Wood v Balfour [2011] NSWCA 382

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wood v Balfour [2011] NSWCA 382 Hearing dates: 25 and 26 October 2011 Decision date: 09 December 2011 Before: Giles JA at [1] Macfarlan JA at [9] Meagher JA at [151] Decision: (1) Appeal allowed in part. (2) Set aside the order for costs that the primary judge made on 20 August 2010 and in lieu thereof order that the appellants pay on the ordinary basis the respondents' costs of the proceedings at first instance. (3) Appeal otherwise dismissed. (4) Order the appellants to pay 75 per cent of the respondents' costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - deceit - sale of residential property - property had major termite damage which was not patent and which compromised its structural integrity - prior to contemplating sale vendors had undertaken work to repair and cover limited damage - purchasers alleged that the work was done to conceal major damage of which vendors aware and that non-disclosure of that damage at the time of sale amounted to a representation by the vendors that there was no serious termite damage to the property - held that vendors unaware of major damage and did not act dishonestly - whether necessary in considering purchasers' claimed remedy in deceit to consider whether vendors made a representation