Fleming v Segal [2001] NSWSC 754

New South Wales Supreme Court

CITATION : Fleming v Segal [2001] NSWSC 754 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20237/00 HEARING DATE(S) : 28 August 2001 JUDGMENT DATE : 31 August 2001

PARTIES : Brian William Fleming Alan Lewis Segal t/a Segal, Litton & Chilton JUDGMENT OF : Sperling J at 1

COUNSEL : T Lynch for the Plaintiff P Davies SC for the Defendant SOLICITORS : Hunt & Hunt Lawyers for the Plaintiff Ebsworth & Ebsworth Lawyers for the Defendant CATCHWORDS : Practice and procedure - order for trial of a separate issue - no question of principle DECISION : Orders pursuant to paras 1 and 3 of the defendant's notice of motion filed on 6 April 2001.

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES

Common Law Division 31 August 2001

SPERLING J

Judgment

20237/00 Brian John Fleming v A L Segal t/as Segal, Litton & Chilton 1 The principal proceedings are a claim for damages, brought by the plaintiff against his former solicitor, alleging negligence in failing to extinguish a right of way. 2 At that time the plaintiff was the owner of what need only be designated as "Lot 1" for present purposes. The plaintiff and his sister were the owners of an adjacent lot, "Lot 2". The relevant right of way was in favour of Lot 2 over Lot 1. 3 Pursuant to an agreement for sale made in 1986, the plaintiff and his sister transferred Lot 2 to a Mr Toltz. The defendant acted for the vendors. He was instructed to extinguish the right of way over Lot 1, the plaintiff's land. To that end, a transfer releasing an easement over Lot 1, created in 1971, was obtained from Mr Toltz on the sale. 4 In 1994, Mr Toltz sold Lot 2 to a Mr Smouha and a Ms Ho. In proceedings brought by them against the plaintiff, Hodgson J decided that the right of way over Lot 1 was not extinguished as had been intended. That was because of his Honour's construction of a 1976 dealing between the plaintiff, as owner of Lot 1, and the plaintiff and his sister, as owners of Lot 2. The decision turned on a choice between competing experts concerning the meaning of a symbol on a plan, forming part of the dealing. 5 The result was that, prior to the sale to Mr Toltz, there were two sources in law for the right of way over Lot 1, only one of which was extinguished, leaving the right of way in existence. 6 The plaintiff asserts that the defendant ought to have known that the 1976 dealing was a concurrent source of the right of way over Lot 1, and was negligent in failing to secure extinction of it insofar as it arose from that source. 7 The defendant denies that he was negligent and asserts that the plaintiff's claim is statute barred. The point turns on when damage to the plaintiff first occurred. 8 The proceedings were commenced in 2000. The defendant says the plaintiff's cause of action arose in 1987 when the defendant failed, according to the decision of Hodgson J, to extinguish the right of way on the sale to Mr Toltz. The plaintiff says the cause of action arose in 1994 when Mr Smouha and Ms Ho purchased Lot 2. If the plaintiff is right he is within time, otherwise not. 9 By notice of motion filed on 6 April 2001, the defendant seeks an order for separate trial of the limitation issue. 10 The plaintiff and the defendant have agreed on a set of facts relevant to the limitation issue, from which the summary given earlier in this judgment has been drawn. The plaintiff also relies on the evidence of two witnesses who have sworn affidavits. As to these, counsel for the defendant says he will not cross-examine on the affidavits when read. He will object to certain passages. Objections as to relevance can only reduce the evidence. Objections as to form may result in oral evidence being given in substitution, but will not enlarge the substance of the evidence now proffered. Counsel for the plaintiff said that he would also lead oral evidence on a narrow issue (no relevant contact between the plaintiff and Mr Toltz between April and September 1994) and to correct a slip in one of the affidavits (concerning a facsimile transmission). Counsel for the defendant said that evidence would not be challenged either. The primary facts relevant to the limitation issue are accordingly ascertained and fixed. 11 On behalf of the defendant, it was submitted that the limitation issue is essentially one of law on known facts; that a decision favourable to the defendant on that issue would resolve the proceedings; and that such a result would avoid the costs of a full trial, which would include the evidence of surveyors as to the meaning of the symbol in the 1976 dealing (not decided as between the plaintiff and the defendant), expert evidence as to what should have been known to a solicitor in that regard, and valuation evidence relating to quantum of damages. 12 Counsel for the plaintiff initially submitted that the facts relevant to the limitation issue were not ascertained because the affidavit evidence might be challenged and might be answered, with unknown consequences for the ambit of the relevant factual stratum. That point, however, was resolved by the defendant's counsel's position in relation to the evidence, which I have recorded earlier. 13 Counsel for the plaintiff did not otherwise dispute the points made by counsel for the defendant. He relied on authorities which caution against orders of the kind sought and which limit the proper exercise of the discretion to cases which are special. 14 It is unnecessary to refer to the authorities. The principles are well settled. The primary consideration is utility. 15 This is, in my view, a clear case. The limitation issue is restricted to the resolution of a question of legal principle and its application to primary facts established by the agreed statement of facts, the evidence on affidavit, and short oral evidence the substance of which is known and will not be challenged. If the issue is decided in favour of the defendant considerable legal costs will have been saved in trial time, time in preparation and witness expenses. An order for a separate trial should be made. 16 Costs should follow the event. 17 The orders of the court will be: Orders pursuant to paras 1 and 3 of the defendant's notice of motion filed on 6 April 2001. -oOo-