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Good faith

Lee and Robert Rumble v Liverpool Plains Shire Council & Ors [2012] NSWDC 95. Mahony DCJ. 5.7.12.

 190 The onus of proof as to good faith is on the defendants: Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 at [47] (in relation to s 733 LGA).

None of the individual defendants, being employees of the Council, or its subcontractors were challenged on their evidence. I therefore find that what they did in relation to the trespass to the plaintiffs' property on 13 and 14 August 2009 was done in good faith and was done by them acting under the direction of Mr Prendergast, for whom the 1st defendant was vicariously liable. I therefore find that they are not personally liable in any way to the plaintiffs in respect of the plaintiffs' claims against them.

 191 I further find that the immunity in s 731 applies to Mr Prendergast on the basis of the evidence set out in para 109 above, which was not challenged by the plaintiffs.

The test to be applied in assessing whether a defendant acted in good faith is an objective one: Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290. Notwithstanding my comment about Mr Prendergast in para 164 above, I find that he was acting in good faith so as to engage the immunity pursuant to s 731.


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