Tynan & Ors. v. Newcastle City Council [2002] NSWCA 142

New South Wales Court of Appeal

CITATION : Tynan & Ors. v. Newcastle City Council [2002] NSWCA 142 FILE NUMBER(S) : CA 40919/01 HEARING DATE(S) : 8 May 2002 JUDGMENT DATE : 22 May 2002

PARTIES : Jason James Tynan, Heath Andrew Tynan and Mike Justin Tynan - appellants Newcastle City Council - respondent JUDGMENT OF : Hodgson JA at 1; Davies AJA at 52; Pearlman AJA at 53

LOWER COURT JURISDICTION : District Court LOWER COURT DC 5822/99 FILE NUMBER(S) : LOWER COURT Walmsley DCJ JUDICIAL OFFICER :

COUNSEL : Mr. J. Van Aalst for appellants Mr. G. Lindsay SC with Mr. A. Ridley for respondent SOLICITORS : Woolf Associates, Sydney for appellants Harris Wheeler, Newcastle for respondent CATCHWORDS : LOCAL GOVERNMENT - TORT - Negligence - Duties of Councils - Application for building approval - Inspection of foundations - Whether duty to check whether distance from boundary conformed to plans - DAMAGES - Hypothetical circumstances - How damages assessed - Loss from court proceedings which resulted in order for removal of house - Proceedings taken after extension to house, resulting from Council's negligence - Finding by primary judge that proceedings would have been taken in any event - Whether damages should have been awarded for the loss of a chance that proceedings not taken. LEGISLATION CITED : Local Government (Approvals) Regulation 1993, clause 12(1) CASES CITED: Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 6383 DECISION : 1. Appeal allowed to the extent of increasing the judgment in favour of the appellants by a sum of $29,000.00 plus interest on that amount from 30 September 1998 2. Appeal otherwise dismissed 3. No order as to the costs of the appeal.