Todd Hadley Pty Limited v Lake Maintenance (NSW) Pty Limited [2019] NSWCA 262

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Todd Hadley Pty Limited v Lake Maintenance (NSW) Pty Limited [2019] NSWCA 262 Hearing dates: 24 July 2019 Date of orders: 21 November 2019 Decision date: 21 November 2019 Before: Bell P at [1]; McCallum JA at [49]; Simpson AJA at [105] Decision: 1. Grant leave to appeal.

2. Allow the appeal.

3. Set aside the orders of the primary judge and, in lieu thereof, order that, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the Court determine the following separate question:

Did the plaintiff sustain loss or damage for the purposes of its claims against the defendant by the time of entry into the contract for the sale of the Property on 23 May 2012 with the consequence that the plaintiff's claims against the defendant are statute barred?

4. The Court notes that the defendant will not contend, in the course of the hearing of the separate question or subsequently, that the claims made against it are statute barred for any reason other than that loss or damage was sustained by the plaintiff by reason of entry into the sale of the Property on 23 May 2012.

5. Costs of the motion at first instance and costs of the appeal to be costs in the cause. Catchwords: CIVIL PROCEDURE – separate determination of questions – formulation of questions – primary judge's discretion miscarried because of error in relation to expected length of hearing of separate question – need for re-exercise of discretion – claim in professional negligence and for statutory breaches in relation to valuation of property for mortgage valuation purposes – limitation defence raised – whether separate question should be ordered in respect of limitation defence – where question essentially one of law and capable of resolving dispute if answered favourably to defendant – consideration of length and cost of any hearing of separate question relative to length of hearing and cost of full trial Legislation Cited: Civil Procedure Act 2005 (NSW) s 56, Pt 6 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law ss 236, 262 Evidence Act 1995 (NSW) s 191 Fair Trading Act 1987 (NSW) ss 42, 68 Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW) Limitation Act 1969 (NSW) s 14 Supreme Court Act 1970 (NSW) s 101(e) Trade Practices Act 1974 (Cth) s 82 Uniform Civil Procedure Rules 2005 (NSW) rr 1.21, 17.2, 28.2 Cases Cited: AE Consulting Pty Ltd v Online Valuations Pty Ltd [2012] NSWSC 1300 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 Artistic Builders Pty Limited v Nash [2010] NSWSC 1442 Bailey and Bailey v Director-General Department of Energy Climate Change and Water [2010] NSWSC 979 Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 Crawley v Vero Insurance Ltd [2012] NSWSC 593 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Flore v NSW Department of Education and Training [2006] NSWSC 1227 Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 House v R (1936) 55 CLR 499; [1936] HCA 40 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth of Australia (1994) 51 FCR 213; [1994] FCA 1161 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2006] NSWSC 1464 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25 LM Investment Management Ltd v BMT & Associates Pty Ltd (No 2) [2016] NSWSC 317 NZI Capital Corp Pty Ltd v Child (1991) 23 NSWLR 481 Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 Ross v Cook [2009] NSWSC 671 Southwell v Bennett [2010] NSWSC 1372 Stewart v Ronalds [2009] NSWSC 455 Street v Luna Park Sydney Pty Limited [2007] NSWSC 697 Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 TVW Enterprises Limited v Duffy [1985] FCA 109 Wardley Australia Limited v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWSC 66 Category: Principal judgment Parties: Todd Hadley Pty Limited (First Appellant) Sean McGill Pty Ltd (Second Appellant) Todd Hadley (Third Appellant) Lake Maintenance (NSW) Pty Limited (Respondent) Representation: Counsel: MT McCulloch SC (Appellants) C Birch SC, P Thew (Respondent)