Galea v Farrugia

[2013] NSWCA 164

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Galea v Farrugia [2013] NSWCA 164

Hearing dates:

10, 11 and 12 April 2013

Decision date:

07 June 2013

Before:

Bathurst CJ at [1]
Macfarlan JA at [2]
Ward JA at [104]

Decision:

(1) Appeal dismissed.

(2) Order the appellants to pay the respondents' costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

CONTRACT - agreement to supply land fill - whether appellants proved that fill supplied by respondents was contaminated with asbestos

EVIDENCE - tendency evidence - s 97 Evidence Act 1995 - whether respondents supplied contaminated land fill to appellants' property - relevance of evidence of deliveries of contaminated land fill by the respondents to two other properties

Legislation Cited:

Environment Planning Assessment Act 1979
Evidence Act 1995
Protection of the Environment Operations Act 1997

Cases Cited:

Asim v Penrose [2010] NSWCA 366
Lujans v Yarrabee Coal Co Pty Ltd [2008] HCA 51; 83 ALJR 34
Martin v Osborne [1936] HCA 23; 55 CLR 367
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308

Category:

Principal judgment

Parties:

Paul Galea (First Appellant)
Mary Galea (Second Appellant)
Lepipi Pty Ltd (Third Appellant)
David Farrugia (First Respondent)
Mary Farrugia (Second Respondent)
J & L Cauchi Pty Ltd (Third Respondent)
Joe Cauchi (Fourth Respondent)

Representation:

Counsel:
M J Neil QC (Appellants)
P Barham (First and Second Respondents)
J A Hogan-Doran (Third and Fourth Respondents)
Solicitors:
Mosca & Scott (Appellants)
NSW Compensation Lawyers (First and Second Respondents)
Balmain Lawyers (Third and Fourth Respondents)

File Number(s):

CA 2012/82184

 Decision under appeal 

Jurisdiction:

9111

Citation:

Galea v Farrugia [2012] NSWSC 77

Date of Decision:

2012-02-21 00:00:00

Before:

Hislop J

File Number(s):

2003/91314

Judgment

1. BATHURST CJ: I agree with Macfarlan JA.

1. MACFARLAN JA: In 1999 the appellants, Mr and Mrs Galea, acquired a 25 acre property at Greendale in western Sydney (referred to in the proceedings as "Property A"). In early 2002, Mr Galea arranged with the third respondent, Mr Cauchi (or through him, the fourth respondent, J and L Cauchi Pty Ltd) to supply land fill to build on the property a platform upon which Mr and Mrs Galea proposed to erect a machinery shed. Mr Galea arranged for the first respondent, Mr Farrugia, to level and compact the fill. Subsequent testing by the local council and the Environmental Planning Authority ("EPA") detected asbestos in the fill that had been brought on to the property. According to the respondents' case, this fill included fill dumped by unidentified third parties, as well as that supplied by Mr Cauchi.

1. In 2002, Lepipi Pty Ltd,…