Votraint No 1088 Pty Ltd v The Commonwealth of Australia [2004] NSWSC 1003

Reported Decision : (2004) NSW ConvR 56-104

New South Wales Supreme Court

CITATION : Votraint No 1088 Pty Ltd v The Commonwealth of Australia [2004] NSWSC 1003 HEARING DATE(S) : 13/09/04 [then written submissions] JUDGMENT DATE : 28 October 2004 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Refuse leave to amend.

CATCHWORDS : CONVEYANCING [34]- Requisition- What is a requisition- Consequence of false answer. Adolfson v Jengedor Pty Ltd (1995) 6 BPR 14147 Babcock International Ltd v Babcock Australia Ltd [2003] NSWCA 6 Barber v Keech (1987) 64 LGRA 116 Bebonis v Angelos (2003) 56 NSWLR 127 E v K (1995) (1995) 2 NZLR 239 CASES CITED : Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd (1972) 128 CLR 529 Gran Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560 Mahon v Ainscough [1952] 1 All ER 337 Skywick Pty Ltd v Bursill Enterprises Pty Ltd (1998) 9 BPR 16631 Sved v Woollahra MC (1995) 7 BPR 15007 The Truculent [1951] P 1 Woollahra MC v Sved (1996) 40 NSWLR 101 PARTIES : Votraint No 1088 Pty Limited (P) The Commonwealth of Australia (D) FILE NUMBER(S) : SC 4182/02 COUNSEL : R J Powell SC and JAC Potts (P) P T Taylor SC (D) SOLICITORS : Clinch Neville Long (P) Australian Government Solicitor (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Thursday 28 October 2004

4182/02 – VOTRAINT NO 1088 PTY LTD v THE COMMONWEALTH OF AUSTRALIA JUDGMENT 1 HIS HONOUR: These proceedings have had a wretched history. 2 The proceedings were commenced by statement of claim filed 22 August 2002 against Telstra Corporation Ltd. Other proceedings, No 4903/02, were commenced against the Commonwealth of Australia with respect to the same matter. On 4 February 2003, by consent, Registrar Berecry consolidated 4903/02 with 4182/02, and the Commonwealth of Australia was added as a second defendant to the present proceedings. Following that order, a document called "Further Amended Statement of Claim" was filed on 12 February 2003 naming both Telstra and the Commonwealth as defendants. The proceedings were subsequently discontinued against Telstra so that the Commonwealth is the only defendant now being sued. 3 On 9 June 2004, the Registrar specially fixed the trial of the proceedings before me on 13 to 16 September 2004 and listed the matter for pre-trial directions on 22 July 2004. 4 On 22 July the plaintiff obtained an order that it had liberty to file a second further amended statement of claim by 29 July and the pre-trial was stood over to 10 August. 5 On 10 August it was quite clear that there were considerable problems with respect to the amended claim. I vacated the hearing, but retained 13 September to deal with interlocutory questions. 6 On 13 September 2004, the question was posed for my decision as to whether the proposed second further amended statement of claim should be filed. There was oral argument on that day. Various other points arose during the argument and I gave leave for the submissions to continue in writing, the last of these submissions being received about a week ago. 7 The essential facts are that on 23 August 1995 the plaintiff entered into a contract with the Commonwealth for the purchase of land at St Marys. The plaintiff claims that by letter of 9 October 1996, the plaintiff through its solicitors, made a requisition and enquiry of the Commonwealth asking whether the Commonwealth was aware of any right of way, drainage or other easement, right or licence not disclosed in the contract. By letter dated 31 October 1996 the Commonwealth, through its solicitors, answered by saying, "Not so far as vendor is aware". 8 The contract was completed. In fact, there was and had been for many years, a cable laid under the land. The plaintiff says it only discovered the cable when its plans for redevelopment of the land had reached an advanced stage; it was then too late to redesign its development; it was forced to have the cable relocated, and suffered damage in the sum of $1,079,730.00. 9 Earlier versions of the statement of claim focussed on the Trade Practices Act and misrepresentations. However, these have been abandoned and the latest version which it is now sought to file, relies on causes of action in contract and negligence. Essentially the allegations are as follows: