CBRE (V) Pty Ltd v City Pacific Ltd (in liq) [2022] NSWCA 54

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: CBRE (V) Pty Ltd v City Pacific Ltd (in liq) [2022] NSWCA 54 Hearing dates: 24, 25 March 2022 Decision date: 11 April 2022 Before: Bell CJ at [1]; Leeming JA at [2]; Brereton JA at [95]. Decision: 1. Appeal allowed. 2. Set aside the judgment made on 9 August 2021, and orders 1 and 2 made on 22 March 2022, and in lieu thereof, order that the proceedings be dismissed with costs. 3. The respondents pay the appellants' costs of the appeal. Catchwords: LIMITATION PERIODS – plaintiffs were parent company and wholly owned subsidiary – parent company entered into option to acquire land following receipt of valuation – valuation negligent and misleading and deceptive – parent company nominated subsidiary to hold the land – parent company paid $11.1m towards purchase price – sale never proceeded – both companies sued valuers 8 years later – trial judge held that subsidiary's causes of action in negligence and for misleading and deceptive conduct were statute barred, but parent's causes of action in negligence and for misleading and deceptive conduct were not statute-barred – trial judge found parent implicitly lent to its subsidiary the funds which were transferred to vendor, such that cause of action only accrued when loan became unable to be repaid – significance of corporate relationship between parent company and wholly owned subsidiary – circumstances when implicit loan and obligation to repay may be inferred – significance of contemporaneous documents – appeal allowed and judgment entered in favour of valuers MISLEADING AND DECEPTIVE CONDUCT – significance of disclaimers in valuations – significance of clause permitting use of valuation only by vendor – significance of plaintiffs' failure to adduce testimonial evidence of reliance on valuation – documents suggesting transaction entered into for extraneous reasons – documents suggesting flaws in valuation appreciated at time – whether requisite causal relation between valuation and payments made out – if necessary, appeal also allowed on basis that causation not established Legislation Cited: Civil Liability Act 2002 (NSW), s 5D(2) Corporations Act 2001 (Cth), s 601FS Evidence Act 1995 (NSW), s 183 Trade Practices Act 1974 (Cth), s 82 Wrongs Act 1958 (Vic), s 51 Cases Cited: ABN Amro Bank NV v Bathurst Regional Council (2014) 224 FCR 1; [2014] FCAFC 65 Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470; [1993] FCA 358 Australian Executor Trustees (SA) Ltd v Kerr [2021] NSWCA 5 Bank of England v Cutler [1908] 2 KB 208 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Cone v Burch [2010] NSWCA 168 Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 Hunt & Hunt Lawyers v Mitchel Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 Israel v Foreshore Properties Pty Ltd (1980) 30 ALR 631 Martin v Martin (1959) 110 CLR 297; [1959] HCA 62 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 O3 Capital Pty Ltd v WY Properties Pty Ltd (2016) 49 WAR 517; [2016] WASCA 82 Progressive Pod Properties Pty Ltd v A & M Green Investments Pty Ltd [2012] NSWCA 225 Salomon v Salomon & Co Ltd [1897] AC 22 Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Texts Cited: K Mason, J Carter and G Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed LexisNexis, 2021) Category: Principal judgment Parties: CBRE (V) Pty Ltd (First Appellant) Christopher Nicodimou (Second Appellant) City Pacific Ltd (in liq) (First Respondent) Martha Cove Marina Pty Ltd (in liq) (Second Respondent) Representation: Counsel: N C Hutley SC, D R Sulan, A Avery-Williams (Appellants) J C Giles SC, S H Hartford-Davis, B G Curtin (Respondents)