Eder v Malouf Solicitors [2012] NSWDC 8

Eder v Malouf Solicitors [2012] NSWDC 8

The plaintiff failed to prove negligence by Malouf Solicitors in allowing the limitation period to expire or any actionable loss resulting therefrom. The evidence did not establish that the plaintiff provided Malouf Solicitors with the necessary information to ascertain limitation dates, nor that the solicitors failed to make timely enquiries. There was no loss of chance against Marsdens, as the plaintiff voluntarily consented to discontinuance of the original proceedings, making his claim bound to fail.

Parties
Plaintiff: Herbert Eder; Defendant: Malouf Solicitors
Jurisdiction
Australia
Judgment Date
15 February 2012
Procedural Posture
Civil / Principal Judgment
Outcome
Verdict for the defendant
Legal Topics
Loss of Chance, Limitation Periods, Solicitor's Duty of Care, Breach of Contract, Damages Assessment, Section 71 Trade Practices Act 1974
Professional Negligence Torts Contract Law Loss of Chance Limitation Periods Solicitor's Duty of Care Breach of Contract Damages Assessment +1 more

Case Brief

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Parties

Herbert Eder

Plaintiff

Malouf Solicitors

Defendant

Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 Whether Malouf Solicitors were negligent in filing proceedings out of time and omitting certain allegations
  2. 2 Whether the plaintiff suffered a loss of chance to succeed in claim against Marsdens and in original claim against SCF and Coles
  3. 3 Whether any actionable damage resulted from the alleged misrepresentation or omission

Ratio Decidendi

The plaintiff failed to prove negligence by Malouf Solicitors in allowing the limitation period to expire or any actionable loss resulting therefrom. The evidence did not establish that the plaintiff provided Malouf Solicitors with the necessary information to ascertain limitation dates, nor that the solicitors failed to make timely enquiries. There was no loss of chance against Marsdens, as the plaintiff voluntarily consented to discontinuance of the original proceedings, making his claim bound to fail.

Court Disposition

Verdict for the defendant

Orders

  • Verdict for the defendant.
  • The plaintiff is to pay the defendant's costs of the action.