Sutherland Shire Council v Heyman [1985] HCA 41

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Deane JJ. Sutherland Shire Council v Heyman [1985] HCA 41

ORDER Appeal allowed. In accordance with the condition imposed on the grant of special leave, order that the costs of proceedings in this Court be paid by the appellant. Order that the judgment and order of the Court of Appeal (other than the order for costs) be set aside. In lieu thereof, order that the appeal from the District Court be allowed, that the judgment of the District Court be set aside and that there be judgment for the defendant in the action and that the defendant pay the plaintiffs' costs.

Cur. adv. vult.

The following written judgments were delivered:—

1985, July 4 Gibbs C.J.

This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales [25] , affirming a decision of Judge Robson given in favour of the respondents, the plaintiffs in an action brought against the appellant, the Council of the Shire of Sutherland ("the Council"). The appeal raises for decision the important questions whether a local authority in New South Wales which gives approval to the erection of a dwelling house owes to persons who subsequently become the owners and occupiers of the house a duty to take reasonable care to ensure that the building is constructed in conformity with the plans and specifications which it has approved, and what duty, if any, it owes to such persons in deciding whether to make inspections, and in carrying out such inspections as are made, during the construction of the building. The special leave to appeal which was granted by this Court was limited to prevent the appellant from raising a further question regarding the limitation period in an action of this kind.

1. [1982] 2 N.S.W.L.R. 618.

In January 1975 the respondents purchased a house at 14 Bridgeview Road, Engadine, in the Shire of Sutherland, and went into occupation. The land on which the house was built fell very steeply away from the front to the rear of the allotment, and the house was supported by nine brick piers and three steel columns, as well as by the brick walls of a laundry which was underneath the rear of the house. Some of the ground in which the piers and columns stood consisted of unstable rock and soil, and this fact made it particularly necessary that the foundations of the piers and columns should be secure. In fact, some of the footings were quite inadequate; a number of them were founded on material which did not afford them proper support and they allowed the piers and columns resting on them to subside, causing damage to the house — particularly distortion of beams and supports, and cracking in many places. The respondents first became aware of the damage during 1976, and then necessarily incurred expense to remedy the damage already done and to strengthen the foundations. The judgment which they obtained represented the amount of this expense plus interest.