VINING v MARDENS and ANOR [1998] NSWCA 250

VINING v MARDENS and ANOR [1998] NSWCA 250

The appellant's action was for negligent advice, not a cause of action founded on a deed, so the six year limitation period applied and proceedings were commenced outside this period; loss occurred when the deed was approved; early determination of the limitation point was appropriate, and the appeal therefore fails.

Parties
Appellant: Vining; Respondent: Mardens
Jurisdiction
Australia
Judgment Date
20 November 1998
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Statutory Limitation Period, Negligent Legal Advice, Deeds, Preliminary Determination, Family Law Maintenance
Civil Procedure Limitations Professional Negligence Statutory Limitation Period Negligent Legal Advice Deeds Preliminary Determination Family Law Maintenance

Case Brief

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Parties

Vining

Appellant

Mardens

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the cause of action was founded on a deed or in negligence for the purpose of the Limitation Act
  2. 2 When loss was incurred for limitation purposes
  3. 3 Whether the limitation defence should have been determined as a preliminary issue

Ratio Decidendi

The appellant's action was for negligent advice, not a cause of action founded on a deed, so the six year limitation period applied and proceedings were commenced outside this period; loss occurred when the deed was approved; early determination of the limitation point was appropriate, and the appeal therefore fails.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed
  • Appellant to pay the respondents' costs of the appeal