Elephant or Mule? The Menagerie of the Law Relating to Economic Loss

Introduction

1. The earliest versions of the parable of the blind men and the elephant are found in Buddhist, Hindu and Jain texts. It goes roughly like this:A group of blind men heard that a strange animal, called an elephant, had been brought to the town, but none of them were aware of its shape and form. Out of curiosity, they said: “We must inspect and know it by touch, of which we are capable”. So, they sought it out, and when they found it they groped about it. The first person, whose hand landed on the trunk, said, “This being is like a thick snake”. For another one whose hand reached its ear, it seemed like a kind of fan. As for another person, whose hand was upon its leg, said, the elephant is a pillar like a tree-trunk. The blind man who placed his hand upon its side said the elephant, “is a wall”. Another who felt its tail, described it as a rope. The last felt its tusk, stating the elephant is that which is hard, smooth and like a spearIn some versions, the men fall into disagreement about what this creature is.  In at least one version a sighted man enters the parable and describes the entire elephant from various perspectives; the blind men then learn that they were all partially correct and partially wrong.[1]
2. As you will soon see, there are parallels to the law of negligence relating to economic loss; but a recent High Court decision has now engaged a different metaphorical animal.

A brief background

3. As a general rule, damages are not recoverable in negligence for pure economic loss, and ordinarily, a person does not owe a duty to take reasonable care to avoid causing reasonably foreseeable pure economic loss to another.[2]
4. This position dates back to the 19th Century[3] and reflects policy choices about which rights or interests are legally protected, indeterminacy of liability, and the legitimate pursuit of personal advantage.[4]
5. Caltex Oil (Aust) Pty Ltd v Dredge Willemstad[5] was the case in which the High Court “struck out on its own” and “breached the dam” against liability for economic loss outside of negligent misstatement.[6] 
6. Despite this, a generally applicable approach for cases about economic loss has proven elusive, at least in Australia. 
7. The High Court has rejected the two-stage approach in Anns v Merton London Borough Council based on reasonably foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman, and Canadian reformulations.[7]
8. Our modern law proceeded initially by reference to the touchstone of proximity[8], a concept which generated much debate and little certainty.[9]  Proximity was then discarded[10] in favour of the so-called ‘salient features’ approach[11], which is with us today; although, as I will point out later on, the latest decision in this area gives us reason to think that it is now being stalked and may eventually become a victim of the predatory lion of jurisprudential development.
9. But first, we should accurately define economic loss so that we can recognise it for what it is, lest we suffer the same fate as the proverbial blind men.

What is economic loss?

10. The definition of economic loss can conveniently be taken from the reasons of Deane J, in Sutherland Shire Council v Heyman[12] who defined “mere economic loss” as:

 “…economic loss which is not consequential on ordinary physical injury to one’s person or property”[13].

11. Simple, right?
12. Some examples can be considered.
13. First example: what if there is a defect in a building when it is built? Is that property damage?
14. In Sutherland, Deane J went on to say:

“Nor is the Respondent’s claim in the present case for ordinary physical damage to themselves or their property.  Their claim, as now crystallised, is not in respect to damage to the fabric of the house or to other property caused by collapse or subsidence of the house as a result of the inadequate foundations.  It is for the loss or damage represented by the actually inadequacy of the foundations, that is to say, it is for the cost for remedying the structural defect in their property which already existed at the time when they acquired it… Whatever may be the position with respect to consequential damage to the fabric of the building or to other property caused by the subsequent collapse or subsidence, the loss or injury involved in the actual inadequacy of the foundations cannot, in the case of a person who purchased or leased the property after the inadequacy existed but before it was known or manifest, properly be seen as ordinary physical or material damage.  The only property which could be said to have been damaged in such case is the building.  The building itself could not be said to have been subjected to ‘material, physical damage’ by reason merely of the inadequacy of its foundations since the building never existed otherwise than with its foundations in that state…”.[14] (emphasis added)

15. So, something is not ‘damaged’ if it is defective but only ever existed in its defective state.  It has not changed physically.  The only loss caused is the economic loss comprised in fixing up the defect.
16. Second example: what if we change the facts a bit, and the defect causes material physical damage to other parts of the same building?  For example, the defective foundations cause cracking in the walls?
17. Whilst the reasoning above would seem to suggest that there was at least some possible conceptual distinction between economic loss in the form of, say, the cost of remedying a defect in the building, and economic loss in the form of the cost of rectifying physical damage to the building, which is consequential upon a defect in that building, Deane J later indicated (obiter dicta) that there was, in his view, no such distinction, stating:

“…the evidence indicated that consequential damage was sustained by the fabric of the respondents’ house by reason of movement resulting from the inadequate foundations. While the damages awarded and upheld in the courts below were confined to the cost of remedying the inadequacy of the foundations and to interest thereon, it would seem appropriate that I indicate that I do not consider that the outcome of the present appeal turns upon any distinction between the inadequacy of the actual foundations and consequential damage to the fabric of the building. It seems to me, as at present advised, that any such consequential damage to the building itself resulting from inherent defect in the foundations is properly to be seen as falling within the same category as the damage involved in the inadequacy of the actual foundations, that is to say, as economic loss sustained by reason of the erection or purchase of the unsound building.”[15] (emphasis added)

18. That position was relevantly re-stated in Hawkins v Clayton[16] where Deane J said:

“The position is different in cases where all or some of the damage, be it in the form of physical injury to person or property or present economic loss, is directly sustained in the sense that it does not merely reflect diminution in value or other consequential damage which occurs or is sustained only when a latent defect which has existed at all relevant times becomes manifest.”[17] (emphasis added)

19. The statements have been picked up in some intermediate appellate authorities. 
20. For example, the Victorian Court of Appeal in Pullen v Gutteridge Haskins[18] rejected the proposition that a case in which there was consequential damage to the structure, as a result of a latent defect, distinguished it from one in which there was pure economic loss as a result of the need to rectify a latent defect to avoid such consequential damage[19].  See also Cyril Smith & Associates Pty Ltd v The Owners – Strata Plan No. 64970.[20]
21. The most direct statement of authority, supporting the proposition that consequential damage to the defective building is to be treated as economic loss, can be found in the United Kingdom.[21]
22. In Bellefield Computer Services Ltd v E Turner & Sons Ltd[22] the following passage from the decision of the trial Judge was cited with approval in the Court of Appeal:

“In my view, however, there is no conceptual or qualitative difference (and certainly none which I feel able to formulate) between the case of defective foundations which fail to cope with shrinkage or heave in the subsoil and to support the building, resulting in cracked walls and pipes, and the case of a defective roof which fails to cope with and to keep out water, and the case of the defective fire stop wall which fails to cope with and to contain fire which goes on to injure other parts of the same building.

If the resulting injury to the fabric of the building itself is to be seen as purely economic loss in the first two of those cases it must, in my view, be seen as economic loss in the third. The fabric of the Dairy on the side of the fire stop wall remote from the seat of the fire depended on the fire stop wall to protect it from the effects (great or small) of the spread of fire, just as the building on top of foundations depends on the foundations to protect it from the effects (great or small) of ground movement. In both cases the defective part of the structure has failed to keep other parts of the same building or property secure from the potentially dangerous agent as it was designed to do. In both cases the inherent defect is manifested by the effects (great or small) of the agent.”[23] (emphasis added)

23. Bellefield has been cited with approval in subsequent cases in the UK, for example Payne & Ors v John Setchell Ltd[24], Abbott & Anor v Will Gannon & Smith Ltd[25], Broster & Ors v Galliard Docklands & Anor[26].  See also Robinson v PE Jones (Contractors) Ltd[27].
24. So, consequential loss from a defect is still economic loss.  There is a physical change, but the loss is economic because it is still the consequence of the fact that the thing is defective and was always defective.
25. Second example, a tangent: note that in this context there is an idea that has come to be described as the “complex structure theory”.
26. In D & F Estates Ltd v Church Commissioners for England[28] Lords Bridge and Oliver proposed this theory.  It was stated as follows:

“However, I can see that it may well be arguable that in the case of complex structures, as indeed possibly in the case of complex chattels, one element of the structure should be regarded for the purpose of the application of the principles under discussions as distinct from another element, so that damage to one part of the structure caused by a hidden defect in another part may qualify to the treated as damage to ‘other property’, and whether the argument should prevail may depend upon the circumstances of the case”.[29]

27. The theory was discussed again in Murphy v Brentwood District Council[30], and whilst it was not rejected, it could be said that none of the law Lords expressed any great enthusiasm for a comprehensive adoption of the theory[31].
28. The theory has not found any practical acceptance in first instance and intermediate appellate cases in the UK.  It was rejected by the Court of Appeal in Warner v Basildon Development Corp[32] (albeit, before the decision in Murphy was published).  It was described as “unrealistic” in Bellefield[33] and was rejected, at least at a practical level, in Payne, Broster and Linklaters Business Services v Sir Robert McAlpine Ltd[34]. 
29. It is a marginal part of UK law, and has received no positive judicial treatment in Australia.[35]  The authors of Jackson and Powell on Professional Liability[36] have observed that the theory is difficult to justify at a policy level, because it entails the conclusion that the smaller of the amount of work done the greater the liability of the contractor (because a greater part of the work will be “other property”, for which the contractor may be liable if a defect causes damage to that property). 
30. So, we cannot artificially break up a thing into its component parts to try to make the damage caused by the defect into damage to something separate to the defective property.
31. Third example:  what about a case in which a fire that starts in one unit, and by reason of a defect in the fire protection in the first unit then spreads to a second unit, damaging it.  The units are separately titled, and so could be owned by another person, although they share walls and foundations.
32. The owner of the notional ‘second unit’ does not suffer loss because of a defect in that unit. It suffers loss because of a defect in the first unit, which allows the fire to escape.  The economic loss reasoning above cannot be applied to the second unit, because the owner has a (relevantly) non-defective unit; it is then damaged by fire.
33. There is a reasonable argument that the relevant harm is property damage.
34. Hopefully what the examples set out above demonstrate is that small changes to the facts need to be taken into account and might make a difference to whether or not we are dealing with economic loss.

Consequences

35. The consequences of an assertion that a party has suffered economic loss are probably innumerable.  Two are worth mentioning in the present paper.

The difficulty of establishing a duty

36. On the present state of the law, establishing a duty of care, in a novel case that is not within an established category of case where a duty is owed, requires a party to make out ‘salient features’ that justify the imposition of a duty.  A generally accepted list of salient features can be found in Caltex Refineries (Qld) Pty Ltd v Stavar.[37]
37. It is not easy to make out a duty.  In Woolcock Street Investments Pty Ltd v CDG Pty Ltd,[38] the High Court held that a designer did not owe a duty to take reasonable care in designing the foundations for a building, so as to avoid economic loss to subsequent purchasers of the premises.  In Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288[39] the High Court held that a builder did not owe a duty to take reasonable care in the construction of the building, so as to avoid economic loss to the body corporate that would ultimately come into existence on the completion of the building.  In Mallonland Pty Ltd v Advanta Seeds Pty Ltd (spoiler alert) the High Court held that a manufacturer of seed did not owe a duty to take reasonable care to avoid contaminants in the seed, so as to avoid economic loss on the part of the ultimate purchaser of the seed (from an intermediate party – the distributor).
38. In all of these cases, it would be reasonable to think that loss was foreseeable, and that the type of obligation entailed in the proposed duty was broadly consistent with a type of obligation that the relevant party would owe to other people.  The designer in Woolcock would have owed a duty to the party who engaged it to design the building,[40] and a duty to design the building so that it did not present a risk of personal injury to people using it.[41]  The builder in Brookfield would have at least owed a obligation to the property developer that engaged it, pursuant to the contract.[42]  The seed producer in Mallonland would likely have owed an obligation, at least in contract, to supply seed of a requisite quality to the distributor.  In each case the plaintiff was remote from the defendant, so that it could not practically secure a promise or other protection directly from it.
39. But, on the other hand in Woolcock the subsequent purchaser might have protected itself via its contract with the vendor; in Brookfield there were concerns about the legal coherence of the duty; in Mallonland there were conditions on the bags of seed that expressly denied any assumption of responsibility by the producer.
40. The point here is that in novel cases, the existence of a duty cannot be blithely assumed and requires careful attention to the nature of the relationship and the factors which point both for and against the imposition of a duty.
41. A particular category of economic loss which is worth mentioning, just in case it comes up somewhere:  “relational economic loss”.  This has been defined as loss that exists “when the Defendant damages property owned by a third party and the Plaintiff thereby suffers economic loss because of some relationship that exists between the Plaintiff and the third party”.[43]  The categories qualifying relationship had been identified as (1) cases where the claimant has possessory or proprietary interest in the damaged property; (2) general average cases; and (3) cases where the relationship between claimant and the property owner constitutes a joint venture.[44]
42. It was considered by the Queensland Court of Appeal in Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind”[45].  In Mallonland, Edelman J said this about it:

“Canadian law might allow a Plaintiff’s claim in such circumstances as a categorical exception that permits recovery of a ‘contractual relational economic loss’ in the absence of a right to person or property.  But it has been observed that the recoverability of pure economic loss in Canada has become ‘extraordinarily complex’ and that the failure of Canadian Courts ‘to insist that claimants seeking to recover pure economic loss demonstrate injury to a legally cognisible right is at root of much of the difficulty that the lawyers and judges have encountered in litigating and adjudicating such claims’.”[46]

43. This category may perhaps be seen as another confounding feature of the “elephant” of economic loss.

Limitation Periods

44. A cause of action can arise at a time at which the plaintiff is unaware that it has a claim against the relevant defendant.[47]  Thus, the mere fact that the plaintiff was ignorant of the facts constituting its cause of action is not enough to prevent time running. 
45. There are however cases which deal with latent defects in construction work which have held that the cause of action commences to run when the latent defect becomes manifest or is otherwise discovered. 
46. The genesis of the principle is in the judgment of Deane J in Sutherland Shire Council v Heyman[48].  Subsequently, in Hawkins v Clayton, Deane J had occasion to consider the issue again.  His judgment was referred to with approval by Mason CJ and Wilson J (who were otherwise in dissent in the case).  Deane J said:

“Kanloops [a decision of the Supreme Court of Canada] … was a case where economic loss had been sustained as a consequence of the development of a latent defect in a building.  Commonly in such cases, the building never existed and was never owned without the defect (in the absence of a consequential collapse or physical damage or injury) the only loss which could have been sustained by the owner was the economic loss which would be involved if and when the defect was actually discovered or became manifest, in the sense of being discoverable by reason of diligence …  The position is different in cases where all or some of the damage, be it in the form of physical injury to person or property or present economic loss, is directly sustained in the sense that it does not merely reflect a diminution in value or other consequential damage which occurs or is sustained only when a latent defect which has existed at all relevant times becomes manifest.  In those cases damage is sustained when it is inflicted or first suffered and the cause of action accrues at that time.”[49] (emphasis added)

47. The point being made in his Honour’s judgment is that if a latent defect is not damage, then the only loss suffered by the owner of the defective item is economic loss.  That loss is suffered only when the defect becomes known or makes itself manifest because only then does the diminution in the market value of the premises occur.[50]  It is only then that the owner is unable to honestly on-sell the building without reference to the defect[51].
48. The principles stated by Deane J in Hawkins v Clayton now seem to represent the law in Australia[52] and have been extended to case involving latent defects in title[53].
49. So, a cause of action for an economic loss claim will only arise when the economic loss is suffered; this may be well after the breach of duty has occurred if the consequences are latent or hidden. As such, the limitation period may not start to run for some time after the negligent act.

The development of the law in Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25

50. The following description of the case is taken from the decision of the majority:[54]

This case concerns whether a producer of commercial hybrid grain sorghum seed, sold in bags contaminated with the seed of another plant known as shattercane, is liable in negligence to commercial farmers who planted the seed and were subsequently required to take costly action to eliminate the contaminant…

The growers were farmers who conducted businesses involving the cultivation and sale of grain sorghum, which is a crop farmed for animal feed and biofuel. They commenced a class action in the Supreme Court of Queensland, in which they alleged that they purchased contaminated grain sorghum seed (labelled “MR43 Elite”) from a distributor authorised by the producer and consequently suffered pure economic loss in the form of reduced income and increased expenditure…

The growers had no way of detecting the contamination prior to planting. To prevent the shattercane from disrupting their grain sorghum growing businesses, the growers were required to stop growing sorghum and remediate the affected fields.

51. The bags of seed had prominent labels that set out:[55]

“Minimum Germination: 85%Minimum Purity: 99%Maximum Other Seeds: 0.1%Minimum Inert Matter: 0.5%”

and the following disclaimer:

“ATTENTION

CONDITIONS OF SALE AND USE

Upon purchasing this product and opening the bag, the purchaser (‘you’) agrees to be bound by the conditions set out below. Do not open this bag until you have read and agreed with all the terms on this bag. If, before opening the bag, these conditions are not acceptable to you, the product should be returned in its original condition to the place of purchase immediately, together with proof of purchase, for a refund. The product contained in this bag is as described on the bag, within recognised tolerances.

CONDITIONS

You agree that:

– You acknowledge that, except to the extent of any representations made by [the producer’s] labelling of the product in this bag or made in [the producer’s] official current … literature, it remains your responsibility to satisfy yourself that the product in the bag is fit for its intended use;

– If the product in this bag does not comply with its description, within recognised tolerances, the liability of [the producer] will be limited, at [the producer’s] option, solely to the cost of replacement of the product or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods;

– [The producer] will not be liable to you or any other person for any injury, loss or damage caused or contributed to by [the producer] (or its servants or agents), directly or indirectly arising out of or related to the use of the product in this bag, whether as a result of their negligence or otherwise”

52. Both the majority and Edelman J, writing separately but also agreeing with the majority’s reasons[56], rejected the appellant’s argument that the producer owed a duty of care to the growers.  In summary, the majority reasoned:[57]

1. Foreseeability of loss was necessary, but not sufficient for a duty;
2. The producer’s knowledge that, if it did not take reasonable care, there was a risk of loss fell far short of the sort of knowledge that would justify a duty;
3. The producer’s control over the production process was not absolute (in the sense that there was still a risk of contamination);
4. The growers could protect themselves, because the disclaimer on the bags allowed them to make an informed choice about whether or not to plant the seed;
5. The absence of indeterminacy and incoherence was not a positive reason to find a duty (as opposed to the absence of a factor against such a finding).

53. The reasoning is a further emphasis of the multi-factorial nature of the salient features approach.
54. One interesting feature of the reasons is that the majority bothered to record that:

“This ‘salient features’ approach, as it is now known, has attracted significant academic and judicial criticism. However, neither the growers nor the producer argued that there should be a departure from the approach in this case.”[58] (footnotes omitted)

55. Edelman J accepted this position, at least for the disposition of the appeal.[59]
56. This is good, and bad for the humble lawyer.
57. The good is that there is at least a confirmation from the High Court that the salient features approach is the current law.
58. The bad is that it confirms that this approach is as hard to apply and as unhelpful as we all thought; and it suggests that the High Court is waiting for an opportunity to reconsider it and, perhaps, dispense with it.
59. In fact, Edelman J went further than the majority. His Honour’s reasons commence:

“We should not attempt to breed from a mule.”[60]

60. The “mule” is the reasoning of Stephen J in Caltex, which is the progenitor of the salient features approach.  The reasons of Edelman J go on to contend that this reasoning was wrong and should never have been followed, such that “…the recognition of a duty of care to avoid exposing another to “pure” economic loss in circumstances of “salient features” has given rise to the highly unsatisfactory state of the present law with the effect that until Caltex and its progeny are challenged or rationalised, a duty of care based upon “salient features” must be confined as narrowly as possible…”.[61]
61. Another useful feature of the reasons is the confirmation that the High Court under Gageler CJ is likely to continue the restrictive approach to claims for economic loss that has been a feature of previous decisions of the Court. Whatever might come along after ‘salient features’ is ‘put down’ is unlikely to expand the areas in which a duty of care to avoid economic loss will arise.

Conclusion

62. For some time now, arguments over an alleged duty of care to avoid economic loss have resembled the parable of the blind men. Some lawyers grasp features like foreseeability or vulnerability and claim that what they have in hand is a clear case of a duty.  Others grasp the ability to protect oneself via contract, or by making an informed decision about entry into a transaction and claim that they have in hand a clear defence to the claimed duty.  It is, however, only by looking at all of these features that the true position can be accurately identified.
63. But, perhaps even the “sighted man” – the High Court – has got it wrong.  Is the elephant in fact a mule that should have been left alone?
64. Stay tuned…

[1] Wikipedia

[2] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25 at [30]

[3] See the analysis in Tarangau Game Fishing Charters Pty Ltd v Eagle Yachts Pty Ltd and Anor [2013] QSC 16 at [71]ff

[4] Mallonland at [31]

[5] (1976) 136 CLR 529

[6] Tarangau at [85], [105]

[7] Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [101] and the cases cited therein.

[8] See for example the statement in Bryan v Maloney (1995) 182 CLR 609 at 617

[9] Leading one frustrated commentator to observe ((2000) 19 Aust Bar Rev 167):

“Attempts to define the boundaries in this country of a duty to take reasonable care have plainly failed. This is despite (or perhaps because of) the prolix judgments and copious articles that have been written on this subject over the past 20 or so years. Unlike Dorothy on her adventure to the Land of Oz, there is no clearly marked path guiding us towards an answer to the question: “When am I liable to another in damages for causing injury in the form of pure economic loss?”” (footnotes omitted)

[10] See the cases cited in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [18], esp. Sullivan v Moody (2001) 207 CLR 562 at 578-579 [48].

[11] Mallonland at [36]

[12] (1985) 157 CLR 424. 

[13] Supra at 502.

[14] Supra at 503-4.

[15] Supra at 511-512.

[16] (1988) 164 CLR 539.

[17] Supra at 588.

[18] [1993] 1 VR 27.

[19] Supra at p. 69-70.

[20] [2011] NSWCA 181 at [15]-[16], [18].

[21] There is a reasonable basis to think that the Australian Courts would apply the approach in Bellefield.  First, the way in which it deals with consequential loss is consistent with the reasoning in Sutherland, and in Hawkins, and therefore consistent with such statements as there are in the High Court about this topic.  In addition, in Murphy v Brentwood District Council [1991] AC 398 at 466-7 the House of Lords adopted the definition of economic loss from Sutherland.

[22] [2000] BLR 97.

[23] The passage is cited with approval by Wall J (who seems to be erroneously identified in the judgment as Mr Justice May), with whom Tuckey LJ seemed to agree.

[24] [2001] EWHC 757 (TCC) [31]-[32].

[25] [2005] EWCA Civ 198 at [13].

[26] [2011] EWHC 1722 (TCC).

[27] [2012] QB 44 at [50].

[28] [1989] AC 177.

[29] Supra at 207.

[30] Supra

[31] See 470H, 478E, 497C and 484D.

[32] (1991) 7 Const LJ 146.

[33] See the judgment of Schiemann LJ.

[34] [2010] EWHC 2391 (TCC).

[35] Eg Bryan v Maloney at 617

[36] 7th Edition at 9-089.

[37] Supra at [103].

[38] Supra.

[39] (2014) 254 CLR 185.

[40] Astley v Austrust (1999) 197 CLR 1

[41] Voli v Inglewood Shire Council (1963) 110 CLR 74.

[42] The contract contained detailed provisions governing this liability, which were referred to in the reasons, see [139], [144]-[145].

[43] Perre v Apand Pty Ltd (1991) 198 CLR 180 at [96]-[97]. 

[44] Perre v Apand (supra) at [98].

[45] [2008] 1 Qd R 429.

[46] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25 at [73].

[47] Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 782-3; Hawkins v Clayton (1988) 164 CLR 539 at 543, 560-1, 587-8 and 598-62; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 540, 554-5.

[48] (1985) 157 CLR 424 at 503-5.

[49] (supra) at 587-8.

[50] These points are drawn out in the judgment of Deane J in Sutherland Shire Council v Heyman (supra) at 503-5.  See also the analysis in Pullen v Gutteridge Haskins & Davey [1993] 1 VR 27 at 67-8.

[51] See Scarcella v. Lettice (2000) 51 NSWLR 302 at [19], [21], cf [32].

[52] See Scarcella v Lettice (supra) at [16]-[17]; Cyril Smith & Associates Pty Ltd v Owners Strata Plan No 6497 [2011] NSWCA 181 at [10].

[53] See Scarcella v Lettice (supra) at [18]-[22].

[54] At [1], [4], [6]

[55] At [8], [9]

[56] At [59]

[57] See [42], [50]-[56]

[58] At [36]

[59] At [59]

[60] At [58]

[61] At [59]