NSW Caselaw
New South Wales Court of Appeal
CITATION: Smith v. Rynne [2005] NSWCA 77
HEARING DATE(S): 24 February 2005
JUDGMENT DATE: 21 March 2005
JUDGMENT OF: Hodgson JA at 1; Santow JA at 31; Brownie AJA at 36
DECISION: 1. Leave to appeal granted, Notice to Appeal to be filed within 14 days. 2. Appeal allowed. 3. Orders below set aside, and in lieu thereof: (a) Statement of Claim struck out. (b) Liberty to opponent to submit an Amended Statement of Claim and seek leave to introduce it as an amendment. (c) Costs of application to date to be costs in the proceedings. 4. Opponent to pay claimant's costs of the leave application and appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.
CATCHWORDS: CONTRACTS - PROCEDURE - Whether contractual right joint or several - Where breach of contractual duty to two persons jointly causes damage to only one of them - Necessary parties - LIMITATION OF ACTIONS - Cause of action founded on a deed - Cause of action founded on breach of duty for damages for personal injury - Whether in latter case personal injury must be caused by the breach of duty.
LEGISLATION CITED: Limitation Act 1969 (NSW) ss.11, 13, 14, 16, 18A
Australian Securities Ltd. v. Western Australia Insurance Co. Ltd. (1929) 29 SR(NSW) 571 CASES CITED: Churchill v. Connolly [2004] NSWCA 212
Raymond David Smith - appellant PARTIES: David Colin Rynne - respondent
FILE NUMBER(S): CA 40456/04
Mr. B.J. Gross QC for the claimant COUNSEL: Mr. B.M.J. Toomey QC with Ms. M. Holz for the opponent
McMahons National Lawyers, Sydney for appellant SOLICITORS: Diamond Peisah, Sydney for respondent
LOWER COURT JURISDICTION: District Court
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