Iverson v Howen & Anor [2008] NSWSC 1246

Iverson v Howen & Anor [2008] NSWSC 1246

The claim in contract is statute barred as the cause of action accrued at breach; however, the claim in tort may not be statute barred since damage may have occurred at a later date. Limitation and advocate's immunity issues are not suitable for summary determination on the current material. Defendants' motions to dismiss or strike out are dismissed.

Parties
Plaintiff: Michael Iverson; First Defendant: Alexander Howen; Second Defendant: Francis Vouroudis t/a Photios Vouroudis & Co
Jurisdiction
Australia
Judgment Date
26 November 2008
Procedural Posture
Professional Negligence / Interlocutory Applications—motions to Summarily Dismiss or Strike Out
Outcome
Defendants' motions dismissed; claim in tort to proceed; plaintiff permitted to seek amendment to add claim in fraud subject to directions.
Legal Topics
Solicitor and Barrister Liability, Advocate's Immunity, Statute of Limitations, Industrial Relations, Application for Reinstatement
Professional Negligence Limitation of Actions Solicitor and Barrister Liability Advocate's Immunity Statute of Limitations Industrial Relations Application for Reinstatement

Case Brief

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Parties

Michael Iverson

Plaintiff

Alexander Howen

First Defendant

Francis Vouroudis t/a Photios Vouroudis & Co

Second Defendant

Procedural Posture

Professional Negligence / Interlocutory Applications—motions to Summarily Dismiss or Strike Out

Legal Issues

  1. 1 Whether the claim is statute barred under s14 of the Limitation Act 1969
  2. 2 When the cause of action in negligence accrued (timing of damage)
  3. 3 Whether particulars of breach fall within advocate's immunity

Ratio Decidendi

The claim in contract is statute barred as the cause of action accrued at breach; however, the claim in tort may not be statute barred since damage may have occurred at a later date. Limitation and advocate's immunity issues are not suitable for summary determination on the current material. Defendants' motions to dismiss or strike out are dismissed.

Court Disposition

Defendants' motions dismissed; claim in tort to proceed; plaintiff permitted to seek amendment to add claim in fraud subject to directions.

Orders

  • Defendants' motions under Pt 13, r4 and Pt 14, r28 of the Uniform Civil Procedure Rules 2005 dismissed.
  • No formal order made regarding the contract claim at this stage.