Sullavan v Teare - [2010] QCA 70

SUPREME COURT OF QUEENSLAND

CITATION:

Sullavan & Anor v Teare [2010] QCA 70

PARTIES:

DARIAN FREDERICK SULLAVAN &
ALEXIS HAWEA SULLAVAN
(plaintiffs/appellants)
v
MARK GEORGE TEARE
(defendant/respondent)

FILE NO/S:

Appeal No 9536 of 2009
DC No 4147 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

26 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2010

JUDGES:

Muir and Chesterman JJA and P Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – TORTS – ACTIONS AGAINST SOLICITORS – where appellants purchased real property based on the negligent advice of the respondent solicitor – where settlement occurred on or about 9 October 1998 – where appellants knew from on or about 15 June 2000 that the property had been overvalued, that the rental payment obligation of the lessee company was not supported by personal guarantees of the directors of the lessee company, that the lessee company had no assets and that there was a risk there would not be an assured income for ten years – where appellants suffered loss and damage as a result of acquiring the property – where appellants commenced proceedings on 10 November 2005 – whether appellants’ action is time-barred

Limitation of Actions Act 1974 (Qld), s 10(1)(a)

Cartledge and Others v E Jopling & Sons Ltd [1963] AC 758, applied
Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358; [2008] VSCA 26, distinguished
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54, followed
Law Society v Sephton & Co [2006] 2 AC 543; [2006] UKHL 22, applied
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3, distinguished
Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1; [1983] 2 WLR 6, applied
Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82, cited
The Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16, applied
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55, distinguished

COUNSEL:

A Bell SC, with A Collins, for the appellants
D S J Jackson QC, with T J Bradley, for the respondent

SOLICITORS:

Slater & Gordon for the appellants
Brian Bartley & Associates for the respondent

[1] MUIR JA: I agree with the reasons of Chesterman JA and with the order he proposes.

[2] CHESTERMAN JA: On 10 November 2005 the appellants as plaintiffs commenced proceedings in the District Court in Brisbane claiming damages for breach of contract and negligence against the respondent. He was a solicitor who had acted for the appellants with…

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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Details

Case: [2010] QCA 70
Decision Date: 26/03/2010

CaseChat Overview and Summary

The case of Sullavan v Teare involved a dispute between the appellants, who were the purchasers of a property, and the respondent, who was their solicitor at the time of purchase. The appellants sought damages for the solicitor's negligent advice that led to the overvaluation of the property and the failure to disclose critical information about the property and the lessee company. The settlement of the property purchase took place on or about 9 October 1998. The appellants discovered the issues with the property on or about 15 June 2000, and they commenced proceedings against the respondent on 10 November 2005. The central issue before the court was whether the appellants' action was time-barred under the Limitation of Actions Act.

The primary legal issue was when the cause of action accrued and when the period of limitation began to run. The appellants argued that the cause of action accrued when they discovered the issues on 15 June 2000, while the respondent contended that the cause of action accrued on the date of settlement, 9 October 1998, and that the six-year limitation period had expired by the time the appellants commenced proceedings. The court had to determine whether the appellants' cause of action was discovered within the relevant limitation period.

The court found that the appellants' cause of action accrued on the date of settlement, 9 October 1998, when the negligent advice was given and the contract was entered into. The court held that the appellants' knowledge of the issues on 15 June 2000 did not restart the limitation period, as the discovery of the issues did not constitute the accrual of a new cause of action. Instead, the discovery was a realisation of the consequences of the pre-existing cause of action. Therefore, the appellants' proceedings, commenced on 10 November 2005, were beyond the six-year limitation period, and the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sullavan & Anor v Teare [2010] QCA 70
PARTIES:	DARIAN FREDERICK SULLAVAN & ALEXIS HAWEA SULLAVAN (plaintiffs/appellants) v MARK GEORGE TEARE (defendant/respondent)
FILE NO/S:	Appeal No 9536 of 2009 DC No 4147 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	26 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	5 March 2010
JUDGES:	Muir and Chesterman JJA and P Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – TORTS – ACTIONS AGAINST SOLICITORS – where appellants purchased real property based on the negligent advice of the respondent solicitor – where settlement occurred on or about 9 October 1998 – where appellants knew from on or about 15 June 2000 that the property had been overvalued, that the rental payment obligation of the lessee company was not supported by personal guarantees of the directors of the lessee company, that the lessee company had no assets and that there was a risk there would not be an assured income for ten years – where appellants suffered loss and damage as a result of acquiring the property – where appellants commenced proceedings on 10 November 2005 – whether appellants’ action is time-barred Limitation of Actions Act 1974 (Qld), s 10(1)(a) Cartledge and Others v E Jopling & Sons Ltd [1963] AC 758, applied Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358; [2008] VSCA 26, distinguished HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54, followed Law Society v Sephton & Co [2006] 2 AC 543; [2006] UKHL 22, applied Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3, distinguished Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1; [1983] 2 WLR 6, applied Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82, cited The Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16, applied Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55, distinguished
COUNSEL:	A Bell SC, with A Collins, for the appellants D S J Jackson QC, with T J Bradley, for the respondent
SOLICITORS:	Slater & Gordon for the appellants Brian Bartley & Associates for the respondent