Derring Lane Pty Ltd v Fitzgibbon

(2007) 16 VR 563; [2007] VSCA 79

Victorian Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Negligent misstatement
4. › Pure economic loss
5. › Duty of care owed by valuer to third party purchaser
6. › Effect of disclaimer
7. › Whether disclaimer negated duty of care
8. › Whether valuer knew purchaser would depend on valuation
1. Torts
2. › Negligence
3. › Negligent misstatement
4. › Causation
5. › Whether proof of 'active reliance' or inducement required
6. › Whether contractual obligation to act consonantly with misstatement sufficient
7. › Distinction between 'active' and 'passive' reliance
8. › Valuation operating to quantify amount payable under contract
1. Torts
2. › Negligence
3. › Negligent misstatement
4. › Breach of duty
5. › Whether breach identified by tribunal capable of being causative of loss
6. › Failure to apply comparable sales method as check on hypothetical subdivision method
1. Practice and Procedure
2. › Appeals
3. › Appeal on question of law from VCAT
4. › Whether new question of law may be raised after leave granted on different question
5. › Power of court to make order tribunal could have made
6. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148

Quick Take

Where a valuer knows that a party is contractually obliged to act consonantly with a valuation, that party need not prove it was induced to act on the faith of the valuation's reliability in order to establish causation for a negligent misstatement claim. The contractual obligation to act in accordance with the valuation, combined with the valuer's knowledge of that obligation, is sufficient. A disclaimer in a valuation report will not negate a duty of care where the valuer knew the third party would depend on the valuation for the very purpose for which it was prepared.