Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280

Supreme Court New South Wales

Medium Neutral Citation: Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 Hearing dates: 2 to 13 December 2013 Decision date: 19 September 2014 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The proceedings stand over to 17 October 2014 at 9:00am for directions. (2) There be liberty to apply. Catchwords: NEGLIGENCE - deceased's vehicle passed through exterior fence on second level of commercial car park - fact finding - role of faulty wheel stop in cause of accident - fence non-compliant with relevant standard - role of fence in cause of accident.

DUTY OF CARE AND BREACH - owner of commercial car park - duty owed to users of car park - obligation to inspect for repairs and defects - scope of obligation to take action in response - burden of doing so.

TRADE PRACTICES ACT 1974 (CTH) - implied term - whether contract between driver of vehicle and operator of car park - whether contract for supply of services to consumer - whether wife of deceased driver can bring claim under Compensation to Relatives Act 1897 (NSW) in respect of breach of contract containing term implied by Trade Practices Act - whether such a claim is governed by Civil Liability Act 2002 (NSW).

NEGLIGENCE - liability of Council - power and functions exercised by Council from 1985 to 1991 in relation to development approval for car park, building approval for car park, inspection and licensing of car park - whether Council owed user and occupants of car park a duty of care in respect of exercise of statutory powers - whether Council committed misfeasance or non-feasance - whether Council breached duty - whether Council protected from liability by s 43A of Civil Liability Act - applicability of s 44 of Civil Liability Act.