Lorenzato v Burwood Council [2020] NSWSC 1659

Lorenzato v Burwood Council [2020] NSWSC 1659

Burwood Council breached its duty of care by failing to disclose in the s 149 planning certificate its 2002 policy resolution (a 'policy' restricting development due to likelihood of flooding) affecting the property. This omission was negligent and misleading. The second defendant was also liable for negligent misstatement in answers to requisitions, failing to disclose the existence of the stormwater pipe and Council's statutory rights, similarly causing loss to the plaintiff. The measure of damages is the amount by which the purchase price exceeded the market value of the land if properly disclosed. Council was also liable in nuisance for the flooding, as its negligent street drainage...

Parties
Plaintiff: Elisa Lorenzato; First Defendant: Burwood Council; Second Defendant: Michael Della-Franca; Cross Defendant: John Lukas
Jurisdiction
Australia
Judgment Date
23 November 2020
Procedural Posture
Civil / Final Judgment After Trial
Outcome
Judgment for the plaintiff against both first and second defendants; cross-claim by second defendant dismissed.
Legal Topics
Negligent Misstatement, Private Nuisance, Vendor and Purchaser, Misdescription and Defects, Professional Negligence, Planning Certificates, Statutory Interpretation, Compulsory Acquisition
Torts Property Law Local Government Law Conveyancing Negligent Misstatement Private Nuisance Vendor and Purchaser Misdescription and Defects +4 more

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Parties

Elisa Lorenzato

Plaintiff

Burwood Council

First Defendant

Michael Della-Franca

Second Defendant

John Lukas

Cross Defendant

Procedural Posture

Civil / Final Judgment After Trial

Legal Issues

  1. 1 Whether Burwood Council was liable for negligent misstatement in a planning certificate under s 149 Environmental Planning and Assessment Act 1979 (NSW).
  2. 2 Whether the second defendant (vendor) was liable for negligent misstatement and/or non-disclosure in sale of land requisitions regarding the existence of a stormwater pipe and Council rights.
  3. 3 Whether Council was liable in nuisance for flooding caused by stormwater drainage.

Ratio Decidendi

Burwood Council breached its duty of care by failing to disclose in the s 149 planning certificate its 2002 policy resolution (a 'policy' restricting development due to likelihood of flooding) affecting the property. This omission was negligent and misleading. The second defendant was also liable for negligent misstatement in answers to requisitions, failing to disclose the existence of the stormwater pipe and Council's statutory rights, similarly causing loss to the plaintiff. The measure of damages is the amount by which the purchase price exceeded the market value of the land if properly disclosed. Council was also liable in nuisance for the flooding, as its negligent street drainage...

Court Disposition

Judgment for the plaintiff against both first and second defendants; cross-claim by second defendant dismissed.

Orders

  • Judgment for the plaintiff against the first defendant (Burwood Council) in the sum of $1,274,000 plus interest of $726,171.06 (comprising $697,324.62 on $1,219,000 from 12 August 2011 and $28,846.44 on $55,000 from 1 March 2012).
  • First defendant to pay plaintiff's costs.