DUNCAN v MENDES [1998] NSWCA 278

DUNCAN v MENDES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

ROLFE AJA, PRIESTLEY and BEAZLEY JJA 22 April 1998, 29 May 1998

SOLICITOR'S NEGLIGENCE — LIMITATION ACT 1969 (NSW) — s14, s54 — meaning of "confirmation" — had the limitation period expired.

In June 1985 the appellant initiated proceedings for damages for injuries sustained when a car, driven by D hit him on 24 December 1983. D was insured by FAI Insurance Group (FAI). Correspondence and exchanging of information followed between the appellant's solicitors and FAI during late 1985 until mid 1986. By letter, dated 19 March 1986, FAI advised the appellant's solicitors that they were prepared to accept the claim and forwarded an offer on 3 June 1986 which was not accepted. By 24 December 1989 no proceedings had been commenced Mendes, now the appellant's solicitor, wrote to the appellant in March 1990 advising him to seek independent legal advice for the limitation period as his claim had expired since Mendes had given the matter over. The appellant then retained a third firm of solicitors. By letter on 29 January 1991, Mendes sent the appellant's new solicitor an advice note from an independent solicitor stating that FAI's letter of 19 March 1986 was an admission of liability therefore the limitation period would not expire for the SDC years following 19 March 1986. In April 1991 the new solicitors filed a statement of claim against D. However, this action was discontinued and proceedings against Mendes were commenced on the advice of counsel that by the negligence of Mendes the appellant had become barred against D.

At the trial Murrell DCJ held that The letter of FAL dated 19 March 1986, was "confirmation" pursuant to s54, the claim against D had not been statute barred when discontinued, there had been no loss caused to the appellant by Mendes, and thus no negligence by him.