VINING v MARDENS and ANOR [1998] NSWCA 250

VINING v MARDENS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, BEAZLEY and STEIN JJA 19 October 1998, 20 November 1998 [1998] NSWCA 250

APPEAL — statutory limitation period — appropriate period to be applied — whether cause of action founded on deed or in negligence — Limitation Act, s14(1)(b), s16

APPEAL — statutory limitation period — time at which loss is incurred

APPEAL — statutory limitation period — whether application of limitation period should be determined as a preliminary issue — exception to the rule in Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

The Appellant was advised by the respondents in family law proceedings, which advice the appellant later alleged in Supreme Court proceedings was negligently given. The respondents successfully moved the Supreme Court to summarily dismiss those proceedings as frivolous, vexatious or an abuse of power, on the basis that they were instituted outside the limitation period in s14(1)(b) of the Limitation Act 1969 (NSW). The appellant appealed from that dismissal on the grounds that:

* because the advice related to a deed, the 12 year limitation period in s16 of the Limitation Act applied and the proceedings were filed within that period;

* the judge erred in determining the time at which loss occurred; and

* the respondents Limitation Act defence should not have been determined as a preliminary issue.

HELD, dismissing the appeal:

1. Proceedings are not "a cause of action founded on a deed" for the purposes of s16 of the Limitation Act merely because the advice to which the proceedings relate concerned a deed. Therefore, the longer limitation period in s16 does not apply. The s14 limitation period of six years applies to actions founded on tort, including professional negligence. The applicant did not bring his action within this time. Any proposed amendment to allege misrepresentation would not have converted the claim to one founded on a deed.