Western Districts Developments Pty Limited and Turnpike Lane Pty Limited v Baulkham Hills Shire Council

(2009) 75 NSWLR 706; [2009] NSWCA 283

NSW Court of Appeal

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Interrogate

Catchwords

1. Torts
2. › Negligence
3. › Duty of care
4. › Pure economic loss
5. › Exercise of statutory power
6. › Issue of subdivision certificate by principal certifying authority
7. › Whether duty of care owed to prospective purchasers of subdivided allotments
8. › Vulnerability of purchasers
9. › Environmental Planning and Assessment Act 1979 (NSW), ss 109C, 109D, 109E, 109J
1. Torts
2. › Negligence
3. › Duty of care
4. › Pure economic loss
5. › Vulnerability
6. › Whether prospective purchasers unable to protect themselves from consequences of misexercise of statutory power
7. › Whether ability to make inquiries negates vulnerability
8. › Whether corporate status relevant to vulnerability
1. Torts
2. › Negligence
3. › Duty of care
4. › Public authorities
5. › Exercise of statutory power
6. › Principal certifying authority issuing subdivision certificate
7. › Analogy with manufacturer putting defective commodity into circulation
1. Appeal
2. › Appeal from Local Court to Supreme Court
3. › Erroneous in point of law
4. › Whether finding on existence of duty of care is question of law
5. › Whether finding of vulnerability is question of fact or law
6. › Local Courts Act 1982 (NSW), s 73(1)

Quick Take

A principal certifying authority owes a duty of care to prospective purchasers of subdivided allotments when exercising the statutory power to issue a subdivision certificate under the EPA Act. Prospective purchasers are vulnerable because they cannot protect themselves from the consequences of a misexercise of the power to issue the certificate — the ability to make inquiries after the fact does not negate vulnerability, and purchasers are entitled to assume the certifying authority has satisfied itself of compliance with s 109J requirements. Corporate status does not affect the vulnerability analysis. The potential application of the Civil Liability Act 2002 to such claims was expressly left open.