Estate of the Late J J Virgona by its Executors v De Lautour [2007] NSWCA 282

Reported Decision: (2007) Aust Torts Reports 81-918 Appeal Outcome: Special leave refused with costs by the High Court - 13 June 2008

New South Wales Court of Appeal

CITATION: Estate of the Late J J Virgona by its Executors v De Lautour [2007] NSWCA 282

HEARING DATE(S): 08/10/07

JUDGMENT DATE: 18 October 2007

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 2; Young CJ in Eq at 60

DECISION: (1) The appeal is upheld. (2) The judgment of Boulton ADCJ is set aside. (3) There will be judgment for the appellant. (4) The respondent's claim against the appellant is dismissed with costs. (5) The respondent to pay the appellant's costs of the appeal. (6) The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS: TORTS – negligence – duty of care of landlord to tenant – respondent fell through ceiling of an attic roof area of premises owned by the appellant – respondent was the co-tenant of the premises – condition of roof area – whether roof area constituted a dangerous defect – whether the condition of the roof area rendered the premises unfit for the purposes for which they were let such that a duty of care was imposed on the appellant. D

LEGISLATION CITED: Suitors' Fund Act 1951 (NSW)

Ahluwalia v Robinson [2003] NSWCA 175 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 CASES CITED: New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879 Sakoua v Williams [2005] NSWCA 405; (2005) 64 NSWLR 588 Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Estate of the Late Joseph James Virgona by its Executors Rosemary Marie Virgona, Robert Thomas Virgona and Kathleen Constance Quinlivan (Appellant) Rachael May De Lautour (Respondent)