Rhodes v Lake Macquarie City Council and another [2010] NSWCA 235

New South Wales Court of Appeal

CITATION: Rhodes v Lake Macquarie City Council and another [2010] NSWCA 235

HEARING DATE(S): 24 August 2010

JUDGMENT DATE: 13 September 2010

JUDGMENT OF: Hodgson JA at 1; Macfarlan JA at 60; Handley AJA at 61

DECISION: Appeal dismissed with costs.

CATCHWORDS: TORT – Negligence – Plaintiff injured by branch falling from tree – Claim for damages against lessor, and against council which had refused consent to remove tree – Whether breach of duty by council in adopting tree preservation policy, or by council officer in refusing consent to removal of tree – Whether breach of duty by lessor in not informing council of history of property damage and injury from tree – Whether any such breach of duty causative of injury to plaintiff.

LEGISLATION CITED: Civil Liability Act 2002 ss 5B, 5D, 5E, 43, 43A,

CATEGORY: Principal judgment

CASES CITED: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166

Kerry RHODES (appellant) PARTIES: LAKE MACQUARIE CITY COUNCIL (first respondent) NSW LAND AND HOUSING CORPORATION (second respondent)

FILE NUMBER(S): CA 2009/298374

C T BARRY QC/ P BEALE (appellant) COUNSEL: J GUIHOT (first respondent) M L WILLIAMS SC (second respondent)

CMC Lawyers (appellant) SOLICITORS: Moray & Agnew Solicitors (first respondent) McCabe Terrill Lawyers (second respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5265/2006

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 8 May 2009

- 22 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298374 DC 5265/2006