Smith v Eurobodalla Shire Council & Anor [2005] NSWCA 89

New South Wales Court of Appeal

CITATION: Smith v Eurobodalla Shire Council & Anor [2005] NSWCA 89

HEARING DATE(S): 21 October 2004

JUDGMENT DATE: 2 March 2005

JUDGMENT OF: Mason P at 1; Santow JA at 2; McClellan AJA at 3

DECISION: 1. Orders made by Latham DCJ set aside; 2. There be a retrial on all issues; 3. The costs of the first trial be in the discretion of the judge hearing the second trial; 4. The respondents to pay the appellants' costs of the appeal and, if qualified, should have a certificate under the Suitors' Fund Act 1951

CATCHWORDS: NEGLIGENCE - house with substantial building defects - site not level - foundations of structure - design of concrete slab approved by Council - Council officer inspected site - Council officer required the concrete slab to be raised - Council code in relation to slab reinforcement - whether Council and/or builder owed the purchasers a duty of care - whether the trial judge erred in finding that there was no fill present under the house slab - whether the Council's inspections were negligently performed - whether trial judge erred in making certain other factual findings - EVIDENCE - whether trial judge erred in excluding certain evidence at trial - DAMAGES - whether trial judge erred in finding there was no evidence quantifying the amount of any damages

Alec Finlayson Pty Ltd v Armidale City Council (1994) 123 ALR 155 Armidale City Council v Alec Finlayson Pty Ltd (1999) 104 LGERA 9 Bryan v Maloney (1995) 182 CLR 609 Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512 Lustre Hosiery Ltd v York (1935) 54 CLR 134 Makita Australia Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mid Density Developments Pty Limited v Rockdale Municipal Counci (1993) 44 FLR 290 CASES CITED: Miller & Crook Pty Ltd v Auburn Municipal Council (1960) SR (NSW) 398 Parramatta City Council v Lutz (1988) 12 NSWLR 293 Pyrenees Shire Council v Day (1998) 192 CLR 330 San Sebastian Pty Ltd v Minister Administering Environmental Planning Act (1986) 162 CLR 340 Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 Sutherland Shire Council v Heyman & Anor (1985) 157 CLR 424 Western Australian Planning Commission v Arcus Shopfitters (2003) WASCA 295 Wollongong City Council v Fregnan & Anor [1982] 1 NSWLR 244