BUILDING AND CONSTRUCTION – s 177 Conveyancing Act 1919 – “duty of care not to do anything on or in relation to land…” – whether developer’s decision to use particular support system was “doing something” in relation to land – whether developer’s decision to use particular support system was something that “removed the support provided by the supporting land” – whether developer’s decision to use particular support system was made without exercising reasonable care – relevance of departure from construction certificate
BUILDING AND CONSTRUCTION – s 109ZJ Environment Planning and Assessment Act 1979 – whether party was a “contributing party” – effect of agreement of all parties that it would not be alleged that, had a person been a party to the action, that person would have been a contributing party
NEGLIGENCE – causation – s 5D Civil Liability Act 2002 – whether failure to warn or advise can only be causative of loss if a warning or notification, if given, would have been acted upon in a way that prevented the loss – whether it is appropriate to attribute liability to someone who puts in place the preconditions that enable another person’s negligence to become effective – discussion of the principles governing causation under s 5D
AGENCY – whether one party contracted with another as agent for a third party, or whether that party separately contracted with the other in performance of contractual obligations to the third party
APPEAL – interference with judge’s finding of fact – Jones v Dunkel inference – enables tribunal of fact to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness – missing witness must have been expected to have been called by one party rather than other – inference not available where disputed issue is whether missing witness was agent for the party and no other reason to believe missing witness was in camp of that party
CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – discussion of for what proposition County Securities Pty Ltd v Challenger Group Holdings Pty Ltd  NSWCA 193 is authority – majority reasons do not have as their ratio any proposition about the availability of post-contractual conduct for the purpose of finding the terms of an agreement that is wholly or partly oral
CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – post-contractual conduct can be used for the purpose of finding the terms of an agreement that is wholly or partly oral when that conduct is an admission – Tomko v Palasty  NSWCA 258 – circumstances in which being an admission would not permit post-contractual conduct to be used to find terms of a wholly or partly oral contract
CONTRACTS – construction and interpretation – that a particular person is party to a contract is a matter of mixed fact and law – whether a party to litigation can make an admission concerning a matter of mixed fact and law – whether admission made by person other than party to the litigation can be admitted against that party – effect of the introduction of the Evidence Act 1995 to the pre-existing common law principles concerning admissibility of admissions for post-contractual conduct
CONTRACTS – construction and interpretation – admissibility and legitimacy of use of evidence of post-contractual conduct – post-contractual conduct can be used for the purpose of ascertaining the terms or the subject matter of an agreement that is wholly or partly oral regardless of whether the post-contractual conduct is an admission.
151. The trial judge cannot have been using the word “admission” in the sense it has in the Evidence Act . This is for three reasons.
152. First, the Dictionary to the Evidence Act provides:
” admission means a previous representation that is:
(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and
(b) adverse to the person’s interest in the outcome of the proceeding.
previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.”
Because Mr Browne’s answers to questions in cross-examination were given in the proceedings, they were not “previous representations” and therefore cannot be “admissions” for the purposes of the Evidence Act .