Uttinger v The Trustees of the Hospitaller Order of St John of God Brothers [2008] NSWSC 1354

Uttinger v The Trustees of the Hospitaller Order of St John of God Brothers [2008] NSWSC 1354

The claims are statute barred under the Contracts Review Act, the deed of release is an absolute defence unless set aside, the statutory corporation does not owe the alleged duty of care, and New Zealand law bars common law damages claims. Advice to settle was not negligent given these circumstances; therefore, no arguable case exists against either defendant and the proceedings must be dismissed.

Jurisdiction
Australia
Judgment Date
16 December 2008
Procedural Posture
Civil / Final Judgment; Motion to Dismiss and Strike Out
Outcome
Statement of claim against both defendants dismissed; proceedings dismissed; plaintiff to pay defendants' costs; liberty to apply for special or different costs orders.
Legal Topics
['motion to Strike Out' 'deed of Release' 'bar to Proceedings' 'time Limit for Contracts Review Act Action' 'negligence by Solicitors' 'application of Foreign Law' 'statutory Corporation Liability']
['practice and Procedure' 'contract Law' 'negligence'] ['motion to Strike Out' 'deed of Release' 'bar to Proceedings' 'time Limit for Contracts Review Act Action' 'negligence by Solicitors' 'application of Foreign Law' 'statutory Corporation Liability']

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

Civil / Final Judgment; Motion to Dismiss and Strike Out

Legal Issues

  1. 1 ['Effect of the deed of release as bar to proceedings' 'Limitation period under Contracts Review Act 1984' 'Duty of care owed by statutory corporation' 'Negligence of solicitors in settlement advice' 'Application of New Zealand Accident Compensation Act to bar damages claims']

Ratio Decidendi

The claims are statute barred under the Contracts Review Act, the deed of release is an absolute defence unless set aside, the statutory corporation does not owe the alleged duty of care, and New Zealand law bars common law damages claims. Advice to settle was not negligent given these circumstances; therefore, no arguable case exists against either defendant and the proceedings must be dismissed.

Court Disposition

Statement of claim against both defendants dismissed; proceedings dismissed; plaintiff to pay defendants' costs; liberty to apply for special or different costs orders.

Orders

  • ['The statement of claim against the first and second defendants be dismissed.' 'The proceedings be dismissed.' "The plaintiff pay the defendants' costs of and incidental to the proceedings, as agreed or assessed." "The parties have liberty to make an application as to any special or different order as to costs on 3...