D'Aquino v Trovatello
[2014] VCC 1460
•5 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
COMMERCIAL LIST
BUILDING CASES DIVISION
Case No. CI-13-03185
| FRANCESCO GIUSEPPE D'AQUINO & ORS | Plaintiffs | |
| v. | ||
| FELICE TROVATELLO & ORS | Defendants | |
---
JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2014 | |
DATE OF JUDGMENT: | 5 September 2014 | |
CASE MAY BE CITED AS: | D'Aquino & Ors v. Trovatello & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1460 | |
REASONS FOR JUDGMENT
---
Catchwords: Practice and procedure – Summary judgment – Building works and storage of materials by property owners and tenants detrimentally affecting foundations of the factory erected on the neighbouring property - Claims in negligence, nuisance and trespass – Limitation of actions defences – Whether plaintiffs’ claim has a “real prospect of success” in view of the defences.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J.A.F Twigg | Aitkin Partners |
| For the First and Second Defendants | Mr A. Klotz | Norris Coates |
| For the Third to Fifth Defendants | Mr R. Andrew | Rigby Cooke |
| Sixth Defendant | No appearance |
HIS HONOUR:
1The third, fourth and fifth defendants made application by summons filed 2 May 2014 for summary judgment against the plaintiffs. The application was first heard on
23 June 2014 when I made orders giving the plaintiffs the opportunity to re-plead their case against the third to fifth defendants, and also against the first and second defendants who had joined in the application.2The issue for determination on the application is whether the first to fifth defendants must inevitably succeed with their Statute of Limitations defence, or whether the plaintiffs can plead and sustain a claim that has a “real prospect of success” as that term in the Civil Procedure Act 2010 has been recently defined by the Court of Appeal.
3The dispute concerns adjoining properties in Normanby Avenue, Thornbury. The first and second plaintiffs own the property at no. 226 upon which a factory is erected where the third plaintiff conducts a printing and distribution business.
4The first and second defendants have, since September 1979, owned the adjoining property at no. 228 and formerly owned other land in the vicinity. The first and second defendants in about 2002 arranged for certain construction works to be carried out at no. 228, including the laying of a concrete slab. Since about 1 June 2006, the third to fifth defendants have occupied no. 228 for the purpose of conducting a garden supplies business.
5The concrete slab on no. 228 was constructed over the title boundary so that the edge of the slab rested on the concrete step or lip of the footing to the western wall of the factory on no. 226. This caused an additional load to the footings, and the piles below the footings, of the factory’s western wall. This resulted in the overloaded footings subsiding, causing distress and damage to the factory wall.
6The plaintiffs allege, in the recent further amended statement of claim, that the piles supporting the factory’s western wall on no. 226 have also been detrimentally affected.
7In about July 2006, it was sought to ameliorate the problem by saw cutting the concrete slab along the title boundary, save for part of the slab at the southern end of the properties. The portion of the slab that was cut remained in position, sitting on the top of the footings of the factory. The saw-cut portion of the slab was not removed until recently, at which time the southern end of the slab was also cut.
8The writ in the proceeding was issued on 21 June 2013 against the first to fifth defendants. A general indorsement on the writ claimed damages against the defendants “by reason of the defendants’ wrongful trespass to the property [no. 226], nuisance and negligence”.
9The plaintiffs’ loss and damage was particularised as “structural damage to the building on the property including but not limited to cracking and displacement of the interior wall panels of the building and concrete floor. Loss and damages caused from the interference with the plaintiffs’ use and occupation of the property, including inconvenience”.
10A statement of claim was delivered on 13 November 2013. In their defence dated 21 February 2014, the first and second defendants pleaded that the plaintiffs’ cause of action “did not accrue within 6 years before the commencement of this proceeding and is therefore barred by section 5(1)(a) of the Limitation of Actions Act 1958”.
11This allegation was particularised by the defendants stating that, “Each of the causes of action pleaded against the first and second defendant had accrued by 2004 or earlier by which time the plaintiffs had already suffered the damage complained of in this proceeding. To the extent that the alleged trespass continued after 2004, such trespass was not the cause of any loss or damage to the plaintiffs”.
12The third to fifth defendants also relied upon a statute of limitations defence alleging that “each of the causes of action pleaded against them (trespass, nuisance and negligence), accrued upon the incurring of damage” and that “the damage alleged in this proceeding was suffered…no later than 31 May 2004 when Mr Cilia observed significant structural distress with cracking to the concrete floor and panels along the western boundary”.
13The defence earlier stated that, “Mr Robert Cilia of Dome Consulting Pty Ltd [was] a registered engineer acting on behalf of the plaintiffs” and that “in his report of 4 October 2005 Mr Cilia stated that the rectification works would require [in relation to the factory on no. 226] removal of the entire roof, removal of wall panels, removal of suspended slab, installation of screw jacks, reinstatement of the panels, casting of a new suspended slab, reinstatement of the roof structure, repainting and repair works”.
14The report dated 4 October 2005, and an earlier report of Mr Cilia dated 30 June 2004, were also referred to upon the hearing of the application. In the report dated 30 June 2004, Mr Cilia stated:
“The distress in this building [the factory on no. 226] is a direct result of the failure of the piles which support the main structure of the building.
The failure of the pile and the resulting settlement of the pile is a direct result of the load applied along the boundary in the adjacent property.
This load includes the concrete slab, the concrete retaining wall blocks and the loose building material. It is apparent that the loading to this pile is approximately twice the design load.
It is considered that the following items be carried out:
…
2. A suitably qualified geotechnical consultant should be engaged to investigate and comment on the current condition of the pile and its founding material.
3. After the pile and its founding material has be[en] determined to be adequate and or repaired rectifications works could commence.
…
This work should be carried out immediately to avoid further distress to the building”.
15Mr Cilia, in the report dated 4 October 2005, stated:
“Our report dated 30th June 2004 outlines the problems occurring at the above mentioned project and the likely causes.
A review of the report has been undertaken and I would like to amend the cause of failure which has been previously listed as a “pile failure”. It is my opinion that this should read “bearing failure of the pile”.
…
The rectification procedure would involve the following:
1. Geotechnical investigation to ascertain the damage occurring at the base of the pile”.
The report set out other rectification works required, which the third to fifth defendants summarised in their defence, in the passage quoted earlier. In Mr Cilia’s report the item of rectification work, “installation of screw jacks”, was followed by the comment that, “The screw jacks will be required to underpin the existing footings and will require core barrelling to penetrate the underlying fill”. The rectification work was estimated to cost “in the vicinity of $150,000”.
16At the hearing of the application by the third to fifth defendants on 23 June 2014, the defendants (including the first and second defendants ) submitted that “each of the [plaintiff’s] claims is hopeless and bound to fail”. The defendants submitted that:
a.the cause of action in negligence accrued when damage was first suffered, even though it may continue to accrue. This was clearly prior to Mr Cilia’s first report in June 2004;
b.the cause of action in nuisance was limited to the damages suffered during the 6 year period preceding the issue of the writ, that is, after 21 June 2007;
c.the cause of action in trespass would similarly require loss and damage resulting from a trespass after June 2007, not “in and from about 2002” as then pleaded.
17After hearing argument on 23 June 2014, I directed the plaintiff to file and serve a further proposed amended statement of claim and affidavit material in support of the proposed further amendments. These further documents were required to address, amongst other matters, “the fact that no later than 31 May 2004, it became apparent to the plaintiffs that damage had occurred to the western side of the factory on their property as a result of the foundations on the adjoining property”.
18The order noted that, “The plaintiffs have, in their present pleading as to damages in respect of any of the causes of action, failed to properly differentiate between the damages arising prior to 21 June 2007 and after 21 June 2007”.
19The order noted that, “The mechanism by which the plaintiffs presently plead that damage occurred appears to be:
a.direct pressure by the intact slab on the adjoining property prior to July or September 2006 and the direct pressure of the cut portion of the slab after 2006;
b.the lateral pressure on the peers [piers or piles] supporting the slab of the factory on the plaintiffs’ property caused by the compression of the soil underneath the slab on the adjoining property caused by the storage of material adjacent to the property boundary”.
20The order stated that, “The actual damage, the quantification of the damage and the causation of the damage prior to and after 21 June 2007 must be clearly articulated” in the proposed amended pleading.
21The proposed further amended statement of claim particularised the plaintiffs’ loss and damage as including “rectification and consequential works to the footing and the piles of the western wall of the factory and the floor of the factory undertaken in 2013, $1,051,571”. Other losses included, costs incurred to date of about $274,000 and costs likely to be incurred of at least $1,417,000.
22The particulars of loss and damage then included the statement, “The plaintiffs’ losses were caused…both before and after the partial saw cut [in about July 2006] in the approximate proportions of not more than 50% before the partial saw cut and not less than 50% after the partial saw cut. Further particulars will be provided upon the provision of expert evidence prior to trial”.
23In compliance with the order made 23 June 2014, the plaintiffs exhibited to an affidavit a report by a consulting engineer, Dr Andrew Baigent dated 1 August 2014. Dr Baigent referred to an earlier report of his dated 30 September 2013, in which he concluded that:
·The construction and subsequent loading of the concrete slab in the neighbouring property was responsible for the subsidence damage to the western wall of the building;
·The construction and subsequent loading of this slab had resulted in the geotechnical and/or structural failure of the piles beneath the western wall of the building;
·The cutting of the concrete slab would not have prevented further differential subsidence of the western wall from occurring;
·Ongoing subsidence of the western wall of the building would have been inevitable because of the failure of the piles; and
·The construction of a new piled footing system was essential for rectifying the damage to the building and preventing further subsidence from occurring.
24Dr Baigent noted in his later report that, “it is my opinion that the combination of the original building loads, as well as the additional loads resulting from the construction and loading of the concrete slab in the neighbouring property have resulted in the geotechnical and/or structural failure of the piles”.
25Dr Baigent concluded that, “Based on the significant damage which I observed during my inspection of the building, it is my opinion that although the damage to the piles was initiated prior to 6 July 2006, the majority of the damage to the building structure occurred after the concrete slab was partially cut. Again, it is difficult to be precise, but it is my view that approximately 75% of the subsidence and resulting building damage has occurred after 6 July 2006”.
26Plaintiffs’ counsel, Mr Twigg, at the resumed hearing of the application on 29 August 2014, said in submissions, that it was on the basis of this conclusion that the proposed further amended statement of claim assessed the plaintiffs’ loss before and after July 2006 at about 50%. Mr Twigg said that this percentage was chosen conservatively because the date relevant to recoverable damages was 21 June 2007.
27Dr Baigent’s opinion as to the appropriateness of the figure 75% was also stated to be based upon his reading of Mr Cilia’s opinions in 2004 and 2005. Dr Baigent stated:
“Without the benefit of level measurements of the floor of the building, it is difficult to determine with any precision the degree of subsidence which had occurred to the building prior to 6 July 2006. However, it is apparent that subsidence was a concern when Dome Consulting were commissioned to inspect and report on the damage. It is my view that the damage must not have been too significant because it is my understanding that there was no advice from Dome Consulting that the footing system under the western wall of the building needed to be underpinned. If the damage had been of concern at that point in time, it is my view that Dome Consulting would have recommended significant rectification works to the footing system”.
28This statement appears, however, to have involved a misreading of Mr Cilia’s reports, as Mr Cilia clearly foreshadowed the need for geotechnical investigations to determine the damage to the pile and its founding material before any other rectification work was undertaken. Mr Cilia also considered that “screw jacks will be required to underpin the existing floorings [of the factory on no. 226]” and that this “will require core barrelling to penetrate the underlying fill”.
29Mr Cilia’s reports, and particularly the latter report, listed works which essentially required the dismantling and the rebuilding of the whole structure after the foundation and slab system was replaced. In these circumstances, there appears to be little basis for Dr Baigent’s conclusion, or any scope for further works other than those anticipated as necessary, or likely to be necessary after geotechnical evaluations, as at June 2004.
30In submissions on 29 August 2014, Mr Twigg was unable to suggest any other basis upon which the plaintiffs would meet the limitations of actions defences raised by the first to fifth defendants. In the circumstances, I consider that the plaintiffs would have no real prospect of succeeding with their claims against those defendants.
31Accordingly, I propose to make the following orders:
1. Judgment for the first and second defendants and the third to fifth defendants against the plaintiff that the plaintiff’s claim against each of those defendants be dismissed.
2. The plaintiffs must pay the first and second defendants’ and the third to fifth defendants’ costs of the proceeding, including any reserved costs and the costs of the third to fifth defendants’ summons filed 2 May 2004 and of the appearances on 23 June 2014, 29 August 2014 and today to be assessed by the Costs Court in default of agreement.
- - -
Certificate
I certify that these 7 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 5 September 2014.
Dated: 5 September 2014
Catherine Kusiak
Associate to His Honour Judge Anderson
0
0
0