Downes v Maitland City Council - [2020] NSWSC 1555

Supreme Court

New South Wales

Medium Neutral Citation: Downes v Maitland City Council [2020] NSWSC 1555
Hearing dates: 3 November 2020
Decision date: 04 November 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the defendant’s notice of motion filed on 30 March 2020.
(2) Make no order as to costs as the plaintiffs have not incurred legal costs.

Catchwords:
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Claim by plaintiffs alleging negligence and nuisance — Where defendant relies on Local Government Act 1993 (NSW) s 733 as a complete defence — Whether triable issue as to whether defendant acted in good faith

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 79C, 149
Hunter Valley Flood Mitigation Act 1956 (NSW)
Local Government Act 1993 (NSW), s 733
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 42.1

Cases Cited:
Alamdo Holdings Pty Ltd v Bankstown City Council [2003] NSWSC 1074; (2003) 134 LGERA 114
Bankstown City Council v Alamdo Holdings Pty Ltd [2004] NSWCA 325; (2004) 135 LGERA 312
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660; [2005] HCA 46
Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31; (2006) 143 LGERA 319
Melaleuca Estate Pty Ltd v Port Stephens Shire Council [2004] NSWSC 415
Port Stephens Shire Council v Booth [2005] NSWCA 323; (2005) 148 LGERA 351

Category: Procedural and other rulings
Parties: Maureen Downes (First plaintiff)
Louis Downes (Second plaintiff)
Maitland City Council (Defendant)
Representation:
Counsel:
In person (Plaintiff)
J Guihot (Defendant)
Solicitors:
Moray & Agnew (Defendant)

File Number(s): 2019/62059

Judgment

Introduction

By statement of claim filed on 25 February 2019 Maureen and Louis Downes (the plaintiffs) claim damages against Maitland City Council (the defendant). They allege that the defendant, by approving the development of a two-storied office and car park next to their property in Bull Street, Maitland (the property), negligently exposed them to the risk of harm caused by disruption to drainage on their property. Further, they allege that the Council created a nuisance which adversely affected the use, enjoyment and value of the property. In its defence, the Council denied negligence and nuisance and alleged that it had a complete defence to the plaintiffs’ claim by reason of s 733 of the Local Government Act 1993 (NSW) (the Act).
By notice of motion filed on 30 March 2020, the defendant seeks an order under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1)(b), that the proceedings be dismissed on the basis that no reasonable cause of action was disclosed.
Mr Guihot, who appeared on behalf of the defendant, submitted that the defendant had adduced sufficient evidence to establish the defence on a prima facie basis and that, as the plaintiffs had adduced no evidence to the contrary, the proceedings ought be dismissed.

Relevant legislation

Section 733 of the Act relevantly provides:

“733 Exemption from liability—flood liable land, land subject to risk of bush fire and land in coastal zone

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: [2020] NSWSC 1555
Decision Date: 04 November 2020

CaseChat Overview and Summary

The matter involved a claim by the plaintiffs, Downes, against Maitland City Council for negligence and nuisance. The plaintiffs sought damages for harm caused by the defendant's actions. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the defendant's reliance on section 733 of the Local Government Act 1993 (NSW) as a complete defence against the claims could be successfully challenged on the basis that there was a triable issue as to whether the defendant acted in good faith. The plaintiffs argued that the council's actions were not in good faith, while the defendant maintained that the statutory provision provided a complete defence regardless of the question of good faith.

The court considered whether the statutory provision could be interpreted to exclude the question of good faith entirely from the scope of the defence. The court found that the provision did not exclude the question of good faith but rather allowed it to be considered as part of the overall determination of whether the defendant had acted negligently or caused a nuisance. The court held that the plaintiffs had established a triable issue on the question of good faith, which meant the matter could not be dismissed summarily. Consequently, the court determined that the defendant's reliance on the statutory provision did not constitute a complete defence and that the claims should proceed to a full hearing.

The court's decision highlighted the importance of considering the nuances of statutory provisions in the context of common law claims. By finding that the question of good faith was not excluded by the statutory defence, the court ensured that the plaintiffs' allegations could be fully explored at a trial. This ruling affirmed the plaintiffs' right to have their claims assessed on their merits, rather than being dismissed on the basis of a potentially incomplete statutory defence. The court's decision thus paved the way for the case to proceed to a full hearing, where the merits of the plaintiffs' claims would be determined.

Orders