Fleming v Segal [2002] NSWSC 42

Fleming v Segal [2002] NSWSC 42

Where a solicitor's omission leaves the client with a title defect but the client retains the means (via rectification or agreement enforcement) to cure the defect, actual damage does not accrue for the purpose of the Limitation Act until those means are lost. In this case, the plaintiff suffered no measurable loss prior to Mr Toltz's sale of Lot 2, after which rectification could no longer be compelled, and only then did the limitation period begin to run.

Parties
Plaintiff: Brian William Fleming; Defendant: Alan Lewis Segal
Jurisdiction
Australia
Judgment Date
14 February 2002
Procedural Posture
Professional Negligence / Separate Trial of Limitation Issue
Outcome
Defence based upon the Limitation Act fails and is dismissed.
Legal Topics
Limitation of Actions, Defects in Title, Rectification of Contract, Economic Loss
Tort Law Contract Law Professional Negligence Property Law Limitation of Actions Defects in Title Rectification of Contract Economic Loss

Case Brief

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Parties

Brian William Fleming

Plaintiff

Alan Lewis Segal

Defendant

Procedural Posture

Professional Negligence / Separate Trial of Limitation Issue

Legal Issues

  1. 1 When did the cause of action for professional negligence by a solicitor accrue for limitation purposes?
  2. 2 Did actual, measurable damage occur at the time of breach or later when rectification was unavailable?

Ratio Decidendi

Where a solicitor's omission leaves the client with a title defect but the client retains the means (via rectification or agreement enforcement) to cure the defect, actual damage does not accrue for the purpose of the Limitation Act until those means are lost. In this case, the plaintiff suffered no measurable loss prior to Mr Toltz's sale of Lot 2, after which rectification could no longer be compelled, and only then did the limitation period begin to run.

Court Disposition

Defence based upon the Limitation Act fails and is dismissed.

Orders

  • Defence based upon the Act is dismissed.