Lorenzato v Burwood Council [2020] NSWSC 1659

Supreme Court New South Wales

Medium Neutral Citation: Lorenzato v Burwood Council [2020] NSWSC 1659 Hearing dates: 10-21 August 2020 Date of orders: 23 November 2020 Decision date: 23 November 2020 Jurisdiction: Common Law Before: Fagan J Decision: (1) Judgment for the plaintiff against the first defendant in the sum of $1,274,000 together with interest up to judgment in accordance with s 100 of the Civil Procedure Act 2005 and Practice Note SC Gen 16 in the amount of $726,171.06 comprising (a) interest of $697,324.62 on $1,219,000 from 12 August 2011 and (b) interest of $28,846.44 on $55,000 from 1 March 2012. (2) The first defendant is to pay the plaintiff's costs of the proceedings against it. (3) Judgment for the plaintiff against the second defendant in the sum of $1,219,000 together with interest up to judgment in accordance with s 100 of the Civil Procedure Act 2005 and Practice Note SC Gen 16 in the amount of $697,324.62 from 12 August 2011. (4) The second defendant is to pay the plaintiff's costs of the proceedings against him. (5) The cross-claim by the second defendant against John Lukas is dismissed. (6) The second defendant is to pay the cross defendant's costs of the cross-claim. (7) The parties have liberty to apply to resolve any issue concerning the calculation of interest and to obtain additional orders quantifying interest if necessary. Catchwords: CONVEYANCING – vendor and purchaser – whether council stormwater pipe under property would have given rise to a right of rescission under rule in Flight v Booth – whether the pipe so affected the subject matter that it might reasonably be supposed that the purchaser might not have contracted at all TORTS – negligent misstatement – breach of duty by local council issuing certificate under s 149 Environmental Planning and Assessment Act – misstatement as to council policy resolution for acquisition of easements over property – purchaser's reliance on certificate – defences under s 43A of the Civil Liability Act and s 733 of the Local Government Act TORTS – negligent misstatement – vendor's breach of duty in answering requisitions about existence of council stormwater pipe under property – reliance by purchaser through conveyancing solicitor – whether plaintiff would have been entitled to rescind if correct answers given TORTS – professional negligence – whether solicitor exercised reasonable care and skill in obtaining instructions for answers to requisitions – negligence not established TORTS – private nuisance by public authority – interference with use and enjoyment of land – property flooded by overland flows of stormwater – "good faith" – necessity to prove negligence of council – defence under s 733 Local Government Act 1993 – nuisance established – damages VALUATION – land – value impaired by local council stormwater pipe – necessity to create an easement and relocate pipe – necessity to alter pipe connections external to the land – difficulty and uncertainty of dealing with council Legislation Cited: Civil Claims Act 2002 (NSW) Conveyancing Act 1919 (NSW) Conveyancing (Sale of Land) Regulation (2010) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) Government Information (Public Access) Act 2009 (NSW) Interpretation Act 1987 (NSW) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Local Government Act 1906 (NSW)(rep) Local Government Act 1919 (NSW)(rep) Local Government Act 1993 (NSW) Municipalities Act 1867 (NSW)(rep) Municipalities Act 1897 (NSW)(rep) Roads Act 1993 (NSW) Cases Cited: Alison Cobden-Jones v Woollahra Municipal Council [2002] NSWCA 382 Allen v Gulf Oil Refining Ltd (1981) AC 1001 Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46; (2005) 223 CLR 660 Batey v Gifford (1997) 42 NSWLR 710 Bonaccorso v Strathfield Municipal Council [2003] NSWSC 408 Boland v Yates Property Corp Pty Ltd [1999] HCA 64 Cobden-Jones v Woollahra Municipal Council [2002] NSWLEC 2; (2002) 118 LEGRA 41 Curtis v Harden Shire Council [2014] NSWCA 314 Derry v Peek (1889) 14 App Cas 337 Flight v Booth (1834) 1 Bing (NC) 370; (1834) 131 ER 1160 Hawthorn Corporation v Kannuluik [1906] AC 105 Gales Holdings Pty Limited v Tweed Shire Council [2013] NSWCA 382 Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12 Kannane v Demian Developments Pty Ltd [2005] NSWSC 1193 Kenny & Good Pty Ltd v MGICA [1999] HCA 25; 199 CLR 413 L Shaddock and Associates Pty Ltd v The Council of the City of Parramatta (No. 1) [1981] HCA 59; (1981) 150 CLR 225 Marcic v Thames Water Utilities Ltd [2002] QB 929 Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 Mid Density Developments Pty Ltd v Rockdale Municipal Council [1993] FCA 408; (1993) FCR 290 Owners Corporation SP 46510 v Tan [2020] NSWSC 1564 Raphael Shin Enterprises Pty Limited v Waterpoint Shepherds Bay Pty Limited [2014] NSWSC 743 Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Rickard v Allianz Australia Insurance Ltd [2009] NSWSC 1115 Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373 Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418 Strike Australia Pty Ltd v Data Base Corporate Pty Ltd [2019] NSWCA 205 Vale v Sutherland [2009] HCA 26 Category: Principal judgment Parties: Elisa Lorenzato (plaintiff) Burwood Council (first defendant) Michael Della-Franca (second defendant) John Lukas (cross-defendant) Representation: Counsel: R Carey (plaintiff) M L Wright SC with D Robertson (first defendant) J A Trebeck (second defendant) J Gooley (cross-defendant)