Guiney v Australand Holdings Ltd & Ors; Castlehaven Sales No 2 (trading as Castlehaven Realtors & Ors v Guiney & Ors [2008] NSWCA 44

New South Wales Court of Appeal

CITATION: Guiney v Australand Holdings Ltd & Ors; Castlehaven Sales No 2 (trading as Castlehaven Realtors & Ors v Guiney & Ors [2008] NSWCA 44

HEARING DATE(S): 21 September 2007

JUDGMENT DATE: 1 April 2008

JUDGMENT OF: Mason P at 1; Giles JA at 59; Einstein J at 60

DECISION: (1) Appeal against first respondent on liability upheld with costs; (2) Appeals as to quantum dismissed; (3) Set aside orders 6, 7, 8 and 10 made in the District Court on 7 July 2006. In lieu, verdict for the plaintiff against the first defendant for $96,100; (4) Set aside the Bullock order made on 18 August 2006; (5) Liberty to apply within 14 days for any relief appropriate to the cross-claims filed in the proceedings; (6) First respondent to pay appellant's costs of the appeal and to have a certificate under the Suitor's Fund Act, if qualified; (7) Appellant to pay the costs of the second and third respondents of the appeal.

CATCHWORDS: APPEAL AND NEW TRIAL – Appeal – general principles – points and objections not taken below – when not allowed to be raised on appeal – question not raised in pleadings or in argument – question of law – where statute law changes after trial but before the giving of judgment – where opportunity to bring the change of law to the attention of the judge not taken by legal representatives – where determining appeal on the point prejudicial to other party – Sullivan v Gordon – Civil Liability Act 2002, s15B - APPEAL AND NEW TRIAL – New trial – in general and particular grounds – points and objections not at trial – when not allowed to be raised – other conduct debarring the applicant – other matter – where law changes after trial but before the giving of judgment – where opportunity to bring the change of law to the attention of the judge not taken by legal representatives – where new trial not in the interests of justice – Sullivan v Gordon – Civil Liability Act 2002, s15B - DAMAGES – Measure and remoteness of damages in actions for tort – measure of damages – personal injuries – method of assessment – generally – where "cushion" or "buffer" damages awarded – whether damages should have been assessed at specific rate - TORTS – Negligence – essentials of action for negligence – duty of care – relationship of proximity – builder of premises with defect – injury to member of immediate family of first occupiers of newly built home.