New South Wales
Court of Appeal
CITATION: Rockdale City Council v Micro Developments Pty Ltd [2008] NSWCA 128 HEARING DATE(S): 18 March 2008
JUDGMENT DATE:
5 June 2008JUDGMENT OF: Giles JA at 1; Hodgson JA at 119; Campbell JA at 120 DECISION: Appeal and cross-appeal dismissed. CATCHWORDS: Negligence - council misstates zoning of property - property developer purchases it - can not develop for home units - retains property - years later zoning changed and property developed - assessment of developer's loss - claimed money tied up in property and unable to carry out a series of developments - whether developer's retention of property was failure to mitigate- whether reduction in development activities due to money being tied up in property - open to trial judge to make broad assessment of loss - other issues concerning tax and interest as part of assessment. CATEGORY: Principal judgment CASES CITED: Banco de Portugal v Waterlow & Sons Ltd (1932) AC 452;
Bowen v Blair (1933) VLR 398;
Chappel v Hart [1998] HCA 95; (1998) 195 CLR 232;
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1933] FCA 259; 26 IPR 261;
Fink v Fink (1946) 74 CLR 127;
Jazabas Pty Ltd v City of Botany Bay Council [2000] NSWSC 58;
Malec v J C Hutton Pty Ltd (1990) 169 CLR 368;
Patel v Hooper & Jackson (1999) 1 WLR 1792;
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434;
Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5;
Sellers v Adelaide Petroleum NL (1992) 179 CLR 332;
Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2006) 4 DDCR 1;
State of New South Wales v Moss [2000] NSWCA 13; (2000) 54 NSWLR 536;
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422.PARTIES: Rockdale City Council - Appellant
Micro Developments Pty Ltd - RespondentFILE NUMBER(S): CA 40180/07 COUNSEL: R W Seton SC & G J Gemmell - Appellant/Cross-respondent
B W Rayment QC & R Scruby - Respondent/Cross-appellantSOLICITORS: McCabe Terrill, Lawyers - Appellant/Cross-respondent
Philip Sim & Associates - Respondent/Cross-appellantLOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): ED 50164/02 LOWER COURT JUDICIAL OFFICER: Bergin J LOWER COURT DATE OF DECISION: 22 December 2006; 14 March 2007 (interest and costs) LOWER COURT MEDIUM NEUTRAL CITATION: Micro Developments Pty Ltd v Rockdale City Council [2006] NSWSC 1400; Micro Developments Pty Ltd v Rockdale City Council, Bergin J, 14 March, unreported (interest and costs)
CA 40180/07
ED 50164/02Thursday 5 June 2008GILES JA
HODGSON JA
CAMPBELL JA
1 GILES JA: In November 1997 Micro Developments Pty Ltd (“Micro”), a property developer, purchased for development 147 Russell Avenue, Dolls Point (“the property”) in reliance upon the zoning Residential 2(c2) in a section 149 Certificate issued by Rockdale City Council (“the…
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- Case
- [2008] NSWCA 128
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether Micro Developments had failed to mitigate its loss by retaining the property for an extended period, and whether the trial judge had erred in assessing the loss by considering the reduction in Micro Developments' capacity to undertake other developments due to its capital being tied up in the subject property. The court also considered issues relating to the inclusion of tax and interest in the assessment of damages.
The Court of Appeal affirmed the trial judge's findings, holding that it was open to the judge to make a broad assessment of Micro Developments' loss. The court reasoned that the retention of the property was not necessarily a failure to mitigate, particularly given the subsequent change in zoning which ultimately allowed for development. Furthermore, the court accepted that the trial judge was entitled to consider the impact of the capital being tied up in the property on Micro Developments' ability to pursue other development opportunities, as this represented a real loss flowing from the Council's negligence. The court found no error in the trial judge's approach to the assessment of damages, including the consideration of tax and interest.
Consequently, both the appeal by Rockdale City Council and the cross-appeal by Micro Developments Pty Ltd were dismissed.
Orders
Orders of the court
Appeal and cross-appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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