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
40685/98 CLD 20667/94
HANDLEY JA
POWELL JA
GILES JA
1 November 2000
PETER J SCARCELLA v FREDERICK MICHAEL LETTICE & ANOR
NEGLIGENCE - professional negligence - solicitor failed to discover defect in title - respondents relied on negligent advice in purchasing property
LIMITATION OF ACTIONS - whether cause of action in tort complete when damage suffered at time of purchase or upon discovery of defect in title - defect in title would have been revealed by normal conveyancing procedures - time ran from completion of purchase - not from discovery of loss - Limitation Act 1969 (NSW)
The appellant solicitor acted for the respondents on a property purchase in 1982. The rear of the subject property, which was used for depasturing livestock, was accessible by foot but vehicle access was only possible via a roadway described by the real estate agent as a “right-of-way” passing through two adjacent lots. The respondents discovered in 1994 that they did not have a right-of-way over one of the adjacent lots. In September 1994 the respondents sued the appellant for professional negligence. The appellant pleaded the Limitation Act 1969. The trial Judge found that the appellant’s employed solicitor had been negligent in failing to obtain all the searches required to establish whether the plaintiffs would obtain legal access to the rear of the property from a public road. His Honour also rejected the appellant’s limitation defence on the basis that the respondents first suffered actual damage in 1994 when they discovered they did not have a right-of-way. The appellant appealed. HELD (allowing the appeal): The trial Judge erred in finding that the respondents’ cause of action was not statute-barred. (1) Time commences to run under the Limitation Act when damage accrues even if the plaintiff is not aware of it. Cartledge v E Jopling & Sons Ltd [1963] AC 758, Hawkins v Clayton
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.
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AGLC
Scarcella v Lettice [2000] NSWCA 289
Case
[2000] NSWCA 289
Decision Date
CaseChat Overview and Summary
The Supreme Court of New South Wales considered a claim of professional negligence brought by the respondents, Mr. and Mrs. Lettice, against the appellant, Mr. Scarcella, a solicitor. The Lettices alleged that Mr. Scarcella was negligent in his handling of their purchase of a property, specifically by failing to discover a defect in the title. They contended that they relied on Mr. Scarcella's advice and that this reliance led to their loss.
The central legal issues before the Court were whether Mr. Scarcella's conduct amounted to professional negligence and, crucially, when the cause of action for negligence was complete for the purposes of the Limitation Act 1969 (NSW). The respondents argued that the cause of action accrued upon their discovery of the loss, while the appellant contended it accrued at the time of the purchase, when the damage was suffered, even if not yet discovered.
The Court determined that the defect in title would have been revealed by normal conveyancing procedures, which Mr. Scarcella was engaged to perform. Applying established principles of tortious negligence, the Court held that the cause of action was complete when the damage was suffered, which in this instance was at the time of the completion of the purchase, not when the respondents later discovered the loss. Therefore, the respondents' claim was out of time under the Limitation Act 1969 (NSW).
The Court allowed the appeal with costs and made consequential orders.