Cheney & Wilson v Duncan [2001] NSWCA 197

Cheney & Wilson v Duncan [2001] NSWCA 197

The respondent's alleged loss was the loss of the chance to sue Dennison before expiry of the limitation period. The appellants' alleged wrongful acts causing that loss did not conceal from the respondent that he might have a claim against the appellants or preclude him from bringing proceedings against them within the statutory period. The Hawkins v Clayton exception therefore did not apply, and the claim against the appellants was statute barred, so summary judgment should have been granted.

Jurisdiction
Australia
Judgment Date
06 July 2001
Procedural Posture
Appeal / Appeal From Dismissal of the Appellants' Application for Summary Dismissal in the District Court
Outcome
Appeal upheld; summary judgment ordered for the appellants; respondent's claim dismissed with costs.
Legal Topics
['accrual of Cause of Action' "solicitors' Negligence" 'statute Barred Personal Injury Claim' 'summary Judgment' 'exception in Hawkins V Clayton']
['limitation of Actions' 'professional Negligence' 'civil Procedure'] ['accrual of Cause of Action' "solicitors' Negligence" 'statute Barred Personal Injury Claim' 'summary Judgment' 'exception in Hawkins V Clayton']

Case Brief

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Procedural Posture

Appeal / Appeal From Dismissal of the Appellants' Application for Summary Dismissal in the District Court

Legal Issues

  1. 1 ["Whether the respondent's professional negligence and breach of retainer claim against the appellants was barred by s 14 of the Limitation Act 1969." 'Whether the exception discussed by Deane J in Hawkins v Clayton applied so that time did not run while the alleged wrongful act precluded proceedings.' 'Whether summary judgment should have been entered for the appellants.']

Ratio Decidendi

The respondent's alleged loss was the loss of the chance to sue Dennison before expiry of the limitation period. The appellants' alleged wrongful acts causing that loss did not conceal from the respondent that he might have a claim against the appellants or preclude him from bringing proceedings against them within the statutory period. The Hawkins v Clayton exception therefore did not apply, and the claim against the appellants was statute barred, so summary judgment should have been granted.

Court Disposition

Appeal upheld; summary judgment ordered for the appellants; respondent's claim dismissed with costs.

Orders

  • ['Appeal upheld' 'Summary judgment in favour of appellant' "Respondent's claim against the appellant dismissed with costs" "Respondent to have certificate under the Suitor's Fund Act, if so entitled"]