CITATION: WALMSLEY v COSENTINO [2001] NSWCA 403 FILE NUMBER(S): CA 40715/00 HEARING DATE(S): 16 August 2001 JUDGMENT DATE:
21 November 2001PARTIES :
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 642DECISION: 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…
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- AGLC
- Walmsley v Cosentino [2001] NSWCA 403
- Case
- [2001] NSWCA 403
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether Mr Walmsley's proceedings against his former solicitors were statute-barred. This required the court to consider the application of limitation periods to claims of professional negligence, particularly in circumstances where the client was not advised of the relevant time limits by their original legal advisors. The court had to determine when the cause of action accrued and whether the subsequent advice, or lack thereof, impacted the running of the limitation period.
The Court of Appeal, comprising Priestley, Powell and Beazley JJA, dismissed the appeal. The court's reasoning, though not detailed in the provided text, would have involved an analysis of the accrual of the cause of action for professional negligence and the application of the relevant limitation legislation to the facts. It is likely the court found that the limitation period for the claim against the solicitors had expired before proceedings were commenced, and that the solicitors' conduct did not prevent the limitation period from running or create a new cause of action that was not statute-barred. The final orders of the court were that the appeal be dismissed.
Orders
Orders of the court
Appeal dismissed
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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