Schieb v Burnheim [2020] NSWSC 1254

Schieb v Burnheim [2020] NSWSC 1254

The obligation in clause 12.3 of the Deed of Partition required the Schiebs to bring about the Burnheims' membership of the Scheme, not merely provide contractual water access; failure to do so was a breach. Don's assurance to Burnheim was a misleading representation as to a future matter, and damage accrued only when membership was denied in September 2014, bringing the claim within statutory time limits. Damages were awarded for diminished value, infrastructure expenditure, water payments, and deducted expected membership payment.

Parties
First Plaintiff and First Cross Defendant: Donald Hugh Schieb; Second Plaintiff and Second Cross Defendant: Ainslie Schieb; First Defendant and First Cross Claimant: Peter Burnheim; Second Defendant and Second Cross Claimant: Leah Burnheim
Jurisdiction
Australia
Judgment Date
14 September 2020
Procedural Posture
Cross Claim / Judgment After Hearing
Outcome
Cross-claimants entitled to damages in principal sum of $131,821.04
Legal Topics
Misleading or Deceptive Conduct, Damages, Breach of Contract, Construction of Contractual Obligations, Statutory Limitation Periods
Equity Real Property Contract Law Consumer Law Misleading or Deceptive Conduct Damages Breach of Contract Construction of Contractual Obligations +1 more

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Parties

Donald Hugh Schieb

First Plaintiff and First Cross Defendant

Ainslie Schieb

Second Plaintiff and Second Cross Defendant

Peter Burnheim

First Defendant and First Cross Claimant

Leah Burnheim

Second Defendant and Second Cross Claimant

Procedural Posture

Cross Claim / Judgment After Hearing

Legal Issues

  1. 1 Did the Schiebs breach an obligation to ensure Burnheims' membership in the water Scheme?
  2. 2 Was there misleading or deceptive conduct contrary to s 18 of the ACL?
  3. 3 Were damages suffered due to the contractual breach or misleading conduct?

Ratio Decidendi

The obligation in clause 12.3 of the Deed of Partition required the Schiebs to bring about the Burnheims' membership of the Scheme, not merely provide contractual water access; failure to do so was a breach. Don's assurance to Burnheim was a misleading representation as to a future matter, and damage accrued only when membership was denied in September 2014, bringing the claim within statutory time limits. Damages were awarded for diminished value, infrastructure expenditure, water payments, and deducted expected membership payment.

Court Disposition

Cross-claimants entitled to damages in principal sum of $131,821.04

Orders

  • Judgment for Burnheims in $131,821.04 on cross-claim against Schiebs
  • Further submissions invited on costs of principal claim and cross-claim