Della Franca v Lorenzato; Burwood Council v Lorenzato

The proceedings involved appeals from orders made at first instance concerning claims of negligent misstatement. Ms Lorenzato had sued both Burwood Council and Mr Della Franca, the vendor of a property she purchased. The dispute centred on alleged misstatements in a planning certificate issued by the Council under section 149 of the *Environmental Planning and Assessment Act 1979* (NSW) and in answers to requisitions provided by Mr Della Franca. The appeals were heard by Basten, Macfarlan, and Brereton JJA in the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issues before the Court of Appeal were whether the planning certificate issued by Burwood Council contained negligent misstatements, whether a resolution adopted by the Council constituted an abandoned policy, and whether section 43A of the *Civil Liability Act 2002* (NSW) applied to the issue of the planning certificate, thereby potentially limiting liability. Additionally, the Court considered whether section 733 of the *Local Government Act 1993* (NSW) provided an exemption from liability for the Council regarding advice about flood risk, and whether Mr Della Franca had made misstatements in the answers to requisitions supplied to Ms Lorenzato.

The Court of Appeal determined that the planning certificate issued by Burwood Council did not contain negligent misstatements. It found that the Council’s actions in issuing the certificate did not fall within the scope of section 43A of the *Civil Liability Act 2002* (NSW) as it did not involve the exercise of a "special statutory power" in the relevant sense. Furthermore, the Court held that section 733 of the *Local Government Act 1993* (NSW) did not apply to exempt the Council from liability in this instance. Regarding Mr Della Franca, the Court found that the answers to requisitions provided by him did not contain misstatements.

Consequently, the Court of Appeal allowed the appeal by Burwood Council, setting aside the first instance orders and entering judgment for the Council against Ms Lorenzato. The Court also allowed Mr Della Franca's appeal, setting aside the first instance orders and entering judgment for him on Ms Lorenzato's claim. Ms Lorenzato was ordered to pay the costs of both Burwood Council on appeal and 50% of its costs at first instance, and to pay Mr Della Franca's costs at first instance and on appeal. Mr Della Franca's applications to adduce further evidence on appeal were rejected.