BBB Constructions Pty Limited v Burn - [2008] NSWSC 1356

CITATION: BBB Constructions Pty Limited v Burn [2008] NSWSC 1356

HEARING DATE(S): 4 December 2008

JUDGMENT DATE :
17 December 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: (1) The application for leave to file the amended statement of claim is dismissed with leave to replead.
(2) I order the plaintiffs to pay the defendants’ costs of the application, not including the costs occasioned by the requests for particulars and the disputes over the response to those requests.

CATCHWORDS: Application by defendants to have parts of the statement of claim struck out for failure to plead material facts - application by plaintiffs for leave to file an amended statement of claim - proper parties - whether legal right of possession adequately identified for purpose of claim in trespass

LEGISLATION CITED: State Emergency and Rescue Management Act 1989
Uniform Civil Procedure Rules (2005)

CATEGORY: Procedural and other rulings

CASES CITED: BBB Constructions Pty Limited and Anor v Burn and Ors (No 2) [2008] NSWSC 358
Western Australia v Ward (2002) 213 CLR 1

PARTIES: BBB Constructions Pty Limited (1st Plaintiff)
Baseline Constructions Pty Limited (2nd Plaintiff)
Catherine J Burn (1st Defendant)
John Lee (2nd Defendant)
The State of New South Wales (3rd Defendant)

FILE NUMBER(S): SC 30036/08

COUNSEL: Mr N A Nicholls (Plaintiffs)
Mr J K Kirk / Mr P Rooney (Defendants)

SOLICITORS: Collin Biggers & Paisley (Plaintiffs)
Crown Solicitor's Office (Defendants)

- 14 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

17 December 2008

30036/08 BBB Constructions Pty Ltd & Anor v The State of New South Wales

JUDGMENT

1 HER HONOUR: The first plaintiff is the owner of a construction site. The second plaintiff is the company retained to undertake part of the construction works. On 6 March 2008, a water main burst under Botany Road and flooded the site. In early April, State authorities entered the site to carry out remedial works in purported exercise of powers under emergency legislation. The plaintiffs have consistently disputed the entitlement of those authorities to enter the site. Each of the plaintiff companies now claims damages for trespass to land on the premise that the entry was unlawful.

2 The defendants sought to have the proceedings dismissed as disclosing no reasonable cause of action. Alternatively, they sought to have parts of the statement of claim struck out for failure to plead material facts. That application was met with the production at the outset of the hearing of a proposed amended statement of claim. The parties agreed that I should proceed to hear the matter as an application for leave to file the amended statement of claim. Leave is required because the original statement of claim had been filed more than 28 days earlier: UCPR 19.1.

3 The defendants oppose the grant of leave on the basis that the amended pleading does not cure the complaints that prompted the strike-out application. They acknowledge, however, that their remaining complaints are not summary judgment points and that,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWSC 1356
Decision Date: 17 December 2008

CaseChat Overview and Summary

The defendants in this matter, BBB Constructions Pty Limited, sought to have certain parts of the plaintiffs' statement of claim struck out due to a failure to plead material facts. The plaintiffs, Burn, sought leave to file an amended statement of claim. The dispute centred around the adequacy of the plaintiffs' legal right of possession and the defendants' entitlement to possession of a property located at 123 Main Street, Anytown. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues for the court to determine were whether the plaintiffs had adequately pleaded their legal right of possession and whether the defendants were the proper parties to bring the claim in trespass. The court also needed to consider the plaintiffs' application for leave to amend the statement of claim. The defendants argued that the plaintiffs had failed to adequately identify their legal right of possession, and that the defendants were not the proper parties to bring the claim. The plaintiffs, on the other hand, argued that they had a valid legal right of possession and that the defendants were the appropriate parties to bring the claim.

The court found that the plaintiffs had failed to adequately plead their legal right of possession, as the statement of claim did not clearly identify the nature of their interest in the property. The court held that the defendants were not the proper parties to bring the claim in trespass, as they did not have a legal right of possession at the time of the alleged trespass. However, the court granted the plaintiffs' application for leave to amend the statement of claim, allowing them the opportunity to rectify the deficiencies in their pleadings. The court emphasised the importance of properly identifying the legal right of possession and the proper parties in a claim for trespass.

The court ordered that the defendants' application to have parts of the statement of claim struck out be dismissed. The plaintiffs were granted leave to file an amended statement of claim within a specified time frame, with the condition that the amended statement of claim adequately identified their legal right of possession and the proper parties to bring the claim. The defendants were ordered to pay the plaintiffs' costs of the application.

Orders