Guiney v Australand Holdings Ltd; Castlehaven Sales No 2 (t/as Castlehaven Realtors v Guiney

The appeal concerned a claim for damages arising from negligence, brought by the appellant, Guiney, against the first respondent, Australand Holdings Ltd, the builder of a newly constructed home. Guiney alleged that a defect in the premises caused injury to a member of his immediate family. The second respondent, Castlehaven Sales No 2 (trading as Castlehaven Realtors), was also involved in the proceedings. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the trial judge erred in finding Australand Holdings Ltd liable in negligence, and if so, whether the quantum of damages awarded was appropriate. A further issue arose concerning the application of a change in statute law that occurred after the trial but before judgment was delivered, and whether this change could be raised on appeal.

The Court of Appeal upheld the appeal against Australand Holdings Ltd on the issue of liability, finding that the trial judge had erred in their assessment. However, the appeals concerning the quantum of damages were dismissed. The Court considered the application of s 15B of the Civil Liability Act 2002, noting that the opportunity to bring the change in law to the attention of the trial judge had not been taken by the legal representatives, and that determining the appeal on this point would be prejudicial to the other party. The Court therefore proceeded on the basis of the law as it stood at the time of the trial.

Consequently, the Court of Appeal set aside certain orders of the District Court and substituted a verdict for the appellant against the first defendant for $96,100. The Bullock order was also set aside. The Court ordered that Australand Holdings Ltd pay the appellant's costs of the appeal, with a certificate under the Suitor's Fund Act if qualified, and that the appellant pay the costs of the second and third respondents of the appeal. Liberty to apply was granted within 14 days for relief appropriate to the cross-claims.