SULLIVAN v DAN [1998] NSWCA 292

SULLIVAN v DAN SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, MEAGHER JA and SHELLER JA 19 February, 22 April 1998 [1998] NSWCA 292

FACTS

The appellants purchased land at auction and then engaged the respondents to settle the conveyance for them. The respondents failed to ascertain that the land was subject to outstanding conditions pertinent to the Development Approval with the consequence that the owner of the land was liable to certain criminal sanctions and civil liabilities. The appellants sued for breach of contract arsing from their retainer and in tort for damages arising from breach of duty of care in relation to settlement of the contract.

The vendors of the land never informed the appellants or the respondents of the outstanding matters in relation to the Development Approval, neither in the contract for sale itself nor in their answer to the respondents requisitions on title. The vendors also informed the Council during the course of the conveyance itself that they were attending to the demands of the Council in relation to the outstanding works to be carried out to meet the Development Approval. This they did not do. They then assured the respondents that there were no matters outstanding with the Council.

In the Court below, his Honour followed Carpenter v McGrath (1996) NSW Conv R 56,052. He found the existence of the unfulfilled conditions did not amount to a defect in title.

The appellants put a new case on appeal under the Trade Practices Act.

The issue on appeal is whether the appellant should be allowed to prosecute this new case.

HELD

(1) Meagher JA, Mason P agreeing: the case the appellant seeks to put forward on appeal is an entirely new cause of action, claiming different remedies, opening possibilities not open to the trial judge and if commenced now under the Trade Practices Act, statute barred.