Burner v Sanctuary Homes Pty Ltd and Dimov [2018] NSWCA 294

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Burner v Sanctuary Homes Pty Ltd and Dimov [2018] NSWCA 294 Hearing dates: 28 November 2018 Date of orders: 28 November 2018 Decision date: 04 December 2018 Before: Basten JA; Leeming JA; Sackville AJA Decision: (1) Allow the appeal.

(2) Set aside the orders and judgment made in the District Court.

(3) Give judgment for the first defendant in the District Court, with costs.

(4) Order that the respondents pay the appellant's costs in this court. Catchwords: LIMITATION OF ACTIONS – when limitation period commenced – fraud and deceit – purchase of land by defendant – payment of 10% of purchase price deferred pending completion of building work and issue of occupation certificate – agreement that moneys be held in trust account by agent of defendant – defendant directed agent to repay funds – defendant refused to pay balance of purchase price – dispute as to completion of building work – whether vendor's cause of action based on fraud or deceit – elements of common law fraud – whether fraud only discovered less than 6 years before proceedings commenced – Limitation Act 1969 (NSW), ss 14, 55 Legislation Cited: Limitation Act 1969 (NSW), ss 14, 55 Cases Cited: Derry v Peek (1889) 14 App Cas 337 Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 Category: Principal judgment Parties: Lee Burner (Appellant) John Dimov (First Respondent) Sanctuary Homes Pty Ltd (Second Respondent) Representation: Counsel: Mr J R B Pearson (Appellant) Mr S Brennan (Respondents)