Exchanges P/L v State of New South Wales [2000] NSWSC 59

New South Wales Supreme Court

CITATION : Exchanges P/L v State of New South Wales [2000] NSWSC 59 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20488/98 HEARING DATE(S) : 2 February 2000 JUDGMENT DATE : 22 February 2000

Exchanges Pty Limited (First Plaintiff)

PARTIES : Irraydda Pty Limited (Second Plaintiff)

State of New South Wales (Defendant) JUDGMENT OF : Master Harrison

Mr R J Darke (Plaintiffs) COUNSEL : Mr M J Leeming (Defendant) Blake Dawson Waldron (Plaintiffs)

SOLICITORS : Ms R Fitzhardinge Legal Services Branch Department of Urban Affairs & Planning (Defendant) CATCHWORDS : Strike out paragraphs statement of claim LEGISLATION CITED : Supreme Court Rules Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) CASES CITED : Dey v Victoria Railway Commissioners (1948-49) 78 CLR General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 DECISION : See para 25

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 22 FEBRUARY 2000

20488/98 - EXCHANGES PTY LIMITED & ANOR v STATE OF NEW SOUTH WALES

JUDGMENT (Strike out paragraphs of statement of claim)

1 MASTER: By notice of motion filed 22 November 1999 the defendant/applicant seeks that paragraphs 16 and 17 of the amended statement of claim be struck out pursuant to Part 15 r 26 or alternatively Part 13 r 5 of the Supreme Court Rules (SCR). The defendant relied on the affidavits of Rachael Fitzhardinge sworn 24 November 1999 and 25 January 2000. The plaintiff relied on an affidavit of Alexander Dwyer sworn 13 January 2000. 2 The statement of claim pleads that on 26 August 1996 Pacific City Pty Limited purchased from Mr Halloran lands known as the Copper Cup Point Lands, the Golfhurst Lands and the Birmington Lands. The plaintiffs alleged that at various times from June 1992 discussions took place between the defendant and Realty Realisations Pty Limited (Realty) acting on behalf of a number of land owners in the Jervis Bay area, including Mr Halloran, Exchanges Pty Limited and Pacific City concerning the development of land in the vicinity of Culburra and a proposal to extinguish by consolidation certain subdivisions located within the Copper Cup Point Lands, Golfhurst Lands and the Birmington Lands. 3 The statement of claim pleads a cause of action, namely of negligent misstatement made by the defendant to the plaintiffs. The representation relied upon is contained in paragraph 11. It states that: "11. On 23 June 1993 the Department, through The Director, represented to that: (a) the land affected by the Culburra Local Environment Plan was outside the study area of the Jervis Bay Region Environment and Planning Committee; and (b) Realty could therefore be assured that any Development Applications within the area covered by the Culburra Local Environment Plan would not be affected by the findings of the Jervis Bay Region Environment and Planning Committee. Particulars See letter dated 23 June from the Department of Planning to Realty." 4 The defendant accepts that paragraph 12 pleads that the Department owed a duty of care to provide accurate information. Paragraph 14 pleads a breach of that duty of care. 5 Paragraphs 16 and 17 of the amended statement of claim are as follows: "16. Exchanges and Pacific City as owners of the Copper Cup Point, Golfhurst and Birmington Lands, acting reasonably and in reliance upon the information provided by the Department on 23 June 1993: (a) agreed to lodge for registration the plans of subdivision necessary to extinguish the Subdivisions; (b) proceed to take steps whereby the Subdivisions were extinguished; and (c) sold the Copper Cup Pont, (sic) Golfhurst and Birmington Lands to Mr W Hollaran. Particulars On 10 November 1993 Deposited Plan 833420 was registered, effecting a consolidation in respect of the Copper Cup Point and Golfhurst Lands. On 10 November 1993 Deposited Plan 833421 was registered, effecting a consolidation in respect of the Birmington Lands. 17. In taking the steps referred to in the preceding paragraph, Exchanges and Pacific City Pty Limited have suffered loss and damage. Particulars The extinguishment of the Subdivision resulted in a diminution in value of the Copper Cup Point, Golfhurst and Birmington Lands." 6 Paragraph 19 says that contrary to the assurance given by the Department on 23 June 1993 the subdivision lands were affected by the findings of the Jervis Bay Region Environment and Planning Committee. At paragraph 15 of the defence the defendant admitted that the study area of the Jervis Bay Region Environment and Planning Committee included areas within the area covered by the Culburra Local Environment Plan.