Cavanagh v Sunners

[2000] NTSC 2

Cavanagh v Sunners [2000] NTSC 2

PARTIES:CAVANAGH, Peter William

AND

CAVANAGH, Sheelagh Teresa

v

SUNNERS, Neil Fred Barry

AND

SUNNERS, Desley Anne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:165 of 1998 (9817418)

DELIVERED:  7 January 2000

HEARING DATES:  10 December 1999

JUDGMENT OF:  MARTIN CJ

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE

Interlocutory application – application for leave to amend Statement of Claim – category “C” matter – proposed amended Statement of Claim embarrassing to plead to – failure of plaintiffs to provide particulars – original Statement of Claim unsatisfactory – dismissal of proceedings.

Supreme Court Rules (NT)

Williams – Civil Procedure in Victoria – par 13.11.100.

REPRESENTATION:

Counsel:

Plaintiff:M Spargo

Defendant:L Silvester

Solicitors:

Plaintiff:Peter McQueen

Defendant:Noonans

Judgment category classification:    C

Judgment ID Number:  mar99043

Number of pages:  7

Mar99043

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Cavanagh v Sunners [2000] NTSC 2
No. 165 of 1998

BETWEEN:

PETER WILLIAM CAVANAGH

First Plaintiff

AND

SHEELAGH TERESA CAVANAGH
Second Plaintiff

AND:

NEIL FRED BARRY SUNNERS

First Defendant

AND

DESLEY ANNE SUNNERS
Second Defendant

CORAM:    MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 7 January 2000)

1. Application for leave to file and serve an amended Statement of Claim. 

1. Broadly speaking, the plaintiffs claim that the defendants, who own adjacent land, in 1997:

(a)    excavated earth for the purpose of constructing a dam;

(b)    spread the excavated earth over an area of existing high ground;

(c)    constructed a dam wall upon the defendants’ land,

and that:

(d)  the relocated excavated earth has raised the height of a portion of the defendants land such that it is now higher than the plaintiffs;

(e)    rainwater now runs from the defendants land to the plaintiffs land;

(f)     the dam now obstructs a watercourse which ran from the plaintiffs’ land onto the defendants’ land which has caused flooding on the plaintiffs property in specific circumstances;

(g)    in addition, the obstruction of the watercourse and relocation of the excavated earth now impedes the drainage of water from the soil on the plaintiffs’ land, that is, instead of draining away the rainwater has remained on the surface and saturated some of the plaintiffs land.

1. The plaintiffs frame their cause of action in nuisance.  They claim:

   (a)    to have suffered loss arising from destruction of mango trees by reason of flooding and saturation during the 1997/1998 wet season, they put the damage at $2,000;

   (b)    that the value of subdivisional potential of the land has been diminished by $115,000, and

   (c)    they were put to expense on repairing roads on their property in the sum of $1,000.

2. By way of particulars there is attached to the draft amended Statement of Claim, a surveyor’s map showing various heights of points upon the plaintiffs land, the rainwater levels said to have been reached before and after the earthworks were carried out, the areas on the plaintiffs land said to have been saturated, and areas wherein the damaged or destroyed mango trees are claimed to have been located.  A copy of that map is attached to these reasons.  It is not necessary for these purposes to reproduce the colours.  Suffice to say that the dark area is the area where the excavated earth is said to have been deposited by the defendants, and the oval on Lot A is said to be the dam.  The defendants own Lot A and the plaintiffs Sections 4462, 4463 and Lot P. 

3. The defendants oppose the proposed amendments.  Their major contention, echoing that about which they have been complaining since the original Statement of Claim, is that necessary particulars are not contained in the pleading (r 13.10(1)); they say they are unable to plead or to define the questions for trial and they are concerned that there may be some surprises in store for them.  They say they are now entitled to full particulars and should not be left to discover what the case is which they must meet during the interlocutory processes.  They base their protest upon the features of the plan.  They refer to their many attempts after the filing of the original Statement of Claim to obtain proper particulars, and say that this is the last opportunity which the plaintiffs should have to file and deliver a proper Statement of Claim.  They point to the following features on the plan:

   (a)    from a point adjacent to “test hole” as shown near the lines marked “limit of saturation” the level of the land slopes to the north west into a man made drain which would disperse any water to the north and away from the plaintiffs land.  Nothing is pleaded which puts them on notice as to the case which the plaintiffs intend to make out showing how the land became saturated in that area, nor how the defendants are said to have been responsible for it;

   (b)    the north easterly point of the defendants’ land is higher than the drain and lower than the “ground level near shed”.  It is higher than points to its immediate north, water will naturally flow away from the plaintiffs’ land and into the drain.  No detail is provided of the alleged increase in the height of the defendants’ land caused by the relocation of the excavated earth;

   (c)    no levels are depicted along the eastern boundary of the defendants’ land except at its northern and southern extremities, and no causal connection is shown by the particulars relating to the plaintiffs’ complaints regarding the defendants’ earthworks. 

   (d)    allegations concerning the previous flow of water off the plaintiffs land are meaningless unless details are given of the amount of rain which fell and the period of time during which it fell, so that comparison can be made with like figures for the period during which it is said that the defendants were responsible for the plaintiffs loss.  At par 9(a) of the draft, the plaintiffs acknowledge “high frequency of rain showers” during the period in which the loss is said to have been caused;

   (e)    no attempt is made to show the location on the plan of the watercourse to which reference is made in the draft.  It is not clear whether the reference to the “watercourse” is in its legal sense.  I note that it is alleged that the watercourse ran from a level of 33.8 metres AHD as it left the plaintiffs land and entered the defendants land, and that such a level is shown on the boundary between the two properties at a point near where there is the depiction of the dam.  The plaintiffs then say that the dam wall was constructed to a height of 34.55 metres and lowered in two stages to 34.40 and 34.25 metres.  No detail is given as to when those works took place.  The plaintiffs go on to allege that the difference between the height of the watercourse and the dam wall means that water will not flow away from their land through the watercourse unless the water level is high enough to flow over the dam wall.  Reference to the map shows that levels given for the extent of the 1998 flood, about which the plaintiffs complain, are higher than the greatest height of the dam wall.

4. The defendants also complain that the allegations as to loss are not properly particularised.  Although no denial is required as to allegations of loss and damage (r 13.12(4)), the defendants are entitled to particulars of the damages claimed in this case.  In my opinion the loss alleged is not in respect of the kind of damage which the law presumes to flow from the wrong complained of and to be its natural and probable consequence.  The plaintiffs must therefore warn the defendants in the pleading that the compensation claimed will extend to the damage and particularise any items capable of substantially exact calculation.  At the same time they must give to the defendants access to the facts which make such calculations possible and thus show the defendants the case that they have to meet.  They are entitled to this information so that they can seek expert advice and consider whether any offer of compromise should be made (see Williams – Civil Procedure in Victoria – par 13.11.100).  The plaintiffs have quantified the losses they allege and they should therefore provide particulars.

5. In defence of the draft pleading, counsel for the plaintiffs argued that they did not have to explain how they intend to get over the apparent problems as disclosed by the levels on the plan, that can be left to the evidence at trial; if experts are to be relied upon, then their reports will be made available in the usual course and the defendants will know well in advance of trial the way in which the plaintiffs intend to put their case; if the defendants cannot make sense of the material disclosed upon the plan, they should seek their own expert advice; there may be other matters upon which the plaintiffs will rely, such as soil types and depth of soil.  He contended that the problem was with the defendants understanding of the facts and those difficulties would be cleared up in the interlocutory stage of the proceedings.

6. I must say that all that sustains me in my view that the material facts and particulars have not been pleaded.  It is not for the defendants to be placed in a position of having to try and work out as the case proceeds just what it is that the plaintiffs intend to prove.  They are not entitled to the evidence, but they are entitled, at the beginning, to have the plaintiffs’ case fairly and openly before them.  They should not be put to expense whilst waiting for it to emerge. 

7. It would be simple enough for the defendants to simply deny or decline to admit what the plaintiffs put forward, but to do so would not limit the issues for trial because the issues would not have become apparent.

8. The plaintiffs have had ample opportunity to plead material facts and provide necessary particulars.  The history of that is set out in my reasons delivered on 30 July.  Leave to amend the Statement of Claim is refused.

9. The original Statement of Claim stands, but would prejudice, embarrass and delay the fair trial of the proceedings.  Furthermore, no sufficient particulars have been provided.  The opportunity to provide those particulars was given in the order made on 30 July.  The plaintiffs have not complied with the order. 

10. Order that the proceedings be dismissed.

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