Tomasetti v Brailey [2010] NSWSC 890

Tomasetti v Brailey [2010] NSWSC 890

The notices of motion were dismissed because this was not an appropriate case for summary disposition: the limitation issues were not shown to be among the clearest cases and their retention caused no prejudice where the negligence claim would require the same preparation; the evidence disclosed a triable issue as to whether the first, second and third defendants were engaged in a wider overarching partnership liable to the plaintiffs; and the alleged admission concerning discontinuance against the second defendant was informal, promptly withdrawn, non-prejudicial and insufficient to justify discretionary judgment under UCPR 17.7. Leave to amend was granted because the defendants accepted...

Jurisdiction
Australia
Judgment Date
10 August 2010
Procedural Posture
Professional Negligence Claim Against Accountants Alleging Negligent Advice and Breach of Retainer / Interlocutory Applications for Summary Dismissal, Judgment on Admissions, and Leave to File and Serve a Second Amended Statement of Claim
Outcome
Defendants' interlocutory applications dismissed; plaintiffs granted leave to file and serve a second amended statement of claim.
Legal Topics
['accountants' 'summary Dismissal' 'statute of Limitations' 'admissions' 'triable Issues' 'leave to Amend']
['professional Negligence' 'civil Procedure' 'partnership' 'limitation of Actions'] ['accountants' 'summary Dismissal' 'statute of Limitations' 'admissions' 'triable Issues' 'leave to Amend']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Professional Negligence Claim Against Accountants Alleging Negligent Advice and Breach of Retainer / Interlocutory Applications for Summary Dismissal, Judgment on Admissions, and Leave to File and Serve a Second Amended Statement of Claim

Legal Issues

  1. 1 ['Whether contractual claims accruing on or before 15 June 2003 should be summarily dismissed as statute barred under UCP Rules r 13.4.' 'Whether the proceedings against the second and third defendants should be summarily dismissed because they were not liable for wealth management or financial planning advice.' "Whether judgment should be given for the second defendant on the basis of an alleged admission by the plaintiffs' solicitors under UCP Rules r 17.7." 'Whether the plaintiffs should have leave to file and serve a second amended statement of claim.']

Ratio Decidendi

The notices of motion were dismissed because this was not an appropriate case for summary disposition: the limitation issues were not shown to be among the clearest cases and their retention caused no prejudice where the negligence claim would require the same preparation; the evidence disclosed a triable issue as to whether the first, second and third defendants were engaged in a wider overarching partnership liable to the plaintiffs; and the alleged admission concerning discontinuance against the second defendant was informal, promptly withdrawn, non-prejudicial and insufficient to justify discretionary judgment under UCPR 17.7. Leave to amend was granted because the defendants accepted...

Court Disposition

Defendants' interlocutory applications dismissed; plaintiffs granted leave to file and serve a second amended statement of claim.

Orders

  • ["The notices of motion filed on 7 May 2010 and 20 May 2010 for the second and third defendants are dismissed. The second and third defendants are to pay the plaintiffs' costs of those notices of motion." "The notice of motion filed on 20 May 2010 for the first defendant is dismissed. The first defendant is to pay...