Rennie Golledge Pty Ltd v Ballard

The case of *Rennie Golledge Pty Ltd v Ballard* involved an appeal to the Court of Appeal of New South Wales concerning a surveyor's alleged negligence. The dispute arose when the respondents, the Ballards, engaged the appellant, Rennie Golledge Pty Ltd, to provide surveying services for the construction of dual dwellings on flood-prone land. The Ballards alleged that the survey plan provided by Rennie Golledge contained incorrect benchmark levels, leading to the construction of houses at an inappropriate height. This resulted in the buildings potentially requiring demolition as they did not comply with the approved plans and a section 88B instrument affecting the property, and consequently, an occupation certificate was refused. The Ballards claimed against Rennie Golledge for breach of contract, negligence, and misleading and deceptive conduct.

The primary legal issues before the court were whether contributory negligence could be considered when assessing proportionate liability under section 35 of the *Civil Liability Act 2002* (NSW), and whether the plaintiffs' own alleged negligence could establish proportionate liability. The court was also required to determine if the builders could be considered concurrent wrongdoers with the surveyor, and if a plaintiff could be proportionately liable for their own loss.

The Court of Appeal held that contributory negligence does not fall within the definition of "concurrent wrongdoer" for the purposes of proportionate liability under the *Civil Liability Act 2002*. The legislative policy behind proportionate liability is to apportion responsibility among multiple wrongdoers who have caused the same damage, not to reduce a defendant's liability based on the plaintiff's own contribution to their loss. The court distinguished between a "concurrent wrongdoer" and a plaintiff who has negligently contributed to their own loss, concluding that the latter is not a concurrent wrongdoer. Furthermore, the court found insufficient evidence to establish that the builders were concurrent wrongdoers, as there was no realistic prospect of proving a breach of duty by them or that their actions caused the damage.

The Court of Appeal granted leave to appeal, directed the applicant to file a Notice of Appeal, but ultimately dismissed the appeal. The applicant was ordered to pay the respondents' costs of the appeal.