MILUTINOVIC v VARDAS [2005] NSWSC 1333

MILUTINOVIC v VARDAS [2005] NSWSC 1333

Plaintiff's main claims regarding the conduct of litigation against the Commonwealth and loss of opportunity to appeal are statute-barred by the Limitation Act 1969, as the causes of action accrued no later than March 1995 and proceedings commenced in 2004. Claims for unjust enrichment based on improper use of client trust monies, while also outside limitation periods, arguably involve fraudulent concealment or otherwise may relate to continuing breaches, allowing amendment for those limited heads of relief.

Jurisdiction
Australia
Judgment Date
19 December 2005
Procedural Posture
Civil / Interlocutory Judgment on Strike Out and Amendment Applications
Outcome
Statement of claim struck out; application to amend in broad terms dismissed; leave to bring limited amended claim for unjust enrichment; matter transferred to Local Court.
Legal Topics
['limitation of Actions' 'fiduciary Duty' 'unjust Enrichment']
['civil Procedure' 'professional Negligence'] ['limitation of Actions' 'fiduciary Duty' 'unjust Enrichment']

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Procedural Posture

Civil / Interlocutory Judgment on Strike Out and Amendment Applications

Legal Issues

  1. 1 ["Whether plaintiff's claim for professional negligence and loss arising from litigation against the Commonwealth is barred by the Limitation Act 1969 (NSW)" 'Whether claim based on alleged breaches of fiduciary duty in respect of trust monies is similarly barred' "Extent of defendant's liability in unjust enrichment for use of client funds"]

Ratio Decidendi

Plaintiff's main claims regarding the conduct of litigation against the Commonwealth and loss of opportunity to appeal are statute-barred by the Limitation Act 1969, as the causes of action accrued no later than March 1995 and proceedings commenced in 2004. Claims for unjust enrichment based on improper use of client trust monies, while also outside limitation periods, arguably involve fraudulent concealment or otherwise may relate to continuing breaches, allowing amendment for those limited heads of relief.

Court Disposition

Statement of claim struck out; application to amend in broad terms dismissed; leave to bring limited amended claim for unjust enrichment; matter transferred to Local Court.

Orders

  • ['Statement of Claim struck out' "Plaintiff's application to amend in accordance with draft Amended Statement of Claim refused" 'Leave to amend limited to heads of unjust enrichment as per reasons' 'Proceedings stood over to February 2006 for further directions' 'Proceedings transferred to Local Court at Downing...