Mid Density Developments Pty Ltd v Rockdale Municipal Council

MID DENSITY DEVELOPMENTS PTY LIMITED v. ROCKDALE MUNICIPAL COUNCIL
No. G7 of 1993
FED No. 590
Number of pages - 16
Negligence
(1993) 116 ALR 460
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COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow(1), Hill(1) and Drummond(1) JJ

CATCHWORDS

Negligence - misstatement - municipal council - issue of certificates - reliance - statutory defence - "good faith".

Environmental Planning and Assessment Act 1979 (N.S.W.), s. 149

Local Government Act 1919 (N.S.W.), s. 582A

L. Shaddock and Associates Proprietary Limited v The Council of the City of Parramatta (No. 1) (1981) 150 CLR 225

San Sebastian Proprietary Limited v Minister Administering The Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340

HEARING

SYDNEY, 27 August 1993

#DATE 27:8:1993

Counsel and solicitors
for the appellant: Mr T.F. Bathurst QC

and Mr I.M. Jackman instructed by Dobes and Andrews.

Counsel and solicitors
for the respondent: Mr A.R. Emmett QC

and Mr M. McCulloch instructed by Phillips Fox.

ORDER

THE COURT ORDERS THAT:

The parties bring in Short Minutes of Order to give effect to the Reasons for Judgment delivered today.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

GUMMOW, HILL, DRUMMOND JJ The appellant carries on the business of property development.This includes the acquisition and refurbishment of existing buildings,with or without the construction of new buildings, subdivision and sale. On 19 October 1990, the appellant entered into a written agreement ("the Contract") with DHA Management Pty Ltd ("the vendor"). The Contract was for the purchase by the appellant for $2m. of a property known as 31-39 Henderson Street, Turrella, in the State of New South Wales ("the Land"). The Land is situated within the Municipality of Rockdale. The respondent, the Council of that municipality, is,pursuant to s. 22 of the Local Government Act 1919 (N.S.W.) ("the Local Government Act"), a body corporate with all the powers of bodies corporate, for the purposes of and subject to the provisions of that Act.

1. The primary Judge dismissed the appellant's claims. His Honour's judgment is reported: (1992) 39 FCR 579.

2. One of the issues on the present appeal to this Court is whether the respondent is a trading corporation so as to attract the operation of s. 52 of the Trade Practices Act 1974 ("the T.P. Act"). Another issue concerns the liability of the respondent to the appellant in negligence, for information supplied in circumstances outlined below.

3. We turn first to consider the claim in negligence.

4. At the time of entry into the Contract, there were buildings on the Land but these were generally in a poor state, save for a large building at the front of the parcel. This had good potential for refurbishment. The appellant proposed to subdivide and sell two smaller lots to adjoining owners to provide a cash flow for the consummation of its proposals for development of the balance of the Land. This involved the refurbishment of certain of the…