Crugnale v FAGENTS

[2001] WADC 300

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   ALBANY

CITATION:   CRUGNALE & ANOR -v- FAGENTS & ANOR [2001] WADC 300

CORAM:   BLAXELL DCJ

HEARD:   30 JULY 2001

DELIVERED          :   30 JULY 2001

FILE NO/S:   CIV 76 of 1994

BETWEEN:   FERNANDO ANTONIO CRUGNALE

MARISA GIVLIANA CRUGNALE
Plaintiffs

AND

ROBIN ANTHONY FAGENTS
JANET FAGENTS
Defendants

Catchwords:

Practice and procedure - Application by defendants for summary judgment - Application adjourned pending trial of preliminary issue - Turns on own facts

Legislation:

Nil

Result:

Defendants' application for summary judgment refused
Order that action proceed to expedited trial subject to further amendment of statement of claim

Representation:

Counsel:

Plaintiffs:     Mr A E Stavrianou

Defendants:     Mr I A Morison

Solicitors:

Plaintiffs:     G A Lacerenza & Associates

Defendants:     Haynes Robinson

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. BLAXELL DCJ: In this matter I have previously made interlocutory decisions in respect of the third party proceedings (20 June 2001 – [2001] WADC 145) and in respect of the defendants' application for summary judgment (7 September 2001 – [2001] WADC 213). In my reasons for the second of those decisions I expressed an intention to refuse the defendants' application for summary judgment. However, at the time of delivering the decision, I heard further submissions from counsel and agreed that it was more appropriate to adjourn the application pending the determination of a preliminary issue.

2. The preliminary issue was heard and determined on 19 November 2001.  Following further submissions from counsel on 30 July 2002, I made an ex temporare decision confirming that the application for summary judgment should be dismissed.  I now provide the following reasons for that decision. 

The current state of the proceedings

1. On 7 September 2001 I granted the plaintiffs leave to amend their statement of claim.  The need for that amendment arose from the appointment of an independent expert surveyor pursuant to O 40, r 2 of the Rules of the Supreme Court.  Whereas the plaintiffs had previously claimed that the subsidence and alleged loss of soil from their land had occurred in 1993, the report from the independent surveyor established that a significant reduction in ground level had occurred between 1991 and 1992.  Following the amendment, the statement of claim alleged that these events had occurred "in 1991 or early 1992 and also in or about July 1993". 

2. As the substantial issue to be determined was the question of who was responsible for the reduction in ground level in 1991/1992, I ordered that there should be a trial of the following preliminary question: 

   "Did the defendants, either themselves or by their authorised agents or contractors, excavate the plaintiffs' land in 1991 or 1992?" 

3. The hearing of the preliminary question took place in Albany on 19 November 2001.  Somewhat surprisingly, the plaintiffs did not produce evidence that the defendants had excavated their land at the material time, but instead attempted to prove that excavations on the defendants' land had caused a subsidence on their own land.  During the course of the hearing the plaintiffs also applied to amend the preliminary question so that it would read as follows: 

   "Did the defendants, either themselves or by their authorised agents or contractors, reduce the height of the natural level of the plaintiffs' land in 1991 or 1992?" 

4. Before ruling on this application to amend the preliminary question I heard all of the evidence produced by the plaintiffs.  Apart from Mr Crugnale, the plaintiffs called an earthmoving contractor, Mr G L Watt, who had been engaged by the defendants to clear their land in either late 1991 or early 1992.  Mr Watts' testimony was to the effect that he had simply cleared the defendants' land of vegetation and had also grubbed out some tree stumps in the vicinity of the boundary between the plaintiffs' and defendants' lots.  His evidence did not disclose any earthmoving activity capable of causing the alleged subsidence of the plaintiff's land. 

5. There was also evidence from Mr Crugnale that prior to 1991 he had arranged for 10 truck loads of sandfill to be dumped along the lowest section of his land and immediately adjacent to the boundary with the defendants' land.  Although these heaps of sand subsequently settled and spread to some extent, they remained in situ throughout the period when (according to the expert surveyor, Mr Colin Shipp) there had been a significant reduction in the natural surface of the plaintiffs' land. 

6. It was self‑evident that the evidence could not establish that the activities of the defendants' contractor in 1991 or 1992 had caused subsidence of the plaintiffs' land, and I accordingly refused the application to amend the preliminary question.  I also determined that the plaintiffs had failed to discharge their burden of proving that the defendants had excavated their land in 1991 or 1992, and accordingly answered the preliminary question in the negative. 

7. The preliminary question having been so determined, I called for submissions as to whether any real issues remain to be tried.  Counsel required time to consider the matter, and the proceedings were then adjourned on the basis that they would be relisted at the earliest opportunity. 

8. Unfortunately there was then a considerable delay in progressing the matter, largely because of a change in the plaintiffs' legal representation.  However, after hearing further submissions on 30 July 2002, I decided that there were residual issues to be tried and that the defendants' application for summary judgment should accordingly be refused. 

The reasons for refusing summary judgment

1. The contents of the relevant affidavits and the viva voce evidence heard on 19 November 2001 establish two incontrovertible facts.  Firstly, that the level of the ground along the boundary between the plaintiffs' and the defendants' land was significantly reduced between 1991 and 1992.  (The extent of this reduction was along a length of approximately 15 metres, to a width of up to 7 metres, and to a depth of up to 1.43 metres.)  Secondly, that throughout this same period, the 10 truck loads of sandfill which the plaintiffs had had dumped along the same piece of land, remained in situ. 

2. To my mind, these facts seem to be contradictory, but neither of them is challenged by either the plaintiffs or the defendants.  I have already found that the reduction in ground level was not caused by any excavation by the defendants on the plaintiffs' land during 1991 or 1992.  This being so, the plaintiffs rely upon an inference that there must have been some activity on the defendants' land in 1991 or 1992 which caused subsidence of the plaintiffs' land while the sand piles remained in situ on top. 

3. The evidence of Mr Watt did not suggest any activity capable of causing such subsidence, and I have some difficulty in conceiving how the plaintiffs' land could have subsided given the surrounding circumstances.  Nevertheless, in the absence of evidence which might provide an alternative explanation, it would be open to the Court to draw an inference as contended by the plaintiffs. 

4. The evidence before me also raises an issue as to whether or not there was some additional subsidence and/or excavation of a more minor nature on the plaintiffs' land in 1993 as a result of the defendants' activities at that time.  In this regard, paragraph 4 of the affidavit of the licensed surveyor, Mr E A Harley, (sworn 13 August 1999) expresses the opinion that the retaining wall erected by the defendants in 1993 "should have supported up to 2.4 metres of natural ground" instead of the actual retained level of soil of up to 2.1 metres. 

5. In light of these aspects of the evidence, I consider that the following real issues remain to be tried: 

   1.Whether in 1991 or 1992 the defendants excavated their land so as to cause the reduction of the level in the plaintiffs' land as identified by Mr Shipp. 

   2.Whether the excavations on the defendants' land in 1993 caused any subsidence in the plaintiffs' land at that time. 

   3.Whether the defendants when excavating their land in 1993 also carried out excavations on the plaintiffs' land. 

   4.In the event that any or all of the above issues are answered in the affirmative, whether the plaintiffs are entitled to the damages and relief claimed. 

Conclusions

1. It follows that there should be a trial of the residual issues.  I have also ordered that paragraph 6 of the amended statement of claim should be further amended to clarify that the alleged excavation is said to have occurred in 1993.  I also intend to give appropriate orders and directions to ensure that the proceedings are concluded expeditiously.