COUNCIL OF THE MUNICIPALITY OF WOOLLAHRA v SVED and ANOR [1998] NSWCA 63

COUNCIL OF THE MUNICIPALITY OF WOOLLAHRA vy SVED and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P and SHELLER JA 18 May 1998, 24 July 1998 [1998] NSWCA 63

Abuse of process — point abandoned at earlier stage of trial — effect of abandonment on course of trial — party seeking to raise point on appeal — whether abuse of process

Appeal and New Trial — Notice of Appeal struck out as to part — competency of remainder of Notice of Appeal

In 1986 builders named Di Blasio built a house at Vaucluse for Mr and Mrs Goddard. The following year the property was sold by auction to Mr and Mrs Sved for $1,820,000, who completed in reliance on an assurance by the appellant ("the Council") that a certificate under s317A would issue. The 317A certificate was not to hand prior to completion, but was issued by the Council eight days later. The Sveds moved into occupation, and within a short time defects in the building became apparent.

The Sveds brought proceedings in the Construction List in 1992, claiming damages from each of the Council, Mr and Mrs Goddard and Messrs Di Blasio. The Sveds' claims against the vendors and the builders were dismissed by Giles J (as he then was). The principal claim litigated was by the Sveds against the Council. Giles J held that the Council was in breach of its duty of care and Mr and Mrs Sved were entitled to recover from the Council the loss caused by their purchase of the property. Giles J determined that damages should be assessed by reference to the cost of rectification, as argued by the Council. However, it was agreed that the assessment of damages should be left for a later occasion.

After the resolution of an appeal in favour of the Sveds and further interlocutory proceedings, the matter came before Giles CJ Comm D regarding the right to recover damages for defects other than the drainage system. His Honour considered that there was "force" in the submission of Mr and Mrs Sved that the Council's case in this respect was not open to it due to the manner in which argument had proceeded at first instance. However, he found it unnecessary to decide the point, because in any event Mr and Mrs Sved were entitled to the cost of rectifying all the defects. Final judgment and orders were given on 19 February 1998, in favour of the plaintiffs against the Council.