Cavanagh v Sunners

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…