Wood v Balfour [2011] NSWCA 382

Wood v Balfour [2011] NSWCA 382

Although the respondents, by presenting the property for inspection, represented that they had not knowingly concealed major termite damage compromising structural integrity, the appellants did not successfully challenge the primary judge's credit-based finding that the respondents were unaware of such major damage and did not act dishonestly. The deceit claim therefore failed. The application to adduce further evidence failed because the evidence could have been obtained with reasonable diligence before trial and was not sufficiently material. The refusal of the late recklessness amendment involved no appellable error because of prejudice. The indemnity costs order was set aside because...

Jurisdiction
Australia
Judgment Date
09 December 2011
Procedural Posture
Appeal in Proceedings for Deceit Arising From Sale of Residential Property With Termite Damage / Appeal From District Court Judgment Dismissing Deceit Claim, Refusing Leave to Amend, and Awarding Indemnity Costs
Outcome
Appeal allowed in part; appeal otherwise dismissed.
Legal Topics
['deceit' 'fraudulent Concealment' 'sale of Residential Property' 'termite Damage' 'fresh Evidence on Appeal' 'leave to Amend Pleadings' 'indemnity Costs' 'calderbank Offer' 'offer of Compromise']
['torts' 'property' 'civil Procedure' 'costs'] ['deceit' 'fraudulent Concealment' 'sale of Residential Property' 'termite Damage' 'fresh Evidence on Appeal' 'leave to Amend Pleadings' 'indemnity Costs' 'calderbank Offer' 'offer of Compromise']

Case Brief

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Procedural Posture

Appeal in Proceedings for Deceit Arising From Sale of Residential Property With Termite Damage / Appeal From District Court Judgment Dismissing Deceit Claim, Refusing Leave to Amend, and Awarding Indemnity Costs

Legal Issues

  1. 1 ['Whether vendors made a representation by making the property available for inspection and not disclosing concealed termite damage' 'Whether any representation was made to the purchasers and was false' 'Whether the vendors knew of major termite damage compromising structural integrity and acted dishonestly' 'Whether the purchasers relied on the alleged representation or non-disclosure' 'Whether further evidence discovered after trial should be admitted on appeal' 'Whether leave should have been granted to amend the statement of claim to allege recklessness' 'Whether the primary judge erred in ordering indemnity costs']

Ratio Decidendi

Although the respondents, by presenting the property for inspection, represented that they had not knowingly concealed major termite damage compromising structural integrity, the appellants did not successfully challenge the primary judge's credit-based finding that the respondents were unaware of such major damage and did not act dishonestly. The deceit claim therefore failed. The application to adduce further evidence failed because the evidence could have been obtained with reasonable diligence before trial and was not sufficiently material. The refusal of the late recklessness amendment involved no appellable error because of prejudice. The indemnity costs order was set aside because...

Court Disposition

Appeal allowed in part; appeal otherwise dismissed.

Orders

  • ['Appeal allowed in part.' "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." 'Appeal otherwise dismissed.' "Order the appellants to pay 75 per cent of the...