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Court of Appeal
New South Wales
Case Title: Wood v Balfour Medium Neutral Citation: [2011] NSWCA 382 Hearing Date(s): 25 and 26 October 2011 Decision Date: 09 December 2011 Jurisdiction: Before: Giles JA at [1]
Macfarlan JA at [9]
Meagher JA at [151]Decision: (1) Appeal allowed in part.
(2) Set aside the order for costs that the primary judge made on 20 August 2010 and in lieu thereof order that the appellants pay on the ordinary basis the respondents' costs of the proceedings at first instance.
(3) Appeal otherwise dismissed.
(4) Order the appellants to pay 75 per cent of the respondents' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: TORTS - deceit - sale of residential property - property had major termite damage which was not patent and which compromised its structural integrity - prior to contemplating sale vendors had undertaken work to repair and cover limited damage - purchasers alleged that the work was done to conceal major damage of which vendors aware and that non-disclosure of that damage at the time of sale amounted to a representation by the vendors that there was no serious termite damage to the property - held that vendors unaware of major damage and did not act dishonestly - whether necessary in considering purchasers' claimed remedy in deceit to consider whether vendors made a representation
APPEAL - application on appeal to adduce further evidence of discovery made after hearing at first instance - appellants purchased property that had major termite damage which was not patent and which compromised its structural integrity -purchasers and their legal representatives made deliberate decision to leave damaged timber beam in situ pending the hearing at first instance - prior treatment of beam only became apparent when beam removed after hearing at first instance - whether requirement of reasonable diligence satisfied
Legislation Cited: Supreme Court Act 1970
Cases Cited: AIC Ltd v ITS Testing Services (UK) Ltd [2007] 1 All ER Comm 667
Akins v National Australia Bank (1994) 34 NSWLR 155
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1
Anderson v Daniels (1983) NSW Conv R 55-144
Armstrong v Strain [1951] 1 TLR 856
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592
Calderbank v Calderbank [1975] 3 All ER 333
Coastwide Steel & Metal Work Pty Ltd v Douglas [2008] NSWCA 330
Council of the City of Greater Wollongong v Cowan [1955] HCA 16; 93 CLR 435
Dare v Pulham…
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- AGLC
- Wood v Balfour [2011] NSWCA 382
- Case
- [2011] NSWCA 382
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the vendors had made a representation regarding the absence of serious termite damage, and if so, whether this representation was deceitful. Additionally, the court considered an application by the purchasers to adduce further evidence discovered after the first instance hearing, specifically concerning the prior treatment of a damaged timber beam which had been deliberately left in situ by the purchasers and their legal representatives. The court had to determine if the purchasers had satisfied the requirement of reasonable diligence in relation to this new evidence.
The Court of Appeal found that the vendors were unaware of the major termite damage and had not acted dishonestly. Consequently, the court held that the purchasers' claim in deceit could not succeed. Regarding the application to adduce further evidence, the court determined that the purchasers had not demonstrated reasonable diligence in their handling of the damaged timber beam prior to the first instance hearing.
The appeal was allowed in part. The order for costs made by the primary judge was set aside, and the purchasers were ordered to pay the vendors' costs of the proceedings at first instance on the ordinary basis. The appeal was otherwise dismissed, and the purchasers were ordered to pay 75 per cent of the vendors' costs of the appeal.
Orders
Orders of the court
(1) Appeal allowed in part.
(2) Set aside the order for costs that the primary judge made on 20 August 2010 and in lieu thereof order that the appellants pay on the ordinary basis the respondents' costs of the proceedings at first instance.
(3) Appeal otherwise dismissed.
(4) Order the appellants to pay 75 per cent of the respondents' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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