Della Franca v Lorenzato; Burwood Council v Lorenzato [2021] NSWCA 321

Della Franca v Lorenzato; Burwood Council v Lorenzato [2021] NSWCA 321

The Council did not make a negligent misstatement in the planning certificate, as neither the alleged 'policy' nor 'flood related development controls' required disclosure, and any nondisclosure was protected by statutory immunities (s 43A Civil Liability Act, s 733 Local Government Act). Mr Della Franca's answers to requisitions were not misleading or negligent, given the contract excluded requisitions on drainage services and no operative Council policy requiring disclosure existed at the relevant time.

Jurisdiction
Australia
Judgment Date
16 December 2021
Procedural Posture
Appeal / Final Judgment Court of Appeal
Outcome
Appeals allowed. All negligent misstatement claims against Burwood Council and Mr Della Franca dismissed. Judgment in nuisance against Council stands.
Legal Topics
['negligent Misstatement' 'planning Certificates' 'statutory Immunity' 'council Liability' 'vendor Disclosures' 'flooding and Drainage' 'nuisance']
['torts' 'property Law' 'local Government Law'] ['negligent Misstatement' 'planning Certificates' 'statutory Immunity' 'council Liability' 'vendor Disclosures' 'flooding and Drainage' 'nuisance']

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Procedural Posture

Appeal / Final Judgment Court of Appeal

Legal Issues

  1. 1 ["Whether Burwood Council's planning certificate under s 149 of the Environmental Planning and Assessment Act 1979 (NSW) contained negligent misstatements" 'Whether the Council was protected by statutory immunities (Civil Liability Act s 43A; Local Government Act s 733)' "Whether Mr Della Franca's answers to requisitions were misleading/negligent misstatements" "Scope of vendor's duty to disclose Council infrastructure or restrictions" 'Whether damages should be awarded for negligent misstatement']

Ratio Decidendi

The Council did not make a negligent misstatement in the planning certificate, as neither the alleged 'policy' nor 'flood related development controls' required disclosure, and any nondisclosure was protected by statutory immunities (s 43A Civil Liability Act, s 733 Local Government Act). Mr Della Franca's answers to requisitions were not misleading or negligent, given the contract excluded requisitions on drainage services and no operative Council policy requiring disclosure existed at the relevant time.

Court Disposition

Appeals allowed. All negligent misstatement claims against Burwood Council and Mr Della Franca dismissed. Judgment in nuisance against Council stands.

Orders

  • ["In Burwood Council's appeal: Allow the appeal. Set aside the orders made at first instance on 23 November 2020. Judgment for Ms Lorenzato against Burwood Council in the sum of $83,846.44 to take effect from 23 November 2020. Order Ms Lorenzato to pay Burwood Council's costs on appeal and 50% of the Council's costs...