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

New South Wales Court of Appeal

CITATION : Segal t/as Segal Litton & Chilton v. Fleming [2002] NSWCA 262 FILE NUMBER(S) : CA 40169/02 HEARING DATE(S) : 2 August 2002 JUDGMENT DATE : 14 August 2002

PARTIES : Alan Lewis Segal t/as Segal Litton & Chilton - claimaint Brian William Fleming - opponent JUDGMENT OF : Handley JA at 1; Hodgson JA at 2; Young CJ in Eq at 37

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CL20237/00 FILE NUMBER(S) : LOWER COURT Howie J JUDICIAL OFFICER :

COUNSEL : Mr. D. Davies SC for claimant Mr. T. Lynch for opponent SOLICITORS : Ebsworth & Ebsworth, Sydney for claimant Hunt & Hunt, Sydney for opponent CATCHWORDS : LIMITATION OF ACTIONS - Tort - When damage first suffered - Whether actual or merely contingent or prospective - Chance of a loss or loss of a chance - Property encumbered by easement in circumstances where plaintiff had equitable claim to have easement removed. LEGISLATION CITED : Limitation Act 1969 (NSW), s.14 Argyropoulus v. Layton [2002] NSWCA 183 Bailey v. Redebi Pty. Ltd. (1999) Aust.Torts.Rep. 81-523 Cassis v. Kalfus [2001] NSWCA 460 Cassis v. Kalfus [2001] NSWCA 460 Cigna Insurance Asia Pacific v. Packer (2000) 23 WAR 159 CASES CITED: Forster v. Outred & Co. [1982] 1 WLR 86 Pullen v. Gutteridge [1993] 1 VR 27 Scarcella v. Lettice (2000) 51 NSWLR 302 Sellars v. Adelaide Petroleum (1994) 179 CLR 332 Sorrenti v. Crown Corning Ltd. (1986) 7 NSWLR 77 Wardley Australia Ltd. v. Western Australia (1992) 175 CLR 514 Wilson v. Rigg [2002] NSWCA 246 DECISION : 1. Leave to appeal granted and appeal allowed, subject to a Notice of appeal being filed within 14 days. 2. Opponent to pay claimant's costs of the application and appeal, and to have a suitors' fund certificate if otherwise entitled. 3.Orders below set aside, and in lieu thereof: (a) Opponent to pay the claimant's costs of the separate hearing. (b) Leave to opponent to apply pursuant to Pt.20 r.4(5) to substitute a cause of action based on the facts alleged in the Statement of Claim but specifying the breach of duty referred to in paragraph 9 of the existing Statement of Claim as being negligence referable to the events of August 1989 referred to in the judgment, such application together with a Draft Amended Statement of Claim to be filed and served within 14 days. (c) If no such application and Draft Statement of Claim is filed and served within 28 days, or if such application is dismissed, verdict and judgment for the defendant with costs.