Ritchie & Anor v Mosman Municipal Council [2000] NSWSC 143

Reported Decision : 107 A Crim R 187

New South Wales Supreme Court

CITATION : Ritchie & Anor v Mosman Municipal Council [2000] NSWSC 143 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12628/96 HEARING DATE(S) : 6-7 March 2000 JUDGMENT DATE : 10 March 2000

PARTIES : Malcolm Dundas Ritchie and Jan Ritchie v Mosman Municipal Council JUDGMENT OF : Michael Grove J at 1

COUNSEL : N. Cotman SC (Plaintiff) M.T. McCulloch (Defendant) SOLICITORS : Searle & Associates (Plaintiff) Phillips Fox (Defendant) CATCHWORDS : Negligence - Content of Communication to Another - Whether Mis-statement in Fact - Reliance - Causation - Local Government Body - Liability LEGISLATION CITED : Trade Practices Act Fair Trading Act Mid Density Development Pty Ltd v Rockdale Municipal Council 1992 39 FCR 579 Somasundaram v Melchior & Co 1988 1 WLR 1394 CASES CITED : Walpole v Partridge & Wilson 1994 QB 106 Perre v Apand Pty Ltd 1999 164 ALR 606 Esanda Finance Corp v Peat Marwick Hungerford 1997 188 CLR 241 Pyrenees Shire Council v Day 1998 192 CLR 330 DECISION : Judgment for Defendant

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 10 March 2000

12628/96 - MALCOLM DUNDAS RITCHIE and JAN RITCHIE v MOSMAN COUNCIL

JUDGMENT 1 HIS HONOUR : The plaintiffs are the owners of a residential property situate within the municipality of Mosman. In 1989 they contracted with a builder (Bryson) to execute work on that property. Dispute arose between them. The claim advanced in the current action can be described by reference to chronology, much of which is extracted from the second defendant's (Mosman Council or the Council) file, No 121/88 and annexures to an affidavit of Andrew Capelin, solicitor, sworn 10 September 1998 which were, by consent, received in evidence. 2 The sum payable by the plaintiffs to Bryson pursuant to the contract was $200,000. Progress payments totalling $190,000 were made. Claims for additional work were made and anticipated and the plaintiffs were seeking completion and rectification of some of the works when the dispute arose. 3 In about May 1990, Bryson sought a further progress payment which was declined but it was agreed between him and the plaintiffs that payment would be made when the Council's building inspector passed the work as satisfactory. 4 Requests for progress payment continued to be made during the months until December 1990 but the plaintiffs withheld payment, seeking first rectification of allegedly defective work. In December, Bryson sued the plaintiffs in the District Court. Eventually his claim was articulated in an Amended Statement of Liquidated Claim filed on 11 April 1995 which included particulars of the agreement to make progress payments upon the obtaining of a satisfactory final inspection of the works by the Council. It further particularized that such a satisfactory inspection had taken place on 17 August 1990. On 3 May 1995, the plaintiffs filed a Defence to this pleading responding, inter alia, that they denied that the Council had given final approval to the works. 5 In the meantime, pursuant to District Court Rules, the matter had been referred for inquiry and report to a referee. Hearing before the referee took place initially on 15 and 16 November 1994 and was then adjourned. Obviously, contradiction about satisfactory inspection, as is manifest in the abovementioned later pleadings, had become an issue then. The content of some correspondence on the Council file should be recited. Under date 29 November 1994 there is a letter to the Council from Bryson: "Due to a dispute which I am involved currently being heard in the National Disputes Centre. I require written documentation of when a renovation done by me to 95 Middle Head Road Mosman was officially passed by Mosman Council. My records say May 1990. Could you confirm this date with your records. If able I do require this information quite urgently. " 6 There is also a letter from Bryson's solicitors, Constantine Christopher and Associates dated 2 December 1994 the text of which is: "We act for Mr Bryson, the Builder in respect of the above Building Application, and refer to telephone conversation on 30 November 1994 between Mr Christopher and Helen Strachan. We confirm our client's instructions that he forwarded to your Council a written request for information in respect of the completion of the works pursuant to the above Building Application relating to the above property and Helen Strachan's advices that there was no record of receipt of our client's request. We shall be pleased if you were to provide us with your written advices as to the date(s) of inspection by Council of the works made pursuant to the above Building Application and, in particular, the final inspection in respect of such works. Copies of any council records in respect of inspections, particularly the final inspection, would be greatly appreciated. As the information requested is required urgently, your co-operation and assistance would be greatly appreciated. We undertake to pay the reasonable fees of Council, if any, for the information requested and await your urgent advices." 7 The Council despatched a reply dated 13 December 1994. This letter is at the centre of current litigation and the text of it is: "Constantine Christopher & Associates DX 1235 SYDNEY