VOTRAINT NO 1088 PTY LTD v THE COMMONWEALTH OF AUSTRALIA [2005] NSWCA 249

Reported Decision : (2006) NSW ConvR 56-152

New South Wales Court of Appeal

VOTRAINT NO 1088 PTY LTD v THE COMMONWEALTH OF AUSTRALIA [2005] NSWCA 249 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 July 2005

JUDGMENT DATE: 15 July 2005

JUDGMENT OF: Mason P at 1; Giles JA at 27; Campbell AJA at 28

DECISION: Appeal upheld

CATCHWORDS: Leave to amend pleadings - whether amended pleading was doomed to fail - conveyancing transaction - implied warranty to prepare answers to requisitions with reasonable care and skill - duty of care in negligence arising out of a vendor/purchaser relationship - necessity of identifying particular persons who knew the answer was false. (ND)

VOTRAINT NO 1088 PTY LTD PARTIES: THE COMMONWEALTH OF AUSTRALIA

FILE NUMBER(S): CA 41061/04

Appellant: R Powell SC/ J Potts COUNSEL: Respondent: P T Taylor SC/ D S Weinberger

Appellant: Clinch Neville Long Lawyers SOLICITORS: Respondent: Australian Government Solicitor

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 4182/02

LOWER COURT JUDICIAL OFFICER: Young CJ in Eq

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41061/04

MASON P GILES JA CAMPBELL AJA

Friday 15 July 2005

VOTRAINT NO 1088 PTY LTD v THE COMMONWEALTH OF AUSTRALIA JUDGMENT

1 MASON P: This application for leave to appeal arises out of proceedings in the Equity Division. The claimant sued the opponent for damages referable to expenses allegedly incurred in consequence of having relied upon the answer given to what I will describe generically as a requisition. 2 On 23 August 1995 the Commonwealth contracted to sell to Votraint No 1088 Pty Limited certain land at Rooty Hill. The contract was completed in 1996. 3 In the course of the conveyancing transaction the purchaser's solicitor wrote to the vendor's solicitor on 9 October 1996 a letter entitled Requisitions on Title which commenced "On behalf of the purchaser we make the following requisitions and enquiries." Under a heading, Matters affecting the property the following question was asked: 5.1 Is the vendor aware of any of the following...