D'Aquino v Trovatello - [2015] VSCA 78

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0123

FRANCESCO GIUSEPPE D’AQUINO (AS TRUSTEE OF THE D’AQUINO ENDOWMENT TRUST)	First Applicant
FELICE D’AQUINO (AS TRUSTEE OF THE D’AQUINO ENDOWMENT TRUST)	Second Applicant
ROCK POSTERS PTY LTD (ACN 006 740 852)	Third Applicant
v
FELICE TROVATELLO MARIA TROVATELLO ANDFANO NOMINEES PTY LTD (ACN 119 292 947) RAYFANO NOMINEES PTY LTD (ACN 119 292 974) LULINO NOMINEES PTY LTD (ACN 119 292 956)	First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent

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JUDGES:	WARREN CJ, ASHLEY and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2015
DATE OF JUDGMENT:	1 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 78
JUDGMENT APPEALED FROM:	D’Aquino & Ors v Trovatello & Ors [2014] VCC 1460

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PRACTICE AND PROCEDURE — Summary judgment – Claim for damages for continuing nuisance — Defence based on Limitation of Actions Act 1958 — Whether claim had ‘no real prospect’ of overcoming limitations defence within meaning of s 63 of Civil Procedure Act 2010 — Inadequate evidence before trial judge to give summary judgment — Appeal allowed.

TORT — Nuisance — Damage alleged to be attributable to state of affairs commencing prior to limitation period and to subsequent conduct — Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127; Sutherland Shire Council v Heyman (1985) 157 CLR 424, considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J A F Twigg QC with	Aitken Partners
Dr K Weston-Scheuber
For the First and Second Respondents	Mr A Klotz	Norris Coates
For the Third, Fourth and Fifth Respondents	Mr R Andrew	Rigby Cooke

WARREN CJ:

I have had the considerable benefit of reading the judgment of McLeish JA in draft. I agree with his Honour’s reasons and the disposition he proposes.

ASHLEY JA:

I agree in the reasons of McLeish JA and with the orders which his Honour proposes.

McLEISH JA:

This appeal concerns a dispute which arose after a concrete slab was cast on land in Thornbury in about May 2002. The slab encroached over the boundary of the adjoining land. The following year, the owners of that land observed damage to a factory situated on it, close to the common boundary.

The adjoining owners commenced a proceeding in the County Court on 21 June 2013 claiming damages by reason of trespass, nuisance and negligence. A judge of the County Court ordered the summary dismissal of the proceeding on the ground that the plaintiffs would have no real prospect of succeeding with their claims by reason of the Limitation of Actions Act 1958. Judgment was entered for the defendants.

The applicants seek to have judgment against them set aside. For the reasons that follow, I would grant leave to appeal, if necessary, and allow the appeal.

Factual background

The first and second applicants have been the owners and occupants of the land at 226 Normanby Avenue Thornbury since about 20 February 2002. Since around that time, the third applicant has operated…

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: [2015] VSCA 78
Decision Date: 1 May 2015

CaseChat Overview and Summary

D’Aquino v Trovatello involved a dispute between the plaintiff, D'Aquino, and the defendant, Trovatello, concerning a claim for damages due to a continuing nuisance. The case was heard in the Court of Appeal of Victoria. D'Aquino sought damages for a nuisance created by Trovatello's property, which allegedly started prior to the expiration of the limitation period and continued thereafter. Trovatello defended the claim by invoking the Limitation of Actions Act 1958, arguing that the plaintiff’s claim had no real prospect of success in light of the limitation defence. The plaintiff appealed the trial judge’s decision to dismiss the claim on the basis of summary judgment.

The court needed to determine whether the evidence presented was sufficient for the trial judge to conclude that the plaintiff's claim had no real prospect of success in overcoming the defendant's limitations defence under section 63 of the Civil Procedure Act 2010. It was essential to consider whether the plaintiff had provided adequate evidence to warrant a trial on the merits, particularly in relation to the claim that the nuisance continued beyond the limitation period. The court also had to examine the application of legal principles from Darley Main Colliery Co v Mitchell and Sutherland Shire Council v Heyman to assess the continuity of the nuisance and its impact on the limitation period.

In allowing the appeal, the court found that the evidence before the trial judge was insufficient to definitively conclude that the plaintiff's claim had no real prospect of success. The court held that the trial judge should not have dismissed the claim on summary judgment grounds without allowing the plaintiff an opportunity to present a full case. The court noted that the plaintiff had presented evidence that required a trial to determine the extent of the nuisance and its impact on the limitation period. Consequently, the court quashed the decision of the trial judge and remitted the case for further proceedings.

The court ordered that the case be returned to the trial court for a full hearing, where the plaintiff would have the opportunity to present their full case and the trial judge could properly assess the evidence and arguments presented.

Orders