(1) Judgment for the plaintiff against the first defendant in the sum of $1,274,000 together with interest up to judgment in accordance with s 100 of the Civil Procedure Act 2005 and Practice Note SC Gen 16 in the amount of $726,171.06 comprising
(a) interest of $697,324.62 on $1,219,000 from 12 August 2011 and
(b) interest of $28,846.44 on $55,000 from 1 March 2012.
(2) The first defendant is to pay the plaintiff’s costs of the proceedings against it.
(3) Judgment for the plaintiff against the second defendant in the sum of $1,219,000 together with interest up to judgment in accordance with s 100 of the Civil Procedure Act 2005 and Practice Note SC Gen 16 in the amount of $697,324.62 from 12 August 2011.
(4) The second defendant is to pay the plaintiff’s costs of the proceedings against him.
(5) The cross-claim by the second defendant against John Lukas is dismissed.
(6) The second defendant is to pay the cross defendant’s costs of the cross-claim.
(7) The parties have liberty to apply to resolve any issue concerning the calculation of interest and to obtain additional orders quantifying interest if necessary.
Catchwords:
CONVEYANCING – vendor and purchaser – whether council stormwater pipe under property would have given rise to a right of rescission under rule in Flight v Booth – whether the pipe so affected the subject matter that it might reasonably be supposed that the purchaser might not have contracted at all
TORTS – negligent misstatement – breach of duty by local council issuing certificate under s 149 Environmental Planning and Assessment Act – misstatement as to council policy resolution for acquisition of easements over property – purchaser’s reliance on certificate – defences under s 43A of the Civil Liability Act and s 733 of the Local Government Act
TORTS – negligent misstatement – vendor’s breach of duty in answering requisitions about existence of council stormwater pipe under property – reliance by purchaser through conveyancing solicitor – whether plaintiff would have been entitled to rescind if correct answers given
TORTS – professional negligence – whether solicitor exercised reasonable care and skill in obtaining instructions for answers to requisitions – negligence not established
TORTS – private nuisance by public authority – interference with use and enjoyment of land – property flooded by overland flows of stormwater – “good faith” – necessity to prove negligence of council – defence under s 733 Local Government Act 1993 – nuisance established – damages
VALUATION – land – value impaired by local council stormwater pipe – necessity to create an easement and relocate pipe – necessity to alter pipe connections external to the land – difficulty and uncertainty of dealing with council
[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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AGLC
Lorenzato v Burwood Council [2020] NSWSC 1659
Case
[2020] NSWSC 1659
Decision Date
CaseChat Overview and Summary
The case of Lorenzato v Burwood Council involved the plaintiff, Lorenzato, who sought to rescind a contract of sale for a property due to the presence of a stormwater pipe beneath it. Lorenzato also claimed damages for various torts, including negligent misstatement and private nuisance, against both the vendor and the Burwood Council. The High Court of Australia was tasked with determining whether the stormwater pipe affected the contract's subject matter to the extent that rescission might be justified, whether the council's certificate under the Environmental Planning and Assessment Act constituted a negligent misstatement, and if the council's actions constituted a private nuisance. The court also had to assess whether the vendor or the solicitor was negligent in providing information regarding the stormwater pipe.
The legal issues before the court included whether the existence of the stormwater pipe would have given rise to a right of rescission under the rule in Flight v Booth, whether the council's misstatement in its certificate constituted a breach of duty, and whether the council's actions amounted to a private nuisance. The court had to determine the applicability of statutory defences and the standard of care expected from the solicitor in obtaining information for the requisitions. Additionally, the court examined whether the council's actions could be considered a nuisance and, if so, whether the council was liable for damages.
The High Court held that the stormwater pipe did not affect the contract's subject matter to a degree warranting rescission. The council's certificate did not constitute a negligent misstatement as it was not within the scope of the duty owed to the plaintiff. The council was not found liable for private nuisance as its actions were in good faith and did not involve negligence. The court also ruled that the solicitor was not negligent in obtaining information for the requisitions. Lorenzato was awarded damages for the private nuisance caused by the council.
The court ordered the Burwood Council to pay Lorenzato damages for the private nuisance caused by the stormwater pipe and dismissed all other claims. The decision clarified the legal standards for rescission, negligent misstatement, and private nuisance in the context of property transactions and interactions with local councils.