Lym International Pty Ltd v Marcolongo

The appeal concerned a dispute between Lym International Pty Ltd (the Developer) and Mr Marcolongo, concerning building and construction issues. The case involved claims relating to the Conveyancing Act 1919 and the Environment Planning and Assessment Act 1979, as well as principles of negligence and agency. The court was required to determine whether the Developer's decision to use a particular support system constituted "doing something" in relation to land, whether it removed support from adjacent land, and whether it was done without reasonable care. Additionally, the court considered whether a party was a "contributing party" under the Environment Planning and Assessment Act and the principles of causation under the Civil Liability Act 2002.

The court also examined issues of agency, specifically whether one party contracted as an agent for a third party or in its own capacity. The admissibility and use of post-contractual conduct for ascertaining the terms of an oral or partly oral agreement were central to the contractual interpretation arguments. This included whether such conduct could be used as an admission by a party to the litigation or by a non-party acting with authority, and the impact of the Evidence Act 1995 on these principles. The court also addressed the availability of the Jones v Dunkel inference in circumstances where the agency of a missing witness was disputed.

The court reasoned that post-contractual conduct could be used to ascertain the terms or subject matter of an agreement that was wholly or partly oral, irrespective of whether that conduct constituted an admission. This principle applied even when the conduct was not an admission, provided it was relevant to determining the terms of the agreement. The court also considered the principles of causation under section 5D of the Civil Liability Act 2002, including whether a failure to warn could be causative of loss only if the warning would have been acted upon to prevent the loss, and the appropriateness of attributing liability to a party who created the preconditions for another's negligence. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.