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Hillebrand v Penrith Council

Hillebrand v Penrith Council

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CITATION: Hillebrand v Penrith Council [2000] NSWSC 1058

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3391/00

HEARING DATE(S): 13, 14 November 2000

JUDGMENT DATE: 14 November 2000

PARTIES :

Bernard Hillebrand (P1)
Lindy Gai Hillebrand (P2)
The Council of the City of Penrith (D1)
Richard Mork (D2)
The Registrar General of New South Wales (D3)

JUDGMENT OF: Austin J

COUNSEL : J Whittle SC with H Woods (P)
D P Robinson (D1)

SOLICITORS: Roberts Mann Davies (P)
Gadens (D1)

CATCHWORDS: PRACTICE AND PROCEDURE - summary dismissal - scope of Pt 13 r 5 - whether there is 'no reasonable course of action' if there is a clearly applicable limitation period - TORT - negligence causing economic loss - Council alleged to have negligently conveyed away plaintiffs' land - whether cause of action accrues when conveyance occurs or when plaintiffs discover that it has occurred - whether limitation period has expired.

LEGISLATION CITED: Limitation Act 1969 (NSW) ss 14, 56
Local Government Act 1919 (NSW) ss 602, 604
Real Property Act 1900 (NSW) s 42
Supreme Court Rules Pt 1 r 3, Pt 15 r 26, Pt 13 r 5

CASES CITED: Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937
Shoalhaven Shire Council v Logue (1979) 41 LGRA 116
Bryant v Maloney (1995) 182 CLR 609
Pyrenees Shire Council v Day (1998) 192 CLR 330
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Idoport Pty Ltd v National Australia Bank (2000) 49 NSWLR 51
Scarcella v Lettice [2000] NSWCA 289
Registrar General v Cleaver (1996) 41 NSWLR 713
Christopoulos v Angelos (1996) 41 NSWLR 700
Sargent v ASL Development Limited (1974) 131 CLR 634
McKenny v The Council of the Shire of Balmoral [1906] QdWN Case 14

DECISION: Summary dismissal of part of proceedings relating to relief claimed for negligence causing economic loss

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 14 NOVEMBER 2000

3391/00 - BERNARD HILLEBRAND & ANOR v THE COUNCIL OF THE CITY OF PENRITH
JUDGMENT (Ex tempore; revised 15 November 2000)

1 HIS HONOUR: This is an application by Notice of Motion filed on 30 October 2000 by the Council, as first defendant in the proceedings, for orders directed to part of the plaintiffs' Further Amended Statement of Claim filed on 1 November 2000 (‘the Statement of Claim’).
2 The orders seek to attack paragraphs 15 to 18 of the Statement of Claim which plead a cause of action in negligence against the first defendant in the following terms:

’15. In the alternative, if, contrary to the matters pleaded in paragraphs 8 and 11 above the first defendant is found to have validly conveyed either lot 17 or lot 20 of section C in Deposited Plan 976412 to the second defendant or the Half Lot to itself, the first defendant was under a duty to each of the plaintiffs to exercise reasonable care in taking any steps to sell each of the said parcels of land pursuant to sections 602 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWSC 1058
Decision Date: 14 November 2000

CaseChat Overview and Summary

The plaintiffs, Mr and Mrs Hillebrand, brought a case against Penrith Council alleging negligence in the conveyance of their land, resulting in economic loss. The dispute was heard in the Supreme Court of New South Wales. The Council applied for summary dismissal of the claim on the grounds that the plaintiffs' cause of action had accrued prior to the commencement of the proceedings and was therefore statute-barred. The plaintiffs argued that their cause of action accrued when they became aware of the alleged negligence, not when the conveyance occurred.

The court was required to determine the point at which the plaintiffs' cause of action accrued, and whether the applicable limitation period had expired. The court also had to consider whether the Council's application for summary dismissal was appropriate in light of the potentially applicable limitation period. In considering these issues, the court examined the relevant statutory provisions and case law, including the relevant provisions of the Limitation Act 1969 (NSW) and the decision in *Giumelli v Giumelli* (1994) 34 NSWLR 104.

The court held that the plaintiffs' cause of action accrued when the conveyance occurred, not when they became aware of it. The court found that the plaintiffs' discovery of the alleged negligence did not extend the limitation period, as there was no fraud or concealment on the part of the Council. The court further held that the Council's application for summary dismissal was appropriate because the plaintiffs' cause of action was statute-barred. The court found that the plaintiffs had no reasonable course of action, as there was a clearly applicable limitation period that had expired.

The court dismissed the plaintiffs' claim with costs. The court found that the plaintiffs' cause of action was statute-barred, and that there was no basis for the plaintiffs to argue that the Council's application for summary dismissal was inappropriate. The court held that the Council was entitled to summary dismissal of the claim, and that the plaintiffs had no reasonable course of action available to them.

Orders