SULLIVAN v DAN [1998] NSWCA 292

SULLIVAN v DAN [1998] NSWCA 292

The appeal was dismissed because the case raised on appeal was a new cause of action, different remedies were claimed, and if brought under the Trade Practices Act, it would be statute barred. Moreover, justice demanded refusal to permit appellants to prosecute the alternative case, as respondents could have led evidence below. There was no defect in title, so appellants had no right to rescind, and enforcement of conditions was improbable.

Parties
Appellant: Sullivan; Respondent: Dan
Jurisdiction
Australia
Judgment Date
22 April 1998
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed with costs
Legal Topics
Breach of Contract, Duty of Care, Defect in Title, Misleading or Deceptive Conduct, Trade Practices Act
Contract Law Tort Law Breach of Contract Duty of Care Defect in Title Misleading or Deceptive Conduct Trade Practices Act

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Sullivan

Appellant

Dan

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether solicitors breached contractual or tortious duty by failing to ascertain and advise on outstanding Development Approval conditions
  2. 2 Whether existence of unfulfilled Development Approval conditions was a defect in title entitling rescission
  3. 3 Whether appellants should be permitted to prosecute a new cause of action under Trade Practices Act on appeal

Ratio Decidendi

The appeal was dismissed because the case raised on appeal was a new cause of action, different remedies were claimed, and if brought under the Trade Practices Act, it would be statute barred. Moreover, justice demanded refusal to permit appellants to prosecute the alternative case, as respondents could have led evidence below. There was no defect in title, so appellants had no right to rescind, and enforcement of conditions was improbable.

Court Disposition

appeal dismissed with costs

Orders

  • Appeal dismissed with costs