Delaney v Winn [2015] NSWCA 124

Delaney v Winn [2015] NSWCA 124

The appeal was dismissed because the broader duty of care advanced by the appellants on appeal was not pleaded or conducted at trial, and the primary judge did not err in addressing the duty that was actually conceded and litigated: a duty to carry out a standard property inspection complying with Australian Standard AS 4349.1-1995. On the evidence, including the expert evidence accepted by the primary judge, it was open to find that the respondent complied with that duty and did not give negligent advice. The appellants' challenges to factual findings, expert evidence, mental harm findings and credibility findings did not establish reversible error; the primary judge's errors concerning...

Jurisdiction
Australia
Judgment Date
12 May 2015
Procedural Posture
Civil Appeal Concerning Negligence, Negligent Misstatement and Building Inspection Advice / Appeal From the District Court of New South Wales; Application to Extend Time for Filing and Service of the Notice of Appeal
Outcome
Appeal dismissed with costs; time extended for filing and service of the notice of appeal.
Legal Topics
['duty of Care' 'breach of Duty' 'negligent Misstatement' 'pre Purchase Building Inspection Report' 'pure Economic Loss Causation' 'pleadings and Departure From Pleaded Case' 'appeal Against Factual Findings' 'credibility Findings' 'mental Harm and Non Economic Loss']
['torts' 'negligence' 'civil Procedure' 'evidence' 'damages'] ['duty of Care' 'breach of Duty' 'negligent Misstatement' 'pre Purchase Building Inspection Report' 'pure Economic Loss Causation' 'pleadings and Departure From Pleaded Case' 'appeal Against Factual Findings' 'credibility Findings' 'mental Harm and Non Economic Loss']

Case Brief

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Procedural Posture

Civil Appeal Concerning Negligence, Negligent Misstatement and Building Inspection Advice / Appeal From the District Court of New South Wales; Application to Extend Time for Filing and Service of the Notice of Appeal

Legal Issues

  1. 1 ['Whether the primary judge erred by not finding the broader duty of care contended for on appeal in relation to the report and oral advice at the site meeting.' 'Whether the respondent breached a duty of care by failing to carry out an inspection complying with Australian Standard AS 4349.1-1995 or by giving negligent advice.' 'Whether the primary judge applied an incorrect test for causation in a pure economic loss claim.' 'Whether the primary judge erred in findings of fact, treatment of expert evidence, adequacy of reasons, mental harm findings and credibility findings.']

Ratio Decidendi

The appeal was dismissed because the broader duty of care advanced by the appellants on appeal was not pleaded or conducted at trial, and the primary judge did not err in addressing the duty that was actually conceded and litigated: a duty to carry out a standard property inspection complying with Australian Standard AS 4349.1-1995. On the evidence, including the expert evidence accepted by the primary judge, it was open to find that the respondent complied with that duty and did not give negligent advice. The appellants' challenges to factual findings, expert evidence, mental harm findings and credibility findings did not establish reversible error; the primary judge's errors concerning...

Court Disposition

Appeal dismissed with costs; time extended for filing and service of the notice of appeal.

Orders

  • ["Extend time for the filing and service of the appellants' notice of appeal to 21 August 2014." 'Dismiss the appeal with costs.']