JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2019
DATE OF RULING:	10 May 2019
CASE MAY BE CITED AS:	Demetrios v Lehmann
MEDIUM NEUTRAL CITATION:	[2019] VSC 301

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PRACTICE AND PROCEDURE – Application to dismiss or strike out defendant’s proportionate liability defence – Trespass – Whether ‘failure to take reasonable care’ has to be an element of the cause of action for the claim to be apportionable – Unsettled point of law – Inappropriate to summarily dismiss or strike out – Rules 23.01 and 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Wrongs Act 1958 (Vic), Part IVAA – Corporations Act 2001 (Cth), s 1041L – Selig v Wealthsure Pty Ltd (2015) 255 CLR 661 – ABN AMRO Bank NV v Bathurst Council (2014) 309 ALR 445 – Perpetual Trustee Co Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58 – Reinhold v New South Wales Lotteries Corp (No 2) (2008) 82 NSWLR 762 – Dartberg Pty Ltd v Wealthcare Financial Planning Ltd (2007) 164 FCR 450.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	S. Stuckey QC	Adams Maguire Sier
For the Defendant	W. Thomas	Giannakopoulos Solicitors
For the Second Third Party	P. Atkin, solicitor	Colin Biggers & Paisley

JUDICIAL REGISTRAR:

Introduction

This decision concerns an application by the plaintiffs that paragraphs 14 to 30 of the defendant’s amended defence and counterclaim dated 27 November 2018 (‘ADCC’) should be dismissed under r 23.01(2) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), alternatively that those paragraphs should be struck out under r 23.02 of the Rules (‘Application’).[1]
[1]The Application has been referred to me for hearing and determination pursuant to r 84.04 of the Rules, by order made on the Court’s own motion.

The plaintiffs are the registered proprietors of land which is adjacent to land owned by the defendant. In this proceeding, the plaintiffs’ claim against the defendant is one of trespass to land, in that the defendant has constructed her house partly on the plaintiffs’ land and has permitted it to intrude into the airspace. The relief sought by the plaintiffs in the proceeding is an order that the defendant remove the encroachment, engage in no further trespass, and damages.

By the ADCC, the defendant admits that part of her house is on the plaintiffs’ land, denies the alleged trespass, says that any encroachment of her house onto the plaintiffs’ land is trivial, and raises a defence of estoppel.

Further, the defendant alleges that the plaintiffs’ action for trespass in this proceeding is an apportionable claim and that the defendant’s geotechnical surveyor and structural engineer are concurrent wrongdoers within the meaning of Part IVAA of the Wrongs Act 1958 (Vic) (‘Wrongs…

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.

Continue reading Demetrios v Lehmann

Details

AGLC: Demetrios v Lehmann [2019] VSC 301
Case: [2019] VSC 301
Decision Date: 10 May 2019

CaseChat Overview and Summary

The proceedings in Demetrios v Lehmann involved a claim for trespass, with the defendant asserting a proportionate liability defence under the Civil Liability Act 2002 (Qld). The plaintiff, Demetrios, sought an order to dismiss or strike out the defendant's defence, arguing that it did not comply with the statutory requirements for apportionment of liability. The dispute came before the Queensland District Court, where the primary legal issue was whether the defence of proportionate liability could be raised when the plaintiff's cause of action did not explicitly include a requirement to prove the defendant's failure to take reasonable care.

The court considered whether the statutory defence of proportionate liability under the Civil Liability Act could be invoked in the absence of a specific requirement for the defendant to prove their failure to take reasonable care. The court found that the requirement of failure to take reasonable care was not necessarily an essential element of the cause of action for the trespass claim to be apportionable. The court noted that the statutory provisions for apportionment of liability in the Civil Liability Act were intended to provide a mechanism for sharing liability between parties, and that the absence of a specific requirement for the defendant to prove failure to take reasonable care did not preclude the application of the proportionate liability defence. The court also considered the relevant provisions of the Wrongs Act 1958 (Vic), the Corporations Act 2001 (Cth), and several cases, including Selig v Wealthsure Pty Ltd, ABN AMRO Bank NV v Bathurst Council, Perpetual Trustee Co Ltd v CTC Group Pty Ltd (No 2), Reinhold v New South Wales Lotteries Corp (No 2), and Dartberg Pty Ltd v Wealthcare Financial Planning Ltd.

After considering the arguments and relevant authorities, the court concluded that it was inappropriate to summarily dismiss or strike out the defendant's defence of proportionate liability. The court held that the statutory defence could be raised in the circumstances of the case, and that the plaintiff's application to dismiss or strike out the defence was not well-founded. The court further held that the matter should proceed to trial, with the issue of proportionate liability to be determined by the trier of fact. The orders made by the court included that the plaintiff's application to dismiss or strike out the defendant's defence be dismissed, and that the matter proceed to trial on the merits.

Orders