Loulach Developments Pty Ltd v Roads and Maritime Services

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Loulach Developments Pty Ltd v Roads and Maritime Services [2019] NSWSC 438

Hearing dates:

22, 23, 24 and 25 October 2018

Decision date:

18 April 2019

Jurisdiction:

Common Law

Before:

Leeming JA

Decision:

1.   Judgment for the defendant.

 

2.   In the event that either party seeks some special order as to costs, the parties are to supply agreed short minutes of order, or alternatively the orders for which they contend and submissions and any evidence in support, within 14 days of today.

 

3.   In the absence of any application under order 2 above being received by my Associate within 14 days of today, the plaintiff is to pay the defendant’s costs.

 4.   The exhibits are to be returned.

Catchwords:

LIMITATION PERIODS – negligence – when causes of action first accrued – developer incurred material wasted expense, but only sued for lost profit – wasted expense incurred more than six years before proceedings commenced, at time when profit was prospective – significance of plaintiff confining claim to lost profits – significance of interest sought to be protected by common law – cause of action on first representation statute barred – defendant failed to establish plaintiff incurred material loss from second representation prior to six years before proceedings commenced – cause of action on second representation not statute-barred

 

NEGLIGENCE – duty – novel duty of care – pure economic loss to developer from negligent misstatement by statutory authority to council – significance of assumption of responsibility, reliance and vulnerability – whether duty inconsistent with or sat ill with statutory obligations applicable to authority – no duty found in relation to second representation

 

NEGLIGENCE – duty – scope of duty – first representation made directly by statutory authority to developer – whether representation went beyond question asked – whether representation outside scope of duty of care – first representation within scope of duty of care

 

NEGLIGENCE – breach – whether at time representations were made there was extant proposal to widen or realign road – significance of historical documents – significance of failure to give testimonial evidence – significance of concession that proposal had at some stage been abandoned – breach made out

 

NEGLIGENCE – causation – whether developer had established it would have acted differently had there been no breach – causation not established

 

NEGLIGENCE – special statutory power – whether statutory authority was exercising special statutory power when responding to council – Civil Liability Act 2002 (NSW) s 43A considered – s 43A inapplicable

  NEGLIGENCE – damages – plaintiff’s case depended on “Desired Development” being built – damages calculated by reference to hypothetical profit calculations of Desired Development and actual development – whether plaintiff established any chance of Desired Development being approved – no fall-back case for wasted expenditure – damages case not made out

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 43, 43A, Part 4
Commonwealth Aid Roads Act 1969 (Cth)
Environmental Planning and Assessment Act