Segal t/as Segal Litton & Chilton v. Fleming [2002] NSWCA 262

Segal t/as Segal Litton & Chilton v. Fleming [2002] NSWCA 262

Actual and measurable loss was suffered by the opponent when the failure to remove the 1976 right of way resulted in the land’s diminished value at the time of sale to Toltz, so any cause of action arising from events prior to that time is statute-barred. However, the claim based on negligence in August 1989 accrued only on the sale in 1994 and is not statute-barred, allowing possible amendment to the Statement of Claim to specify this breach.

Jurisdiction
Australia
Judgment Date
14 August 2002
Procedural Posture
Civil Appeal / Leave to Appeal and Determination
Outcome
Leave to appeal granted and appeal allowed, subject to notice of appeal being filed within 14 days.
Legal Topics
['negligence' 'economic Loss' 'accrual of Cause of Action' 'limitation Period' 'rectification of Contract']
['tort Law' 'limitation of Actions'] ['negligence' 'economic Loss' 'accrual of Cause of Action' 'limitation Period' 'rectification of Contract']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Appeal / Leave to Appeal and Determination

Legal Issues

  1. 1 ['When does actual and measurable damage occur to complete a cause of action in tort for solicitor negligence concerning failure to remove an easement?' 'Does the loss constitute actual damage at the time of sale or only upon the loss of the opportunity for rectification?' 'Is the claim statute-barred under s.14 of the Limitation Act 1969 (NSW)?']

Ratio Decidendi

Actual and measurable loss was suffered by the opponent when the failure to remove the 1976 right of way resulted in the land’s diminished value at the time of sale to Toltz, so any cause of action arising from events prior to that time is statute-barred. However, the claim based on negligence in August 1989 accrued only on the sale in 1994 and is not statute-barred, allowing possible amendment to the Statement of Claim to specify this breach.

Court Disposition

Leave to appeal granted and appeal allowed, subject to notice of appeal being filed within 14 days.

Orders

  • ["Opponent to pay claimant's costs of the application and appeal, and to have a suitors' fund certificate if entitled." 'Orders below set aside.' "Opponent to pay the claimant's costs of the separate hearing." 'Leave to opponent to apply under Pt.20 r.4(5) to substitute a cause of action in negligence relating to...