Jackson v Symonds & Anor [2005] NSWSC 228

Jackson v Symonds & Anor [2005] NSWSC 228

The alleged negligent advice and any contractual breach relevant to the property settlement caused damage, if at all, when the 1996 Deed was executed and approved. The 1997 revocation and substitute Deed merely altered the payment schedule and did not provide a practical opportunity to renegotiate the property settlement or cause new or further damage. The limitation defence under the Limitation Act 1969 therefore had to succeed in respect of the negligence and breach of contract claims based on the 1997 Deed, making those parts of the statement of claim an abuse of process and liable to be struck out.

Jurisdiction
Australia
Judgment Date
22 March 2005
Procedural Posture
Common Law Division Proceedings Concerning Professional Negligence and Breach of Contract Claims Arising From Family Law Act Property Settlement Advice / Notices of Motion for Summary Disposal and for Leave to Amend Originating Process
Outcome
The defendants' summary disposal applications succeeded in part; the Further Amended Statement of Claim was struck out to the extent that it relied on negligence or breach of contract by the first and second defendants in relation to the 1997 Deed; leave was granted to file an amended statement of claim in...
Legal Topics
['summary Disposal' 'strike Out' 'abuse of Process' 'leave to Amend Statement of Claim' 'accrual of Causes of Action' 'maintenance Agreement Revocation Under Family Law Act 1975 S 87']
['civil Procedure' 'limitation of Actions' 'professional Negligence' 'contract' 'family Law'] ['summary Disposal' 'strike Out' 'abuse of Process' 'leave to Amend Statement of Claim' 'accrual of Causes of Action' 'maintenance Agreement Revocation Under Family Law Act 1975 S 87']

Case Brief

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Procedural Posture

Common Law Division Proceedings Concerning Professional Negligence and Breach of Contract Claims Arising From Family Law Act Property Settlement Advice / Notices of Motion for Summary Disposal and for Leave to Amend Originating Process

Legal Issues

  1. 1 ["Whether the plaintiff's negligence and breach of contract claims against the first and second defendants arising from advice given in 1996 and 1997 were statute barred." 'Whether the 1997 revocation and approval of a substitute deed caused new or further damage or gave rise to a fresh actionable breach.' 'Whether the relevant parts of the Further Amended Statement of Claim should be struck out as an abuse of process.' 'Whether leave should be granted to file an amended statement of claim.']

Ratio Decidendi

The alleged negligent advice and any contractual breach relevant to the property settlement caused damage, if at all, when the 1996 Deed was executed and approved. The 1997 revocation and substitute Deed merely altered the payment schedule and did not provide a practical opportunity to renegotiate the property settlement or cause new or further damage. The limitation defence under the Limitation Act 1969 therefore had to succeed in respect of the negligence and breach of contract claims based on the 1997 Deed, making those parts of the statement of claim an abuse of process and liable to be struck out.

Court Disposition

The defendants' summary disposal applications succeeded in part; the Further Amended Statement of Claim was struck out to the extent that it relied on negligence or breach of contract by the first and second defendants in relation to the 1997 Deed; leave was granted to file an amended statement of claim in...

Orders

  • ['The portions of the statement of claim relying upon negligence or breach of contract by the first and second defendants in relation to the 1997 Deed are to be struck out.' 'Leave granted to the plaintiff to file an amended statement of claim in accordance with the ruling and the agreements between the parties.'...