Walmsley v Cosentino

[2001] NSWCA 403

CITATION:	WALMSLEY v COSENTINO [2001] NSWCA 403
FILE NUMBER(S):	CA 40715/00
HEARING DATE(S):	16 August 2001
JUDGMENT DATE:	21 November 2001
PARTIES :	Adrian Richard Walmsley (Appellant) Antonio Cosentino (Respondent)
JUDGMENT OF:	Priestley JA at 1; Powell JA at 2; Beazley JA at 61

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7955/94
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL:	D L Davies SC (Appellant) M J Joseph SC & M J Ward (Respondent)
SOLICITORS:	Mallesons Stephen Jaques (Appellant) Ward Maxwell & Co (Respondent)
CATCHWORDS:	PROFESSIONAL NEGLIGENCE - Contract - Tort - Limitation period - Solicitor - Instructed to act to recover damages arising out of motor vehicle accident - Failure to advise of limitation period - Failure to commence proceedings within limitation period - Defence pleading limitation period filed when proceedings commenced - Client not advised until amost 5 1/2 years after limitation period expired - Client then advised to seek advice from another solicitor but not advised of limitation period for proceedings against solicitor - Proceedings against solicitor not commenced until amost 3 years later - Defence pleading limitation period filed - Whether proceedings statute-barred D
CASES CITED:	Astley v. Austrust Liimited (1998-1999) 197 CLR 1 Avenhouse v. Hornsby Shire Council (1998) 44 NSWLR 1 Baltic Shipping Co. v. Dillon (1993) 176 CLR 344 Cheny & Wilson v. Duncan [2001] NSWCA 197 Curnick v. Nitschke [2001] NSWCA 176 Doundoulakis v. Antony Sdrinis & Co [1989] VR 781 Farley v. Skinner [2001] 3 WLR 899 Hawkins v. Clayton (1987-1988) 164 CLR 539 Heywood v. Wellers [1976] QB 446 Hill v. Van Erp (1996-1997) 188 CLR 159 Registrar-General v. Cleaver (1996) 41 NSWLR 713 Sampson v. Zucker Court of Appeal 11 December 1996 unreported Scarcella v. Lettice [2000] NSWCA 289 Seymour v. Seymour (1996) 40 NSWLR 358 Waimond Pty. Ltd. v. Byrne (1989) 18 NSWLR 642
DECISION:	Appeal dismissed

CA 40715/00
PRIESTLEY JA
POWELL JA
BEAZLEY JA


21 November 2001

ADRIAN RICHARD WALMSLEY v ANTONIO COSENTINO

Judgment

1 PRIESTLEY JA: I agree with Powell JA.

2 POWELL JA: This is an appeal from a judgment delivered by Garling DCJ on 30 August 2000, on which day his Honour found a verdict in favour of the Respondent against the Appellant in the sum of $474,478 in proceedings which the Respondent had brought to recover from the Appellant damages in respect of what was claimed to be the Appellant’s “professional negligence”.

3 The origin of the proceedings was the injuries which the Respondent sustained in a motor vehicle accident in which he was involved on 13 August 1980. On that day the Respondent, who was then just 25 years of age and who was then a self-employed contract tiler by occupation, was driving his utility in a southerly direction along the Princes Highway near Lacey Street, Kogarah when a Mrs Upton, who had been driving her motor vehicle in a northerly direction along Princes Highway, commenced to make a right hand turn from Princes Highway into…