Smith v Eurobodalla Shire Council

The appeal concerned a dispute between purchasers of a house and the Eurobodalla Shire Council, along with the builder. The purchasers alleged that the house suffered from substantial building defects, including issues with its foundations and the design of the concrete slab. The purchasers sought to establish that both the Council and the builder owed them a duty of care.

The primary legal issues before the court were whether the Council and/or the builder owed a duty of care to the purchasers, whether the trial judge had erred in factual findings regarding the presence of fill under the house slab, and whether the Council's inspections had been negligently performed. Further issues included whether the trial judge had erred in excluding certain evidence and in finding that there was no evidence quantifying the purchasers' damages.

The Court of Appeal found that the trial judge had erred in several respects, leading to the setting aside of the original orders. The Court determined that a retrial was necessary on all issues to address the errors identified, particularly concerning the factual findings and the assessment of damages. The Court also addressed the admissibility of evidence and the scope of the duty of care owed by the Council.

Consequently, the Court ordered a retrial on all issues, with the costs of the first trial to be determined by the judge presiding over the second trial. The respondents were ordered to pay the appellants' costs of the appeal, with a potential certificate under the Suitors' Fund Act 1951.