Gove v Black

[2006] WASC 298

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   GOVE -v- BLACK & ORS [2006] WASC 298

CORAM:   TEMPLEMAN J

HEARD:   6-9 & 13-21 NOVEMBER 2006

DELIVERED          :   21 DECEMBER 2006

FILE NO/S:   CIV 2375 of 1997

BETWEEN:   SHARON LEE GOVE

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2370 of 1997

BETWEEN              :BARNABY PIERRE COLIN WOOD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2371 of 1997

BETWEEN              :PAUL CHARLES BLACKMAN

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2373 of 1997

BETWEEN              :KYLE THEODORE PETERS

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2374 of 1997

BETWEEN              :MICHAEL ANTONY KUBA

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2376 of 1997

BETWEEN              :SHELLEY MERRILYN GOLLAN

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2377 of 1997

BETWEEN              :MARYANNE FIORE

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2378 of 1997

BETWEEN              :MIA LEE FARINOSI

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2381 of 1997

BETWEEN              :TINA ELIZABETH D'CASTRO

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2382 of 1997

BETWEEN              :JULIETTE CHLOE VIRGINIE WOOD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2398 of 1997

BETWEEN              :DEAN DAVID HOLM GRAHAM

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2411 of 1997

BETWEEN              :IAN ROBERT MICHEL REGNARD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2412 of 1997

BETWEEN              :DANNIELLE DORISSE ELIZABETH BECKWITH

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2413 of 1997

BETWEEN              :NIGEL KENNETH GILES

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2414 of 1997

BETWEEN              :MARC DREXEL

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Fifth Defendant

FILE NO/S              :CIV 2415 of 1997

BETWEEN              :ROBYN LESLEY DREXEL

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Fifth Defendant

FILE NO/S              :CIV 1202 of 1998

BETWEEN              :NEIL ALEXANDER GRANT

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

Catchwords:

Torts - Occupiers liability, breach of statutory duty, and professional negligence - Trial on liability question - Conversion of factory to residences on a strata title - Balconies constructed during conversion - Timber specified in the design not used in the construction of the balcony - Design of balcony such that timber actually used is subject to rot - Central post of balcony not tied back to wall of building - Total collapse of balcony without warning - Collapse caused by rot and inadequate design - Whether tenant and owner of the residence breached duty to inspect, repair and maintain the balcony - Whether strata body corporate breached statutory duty to inspect, repair and maintain the balcony - Whether local authority's inspection adequate for issue of certificate under Strata Titles Act 1966 (WA) - Whether negligence by architects or engineers in designing balcony or in failing to detect use of non­specified timber

Legislation:

Local Government Act 1960 (WA), s 661
Occupiers Liability Act 1985 (WA), s 5, s 9
Strata Schemes Management Act 1996 (NSW), s 62
Strata Titles Act 1966 (WA), s 3, s 5, s 20(1), s 35(1)(c)
Strata Titles Act 1985 (WA), Sch 3

Result:

Judgment for plaintiffs against fourth and fifth defendants
Action against first, second, third and sixth defendants dismissed

Category:    B

Representation:

CIV 2375 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2370 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2371 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2373 of 1997

Counsel:

Plaintiff:     Mr M E Herron

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2374 of 1997

Counsel:

Plaintiff:     Mr M E Herron

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2376 of 1997

Counsel:

Plaintiff:     Mr M E Herron

First Defendant             :     M P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2377 of 1997

Counsel:

Plaintiff:     Mr M E Herron

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2378 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2381 of 1997

Counsel:

Plaintiff:     Mr M E Herron

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2382 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2398 of 1997

Counsel:

Plaintiff:     Mr M E Herron

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2411 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2412 of 1997

Counsel:

Plaintiff:     Mr M E Herron

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2413 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2414 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Mony de Kerloy

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Pynt & Partners

CIV 2415 of 1997

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Mony de Kerloy

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Pynt & Partners

CIV 1202 of 1998

Counsel:

Plaintiff:     Mr J G Staude

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr M L Greenland

Third Defendant           :     Mr M W Odes QC & Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P G Clifford & Mr P Mendelow

Sixth Defendant            :     Mr C P Stevenson

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

Case(s) referred to in judgment(s):

Baker v Gilbert [2003] NSWCA 113

Bartlett v Jones, unreported; FCt SCt of WA; Library No 990073; 22 February 1999

Cavalier v Pope [1906] AC 428

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Johnson v Johnson, unreported; CA SCt of NSW; 10 September 1991

Jones v Bartlett (2000) 205 CLR 166

Jordan vVan Schoubroeck [2005] WASCA 120

McPherson's Ltd v Eaton (2005) Aust Torts Reports 81‑825

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412

Ridis v Strata Plan 10308 (2005) 63 NSWLR 449

Rolls Royce Industrial Power (Pacific) Ltd v James Hardie and Co Pty Ltd (2001) 53 NSWLR 626

Sibley v Kais (1967) 118 CLR 424

Sutherland Shire Council v Heyman (1985) 157 CLR 424

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317

Voli v Inglewood Shire Council (1963) 110 CLR 74

Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139

Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Ahluwalia v Robinson [2003] NSWCA 175

Aslanidis v Atsidakos, unreported; CA SCt of NSW; 13 February 1989

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99

Australian Postal Corporation v Gallard [2000] NSWCA 316

Bailey v Redebi Pty Ltd (1999) Aust Torts Reports 81­523

Beach Petroleum NL v Johnson (1993) 115 ALR 411

Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582

Brodie v Singleton Shire Council (2001) 206 CLR 512

Bryan v Maloney (1995) 182 CLR 609

Cadogan v McGirk [1996] 4 All ER 643

City of Perth v DL, unreported; FCt SCt of WA; Library No 960167; 27 March 1996

Clayton v Woodman & Son (Builders) Ltd [1962] 1 WLR 585

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1

Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588

Gondoline Pty Ltd v Hansford [2002] WASCA 214

Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267

Hansford v Jago [1921] 1 Ch 322

Henville v Walker (2001) 206 CLR 459

Holloway v McFeeters (1956) 94 CLR 470

Jacklin v Proprietors of Strata Plan No 2795 [1975] 1 NSWLR 15

Leyes v Owners of Lakes Edge Villas Strata Plan 8436 (2004) WASTR 60

Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308

Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

Midland Bank Trust Co Ltd v Hett Stubbs & Kemp [1979] Ch 384

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254

Mohr v Cleaver [1986] WAR 67

O'Connor v SP Bray Ltd (1937) 56 CLR 464

Parker v SA Housing Trust (1985) Aust Torts Reports 80­738

Platt v Ciriello [1998] 2 Qd R 417

Proprietors of Centre Building Units Plan No 343 v Bourne [1984] 1 Qd R 613

Proprietors of Strata Plan 159 v Blake (1986) CCH Strata Title Cases 30-068

Proprietors of Strata Plan 22789 v Sharah, unreported; SCt of NSW; No 12372/94; 8 December 1995

Proprietors of Strata Plan No 30234 v Margiz Pty Ltd (1993) 32 NSWLR 294

Proprietors of Strata Plan No 464 v Oborn (1975) 1 BPR 9623

Proprietors of Strata Title 17226 v Drakulic (2002) 55 NSWLR 659

Pyrenees Shire Council v Day (1998) 192 CLR 330

R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58

Rogers v Whitaker (1992) 175 CLR 479

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431

Sakoua v Williams (2005) 64 NSWLR 588

Schiller v Council of the Shire of Mulgrave (1972) 129 CLR 116

Seden v Proprietors "Tyalla Court" [1978] Qd R 53

Short v Barrett, unreported; CA SCt of NSW; 5 October 1990

Stannus v Graham (1994) Aust Torts Reports 81-293

Toomey v Scolaro's Concrete Constructions Pty Ltd (No 2) [2000] VSC 279

Town of Mosman Park v Tait [2005] WASCA 124

Vairy v Wyong Shire Council (2005) 221 ALR 711

Watson v George [1953] SASR 219

Waugh v Kippen (1986) 64 ALR 195

TEMPLEMAN J: 

Introduction

1. The plaintiffs in these actions all claim to have been injured while attending a New Year's Eve party on 31 December 1996, when a first floor balcony on which they were standing, collapsed under their combined weight.

2. The party was being held by the first defendant, Richard Ash Black, at Unit 1, 51 Rule Street, North Fremantle.  Mr Black has occupied those premises since 1984 as a tenant of the second defendant, Ash Investments Pty Ltd ("Ash Investments") which is the trustee of the Black family trust.  Ash Investments purchased unit 1 in 1984.

3. Mr Black's unit was one of eight strata‑titled units created from the conversion of a late Victorian industrial building, known as the Old Soap Factory.  The body corporate is the third defendant: The Owners of the Old Soap Factory (Strata Title Plan 11175) ("the Strata Company").

4. The claims against the first, second and third defendants are based on alleged failures to inspect, maintain and repair the balcony.

5. The conversion of the Old Soap Factory was substantially completed in November 1982 by its then owner, Lavender Bay Pty Ltd ("Lavender Bay"), which carried out the works as an owner‑builder.  The works were supervised by a registered builder, Steven Bumstead.  Soon after the works were completed and the units sold, Lavender Bay went into liquidation and was subsequently deregistered.

6. Mr Bumstead is now deceased.

7. The strata plan for the Old Soap Factory was registered pursuant to the Strata Titles Act 1966 (WA). For that purpose, Lavender Bay obtained a certificate from the fourth defendant, the City of Fremantle, under s 5(6)(c) of the Act, stating that the building had been inspected and was consistent with the building plans and specifications.

8. The claims against the fourth defendant are based on an alleged failure to inspect the building for the purpose of s 5(6)(c).

9. The building plans and specifications were prepared by architects Ralph Arthur Drexel and Geoffrey London (now Professor London) who were practising in partnership together under the firm name Drexel London.  That firm has been joined as the fifth defendant by all but two of the plaintiffs.  They are Mr Drexel's son and daughter‑in‑law, Marc and Robyn Drexel.  The claims against Drexel London are based on an allegedly negligent design of the balcony and a failure to inspect it during the course of construction, or on completion.

10. On the recommendation of Drexel London, Lavender Bay utilised the services of consulting engineers, Halpern Glick Pty Ltd ("Halpern Glick") to provide advice as to certain structural aspects of the conversion of the Old Soap Factory.  Halpern Glick has been joined as the sixth defendant on the basis of an allegedly negligent design of certain structural elements of the balcony.

11. In addition to the claims made by the plaintiffs, there are inter‑party claims the subject of third party proceedings and notices of contribution, to which I shall refer below.

12. This trial has been concerned only with the issue of liability.  The trial was conducted on the basis that action 2375 of 1997, in which Sharon Lee Gove is the plaintiff, would be the lead action, although Ms Gove's counsel also represented nine other plaintiffs.  Counsel for a further seven plaintiffs withdrew at the start of the trial, on the basis that the parties had agreed to be bound by my decision in relation to liability.  I have therefore been concerned only with the issue of liability in the lead action.  I have not been referred to the pleadings in any of the other actions and therefore assume they are to the same effect as in the lead action.

13. It will be apparent that insofar as the various claims relate to the activities of the City of Fremantle, Drexel London and Halpern Glick, it has been necessary to investigate events of over 25 years ago.  Evidence was given by almost all of the persons concerned on behalf of the defendants, but very few had any recollection of important matters of detail.  That is unfortunate; but in the circumstances, it is not a matter for criticism.

14. No evidence was given by anyone involved in the conversion of the Old Soap Factory on behalf of Lavender Bay.  It has therefore been necessary for me to rely to a considerable extent on such documentation as has survived.  This includes Drexel London's plans and specifications, some working sketches and what seems to be much, if not all, relevant correspondence.  (I note however, Professor London's evidence that a lot of material was missing (TS 790).)  Halpern Glick's involvement is well documented, but the City of Fremantle now has no relevant records relating to its inspection.

15. As will be seen, the progress of the work of converting the Old Soap Factory was recorded in the minutes of weekly site meetings attended by one or other (and often both) of Mr Drexel and Mr London (as he then was).  These minutes appear to be complete.

16. Copies of the relevant documents were included in the trial bundle (exhibit 1) on the basis that they were true copies and that the documents were what they purported to be.  This was subject to the right of any counsel to object to any document on which reliance might otherwise be placed.  But in the event, there were no such objections.

17. In those circumstances, I take the view that each of the documents in the trial bundle may be regarded as reflecting the genuine opinion or state of knowledge of its author at the material time.

18. In the unusual circumstances of this case, I think it necessary to point out, and emphasise, that my findings of fact are made on the balance of probabilities, and include facts found by drawing inferences.  However, I have had regard to the proposition stated by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170 that:

    "… the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove."

19. Against this background, I shall first describe the structure of the balcony and set out my findings as to why and how it collapsed.  I shall then deal with the claims arising from the design and construction of the balcony, and the inspection of the Old Soap Factory by the City of Fremantle.  I shall then deal with the claims arising out of ownership and occupation.

The structure of the balcony

1. The Old Soap Factory comprises a number of buildings.  One of those buildings, originally of three storeys, was converted into four units, each having five floors.  Units 1 and 4, which are respectively on the south and north ends of this building, both had balconies constructed at the first and second floor levels of their end walls.  The structure of the balconies was identical.

2. The balconies to unit 1 were approximately 8.1 metres wide and 3 metres deep.  That is to say, they extended some 3 metres southward from the southern wall of the building.

3. The floor of each balcony was constructed of closely spaced wooden battens nailed to 2.9 metre long timber joists, being approximately 190 millimetres x 48 millimetres in cross‑section.  There were 16 joists, spaced at 530 millimetre intervals.  The northern ends of the joists were supported by a timber plate of similar cross‑section, but about 8 metres long, which was bolted to the southern wall of unit 1 by "trubolts".  This is the proprietary name for a bolt which is inserted into a hole in the wall and expands into the hole when tightened.

4. The southern ends of the joists were supported by two lengths of timber (referred to as "plates") of similar cross‑sections to the joists.  These plates were each about 4 metres long, separated by a steel column and backed by a steel member (referred to as a "beam") which formed the southern edge of the balcony.  The timber plates were bolted to the steel beam, by stud bolts welded to it at intervals along its length.

5. The design called for the joists to be half‑housed into their supporting timber plates.  This would have required slots to be cut into the plates opposite the ends of each joist.  The width of the slots would be equal to the thickness of the joists.  The slots would extend half‑way into the plates and half‑way down from the top of the plates.  Thus, each slot would be approximately 48 millimetres wide, 24 millimetres deep and 95 millimetres long.

6. The ends of each joist would be cut so that the upper half formed a tongue having dimensions equal to its corresponding slot.  If the required cuts had been made accurately, the ends of the joists would have fitted exactly into the plates (ie, they would have been half‑housed) such that the weight of the balcony would have been supported on the 32 points of contact, each having an area of 48 millimetres x 24 millimetres.

7. In fact, the depth of housing was far less than as specified in the design.  Having regard to the evidence of the expert witnesses who examined the balcony timbers following its collapse, I find that the depth of housing varied between about 9 millimetres and 14 millimetres.

8. The joists were fixed to the plates by skew nails.  That is, nails driven through the joists and into the plates at an angle of about 45 degrees.

9. The design specified that the joists and supporting plates should be cut from "select grade structural jarrah".  In fact, a species of pine was used.  It has been identified as Douglas fir, or oregon.  It will generally be convenient to use the latter name.

10. I have referred above to the steel column located in the centre of the southern side of the balcony.  A similar column was located at each end of that side.  The three columns were bolted to concrete footings and extended vertically so as to support the balconies at the first and second floor levels, and a pergola above the upper balcony.

11. The pergola was constructed of rafters of the same size and configuration as the joists, but was angled downwards, slightly, from the horizontal.

12. The sides of the balconies were fabricated from steel having the same cross‑sectional dimensions as the southern beam.  The side beams, to which the end joists were attached, tied the end columns back to the south wall of the building.  The beams were let into the wall and were bolted through it.

13. The end columns were not only tied back to the wall by the side beams, but also by means of 16 millimetre diameter steel rods and turnbuckle assemblies slung under each set of joists.  Each set of rods was hooked to the columns at one end, and at the other end, to a steel plate bolted through the southern wall of the building, immediately below the wall plate.

14. The balconies were surrounded on their open sides by steel balustrades, capped with a timber handrail.  To the side of each set of balconies there was a steel spiral staircase which served as a fire escape (exhibit 1/1608 ‑ 9).

The collapse of the balcony

1. Evidence about the causes and mechanism of the balcony collapse was given by four engineers and two scientists.  All the experts provided reports.  All but one gave additional evidence and were cross‑examined.

2. It will be convenient to refer first to the evidence of Dr Graeme Richard Siemon, a Member of the Institute of Foresters of Australia and an Associate of the Institute of Wood Science.  Dr Siemon is an expert in timber technology, a subject in which he lectures at TAFE and Edith Cowan University.  He is consulted regularly in relation to timber utilisation and wood identification for forensic purposes (exhibit 14).

3. Dr Siemon's evidence is contained in three letters written by him in 1997 to representatives of the Strata Company, in his capacity as Scientific Advisor, State Forest Resources Business Unit of the Department of Conservation and Land Management.  The letters (exhibits 15, 16 and 17) were admitted by consent.  Dr Siemon was not required to attend for cross‑examination.  I accept his evidence.

4. It was Dr Siemon's evidence that he inspected the collapsed balcony on 19 January 1997 and, by microscopic examination, identified the timber used for the plates and joists as Douglas fir (Pseudotsuga menziesii), commonly known as oregon.

5. Dr Siemon was asked about shrinkage.  It was his opinion that, in general, longitudinal shrinkage in timber is negligible, compared with tangential and radial shrinkage.

6. This opinion is based on an average of 0.31 per cent, reported by Rijsdijk and Laming, in their publication "Physical and related properties of 145 timbers", Kluwer Academic Publishers, 1994.  It was derived from shrinkage from the fibre saturation point of about 25 per cent moisture content, and the standard equilibrium condition of 12 per cent moisture.

7. Dr Siemon said that timber in service in exposed conditions would generally be subjected to wetting and drying cycles.  In his opinion "any longitudinal variation would be less than 0.3 per cent" (exhibit 15).

8. Accepting this evidence as I do, I calculate that a joist of approximately 3 metres in length might shrink less than 9 millimetres in exposed service.  I infer that in the wetting and drying cycles, that is, winter rain and summer sun, the balcony joists might have expanded and contracted to this extent.

9. The significance of movement of this kind in joists which are less than half‑housed into their supporting plates, has not been the subject of any expert evidence, I therefore infer that it is not a relevant consideration in this case.  I assume that if shrinkage of the joists had been the cause of their dislocation from the supporting plates, the balcony would have collapsed much sooner than it did.

10. Dr Siemon gave evidence also as to the durability of Douglas fir.  He said it was rated as Durability Class 4, "which means that the outer heartwood would last less than eight years in‑ground service".  However, the publication to which Dr Siemon referred, quoted:

    "a heartwood service life for Douglas fir at Hazard Level 3 (ie above ground exposed) of five years.  This is the situation with the balcony …

    It is also worth noting that sapwood of any species is not durable."

11. The last comment is significant, having regard to the evidence of Dr Davison, to which I now turn.

12. Dr Elaine Mary Davison, who is Adjunct Associate Professor at Curtin University of Technology, gave evidence for the Strata Company.  Dr Davison is an expert in plant pathology (especially of woody plants), a discipline in which she has had a distinguished career.  She has lectured, examined and published extensively (exhibit 24).  I accept all of Dr Davison's evidence.

13. Dr Davison inspected the balcony timbers on 19 January and 13 February 1997, after they had been reconstructed to a certain extent.

14. Dr Davison observed that the southern support plate had failed, not the joists.  Her examination revealed a considerable amount of brown cubical rot in the southern support plate, particularly the eastern section.  The plate was incomplete when Dr Davison first inspected it.  However, a neighbour gave her two pieces of wood which had apparently broken away from the lower part of the eastern end (exhibit 25, page 4).

15. As may be seen from Dr Davison's photographs (exhibit 25, pages 20 ‑ 25), there was extensive cubical rot in the sample section from the eastern end of the eastern part of the southern support plate.  It affected the whole of the sample: all the wood apart from the outer 1 centimetre was rotten and contained some white mycelium.  These are the microscopic threads by which fungus spreads in moist timber (exhibit 25, page 2).

16. Dr Davison took three samples at the western end of the eastern section of the southern support plate, that is, adjacent to the central column (samples 3, 4 and 5).

17. All three samples contained extensive brown cubical rot which extended well into the timber from the face which had been in contact with the outer steel beam.  Dr Davison observed that the rot appeared to have started where water had seeped between the wooden plate and the steel beam (exhibit 24, page 1).  Fungal mycelium was observed in all the samples (exhibit 24, pages 4 ‑ 6, 18 ‑ 25).

18. The western section of the southern support plate was less affected by rot (exhibit 24, pages 7 ‑ 8).

1. Dr Davison sampled also the western side plate: that is, the outer joist which had been bolted to the steel side beam.  There was extensive brown cubical rot, along the whole length of a 180.5 centimetre sample, and underneath the locations where the decking had been attached (exhibit 24, pages 8 ‑ 10, 26 ‑ 35).

2. Dr Davison's visual inspection and probing of the northern wall plate and the eastern side plate did not reveal any rot: nor was any rot found in samples taken from the eastern plate (exhibit 24, page 11).

3. Dr Davison attributed the greater decay in the eastern side of the southern support plate to the fact that the timber contained pith, whereas there was none in the western section.  The eastern section would therefore have been "inherently less durable" (exhibit 24, page 12).  This, it will be recalled, was Dr Siemon's opinion also (I assume that pith is a component of sapwood).

4. Dr Davison noted in her report that the mechanical strength of timber is lost as it decays.  She referred to the work of Winandy and Morrill (1993):

   "who have shown that in Douglas fir, weight losses of 1 to 18 per cent are linearly related to bending strength losses of 5 to 70 per cent" (exhibit 24, page 2).

5. Although there is no evidence of the extent of weight loss in the present case, Dr Davison's photographs show that the degree to which the rot affected the eastern section of the southern support plate must have reduced its strength very considerably.  Dr Siemon's opinion was that, "in general terms the reduction in strength would be proportional to the loss of cross‑section" (exhibit 17).

6. Dr Davison was asked in cross‑examination whether rotting would have occurred if the timbers had been jarrah.  She said that jarrah would have decayed much more slowly, because it is a more durable timber than Douglas fir or oregon (TS 339).

7. I turn now to the evidence of three professional engineers who are broadly in agreement as to the mechanism by which the balcony failed.

8. The experts are:

   •Donald Phillips, a principal of Connell Wagner Pty Ltd, who has 30 years' experience and whose specialisations include timber structures (exhibit 27): called by the Strata Company.

   •Dr Dennis Patrick (Ernie) Evans, an original director and co‑founder of Bruechle Gilchrist & Evans, who has 50 years' experience, particularly in relation to the construction of bridges, but also of more general structural engineering (exhibit 33): called by the Strata Company.

   •John Sydney Ryan, the principal of John Ryan and Associates, who has over 30 years' experience and who specialises in the design and investigation of building structures (exhibit 5): called by the plaintiffs.

9. The opinion of Mr Phillips and Dr Evans was that the collapse was initiated by the breaking away of the lower part of the southern support plate at its eastern end.  (It will be recalled that Dr Davison was given the relevant pieces by a neighbour: they had been missing initially.)

10. Both Mr Phillips and Dr Evans were of the opinion also that the breakage resulted from the weakening of the timber by progressive rot: and that the rot was caused by water which became trapped between the timber of the southern support plate and the steel beam to which it was bolted.

11. The most comprehensive explanation was given by Mr Phillips.  It was illustrated by drawing S1 which he included in his report (exhibit 28).  In Mr Phillips' opinion, the failure of the southern support plate allowed the four joists at the eastern end of the balcony to fall downwards.  As they did so, they created a wedging effect (because the diagonal length of the joist is greater than its nominal length).  The wedging effect caused the composite southern support plate and its steel beam to move outward; that is, away from the building.

12. The failure of the first four joists resulted in the transfer of the load they had been carrying to the fifth and successive adjacent joists.  The transfer was effected by the decking, which connected the joists to one another.

13. It will be recalled that the joists, which were supposed to have been half‑housed into their support plates were in fact housed only to an average depth of 13 or 14 millimetres, so that their load bearing faces were (say) 14 x 48 millimetres, instead of 24 x 48 millimetres.

14. The additional loads imposed on these bearing faces as a result of the failure of the first four joists, had a crushing effect on the joints.  The crushing caused the step at the southern end of each joist to deform, so that instead of being horizontal, it bent or curved upwards.  (There was corresponding deformation on the lower half of the joists; that is, at the bottom of the slots in the support plate.)  This allowed the ends of the joists to slide down and away from the support plate, thereby adding to the wedging action and applying a further significant horizontal force to the southern composite support plates and steel beam.

15. The central column was tied back to the north wall of the building only by the skew nailed joists.  The horizontal resistance provided by the skew nails was minimal.  And (as Mr Ryan explained) because the eastern and western support plates were separated by the central column, the plate and beam assembly acted as a hinge.  This destroyed any stiffness contributed to the assembly by the timber plates (TS 226).  As a result, the horizontal force required to deflect the column outwards was small, compared with the wedging force created by the falling joists.

16. The rapid transfer of load from the unrestrained joists, successively from east to west along the balcony, caused the outward deflection of the southern support plates, the beam and the central column, and allowed the remaining joists to slip from their respective housings (because the skew nails could not hold them), and to fall.

17. The tie rods beneath the balcony may have provided some support initially, as the joists fell on to them.  However, they were not designed for that service, and the eastern tie rod failed.  Further, the force applied to the tie rods by the weight of the balcony and the persons standing on it, would have tended to draw the side columns inwards, and hence, to close the hinge formed by the southern support plate, the central column and the southern steel beam.  This would have accentuated the outward movement at the centre of the hinge (ie, the central column) and hastened the collapse.

18. The design of the balcony was such that, once the southern support plate failed, there was nothing to prevent this collapse mechanism from operating as it did: and as rapidly as it did.  The graphic technical expression used by the experts to describe this effect, is that there was an "unzipping" of the balcony.

19. I accept the evidence of Mr Phillips that all structures, whether timber, concrete or steel, should be designed with some degree of redundancy, so as to prevent progressive collapse (exhibit 28, page 7; TS 383 ‑ 384).  That is, elements should be included in the structure which will permit loads to be distributed to other elements in the event of a failure.  Thus the purpose of the redundant member is to prevent what would otherwise be a catastrophic failure of the structure.

20. In the present case, a secure means of tying the central column back to the southern wall of the building would have provided the necessary element of redundancy.

21. The description of the collapse suggested by the expert witnesses is consistent with the evidence of persons who were standing on the balcony at the time, when it fell.  Sharon Lee Blackman (nee Gove), the plaintiff in action 2375 of 1997, said she heard "a deafening crack", but did not recall falling (TS 101).

22. Marc Drexel, the plaintiff in action 2414 of 1997, heard "a very loud crack and then almost immediately, the floor coming towards me" (TS 106).

23. Mr Drexel wondered whether his evidence was "compounded by my review of further statements".  However, his recollection was that the balcony "seemed to give way to the south‑east corner … but more towards the middle rather than the extreme eastern end": and that it happened "in split seconds" (TS 106 ‑ 107).

24. Mr Ryan's opinion (exhibit 6) was similar to those of Mr Phillips and Dr Evans.  However, Mr Ryan thought that the wedging action caused by the deformation of the joints between the joists and the southern support plate had occurred progressively before the collapse.  In Mr Ryan's opinion, this was caused by the weakening of the joints due to rot, particularly at joists 2, 3 and 4, at the eastern end of the balcony.

25. Mr Phillips agreed that the rot was caused by water trapped between the southern support plate and the steel beam.

26. Mr Ryan identified a number of defects in the joists, in the form of knots and splits.  He depicted the more significant defects in sketches forming part of his report (exhibit 6).

27. All the other joists had significant knots or splits.  Some of the splits were new.  That is, the timber split when the joists fell.  Others were present in the timber for some time before the collapse.  This is evident from the weathering of the timber faces inside the splits.  They were "a characteristic grey colour".  Of the 14 joists, ie, not including those attached to the eastern and western steel beams, only five were said to be "average" or "ok".

28. A different explanation for the collapse was advanced (at least initially) by an engineer called by the plaintiffs, William Jack Apgar.  Mr Apgar is a professional engineer with over 30 years' experience, and is the immediate past chairman of the Forensic Engineering Society.  Although Mr Apgar's primary focus is on industrial and motor vehicle accidents, he has the qualifications and experience necessary to enable him to give admissible evidence in this case (exhibit 2, TS 148).

29. Mr Apgar's initial view was that the collapse of the balcony was caused only by the deformation in the joints between the joists and the supporting plates over a long period of time.  This resulted in the wedging effect referred to above, and slowly pulled the skew nails out of the southern support plate, allowing the joists to become free.  In Mr Apgar's opinion, the collapse was precipitated by the weight of the people on the balcony on 31 December 1996, which caused joists 5 ‑ 12 to drop downwards: that is, the joists either side of the central column.

30. In Mr Apgar's opinion as stated originally (exhibit 4) the "clear indication" was that the southern support plate was intact and was supporting joists 1 and 3 before the final failure, although the rot at the eastern end of the southern support plate "possibly left the south end of joist 2 free of the plate" (exhibit 4, par 5.2).  However, Mr Apgar's analysis of the marks on the northern wall of the building led him to the conclusion that the western end of the balcony failed first, albeit with only a small delay before the progressive failure reached the eastern end.

31. Initially, Mr Apgar dismissed the suggestion that rot at the eastern end of the southern support plate caused the failure: he said it was "clearly not so" (exhibit 3, page 13).  However, he later received Mr Ryan's report and he and Mr Ryan then discussed the matter.

32. As a result of those discussions, Mr Apgar revised his opinion.  He said he and Mr Ryan:

    "are now both of the opinion that it was a combination of wood rot and wedging which caused the south plate to move outwards and release other joists.  This then led to the catastrophic failure" (exhibit 4).

33. The four experts are unanimous in their opinion that if the central column had been tied back securely to the southern wall of the building, the collapse would have either have been averted: or at least, would have happened much more slowly, so as to give the people on the balcony time to escape into the building.

34. There were about 35 people on the balcony when it collapsed.  I accept Mr Phillips' evidence that if the balcony had been designed and constructed in accordance with the relevant Australian Standard in force in 1982, it should have taken the weight of about 170 people with a substantial margin of safety.  That is to say, the balcony would have carried about double that number before failure (TS 353 ‑ 354).

Findings

1. I find, on the balance of probabilities, that the balcony collapsed because the oregon timber from which the southern supporting plate had been cut, was so weakened by rot that it failed suddenly, somewhere in the region of the south‑eastern corner.  The cause of the rot was the moisture trapped between the southern support plate and the outer steel beam.

2. The failure of the southern support plate caused the joists in that region to fall, thereby creating a wedging effect on the composite southern supporting plate and steel beam.  The wedging effect caused the outward deflection of the structure, thus reducing the bearing areas of the joists on their support plates.

3. A combination of the reduced bearing areas and increased load (transferred successively by the decking, to joists adjacent to those which had already fallen) increased the wedging effect, and caused further deflection of the supporting structure.

4. Because the central column was not tied back to the southern wall of the building there was nothing to prevent or restrict the operation of the mechanism described above.  The collapse was therefore rapid and complete.

5. If the balcony had been constructed of jarrah, rather than oregon, it would not have rotted to the same extent: and the balcony would not have collapsed as or when it did.

6. If the joints connecting the joists to their supporting plates had been fully half‑housed, the structure would have been stronger, but the failure would still have occurred.  That is because of the magnitude of the horizontal force created by the wedging effect of falling joists.  I accept the expert evidence that half‑housing was considered to be an acceptable means of joining the joists to the supporting plates.

7. If the central column had been tied back securely to the southern wall of the building, the collapse would still have occurred to some extent.  However, it would not have been catastrophic, so that people on the balcony at the time of the collapse would have been able to escape to the safety of the building.

8. The defects in the timber did not contribute to the collapse.

9. The primary causes of the collapse were therefore:

   (1)the use of oregon for the joists and supporting plates; and

   (2)the inadequate design of the southern supporting structure.

10. Having regard to those findings, I turn to consider the role of Drexel London and Halpern Glick in the design of the balcony.

Drexel London

1. As I have noted above, Drexel London was the name of the partnership between Ralph Arthur Drexel and Geoffrey London.

2. Mr Drexel studied architecture in the late 1950's at the Perth Technical College, then the only institution in Western Australia at which a course in architecture was available.  Having graduated from the Perth Technical College in about 1960, Mr Drexel taught design there for a year.  At the end of 1961, he travelled to the United Kingdom where he worked as an architect.  He was involved in the design of a new town in Aden, and in overseeing its construction (TS 689).

3. Mr Drexel returned to Perth in May 1965.  From then until the early 1970's, he was employed as an architect by Summerhayes and Associates.  In that role, he was responsible for the winning design for the Perth City Arcade.  He worked also on smaller projects, including domestic architecture, and was involved in an overseeing role (TS 689 ‑ 690).

4. In the early to mid 1970's, Mr Drexel was appointed as a part‑time lecturer in design at the University of Western Australia.  He became a full‑time lecturer subsequently: and was then promoted to senior lecturer.  It was Mr Drexel's recollection that he was probably the only practising architect who had joined the university.  In those days, his entitlement to engage in private practice was "approximately a fifth of overall time" (TS 688).

5. Mr London graduated as an architect from the University of Western Australia in 1971.  From 1970 to the end of 1972, he worked in government.  He then spent a period in private practice before travelling during 1973.  On his return to Perth in 1974, Mr London again worked for the government for a year.  Following that, he worked on a number of architectural projects independently.

6. Mr London studied for the degree of Bachelor of Fine Arts at Curtin University.  He graduated in 1980.  In 1981, he completed a graduate diploma in fine arts.  In 1986 and 1987, he completed post‑graduate studies in architecture at the Architectural Association.

7. Mr London lectured full‑time at the University of Western Australia from 1984.  At the end of 1992, he was appointed a professor in the School of Architecture at the University of Western Australia, a position he has held since then.

8. Professor London's area of specialisation is the history and theory of architecture.  He is currently the government architect for Western Australia, having held that position since the beginning of 2004 (TS 797 and exhibit 42).

9. In 1980, Mr Drexel was a much more senior and experienced architect than Mr London.  While both were at the University of Western Australia, they formed the Drexel London partnership.  I accept Professor London's evidence that he and Mr Drexel worked closely together in the partnership and kept each other informed.

10. Drexel London undertook two commissions.  The first was carried out for a cooperative of 13 people, each of whom wanted new units in one complex.  The units were tailored individually for the members of the cooperative.  The project was constructed under a building contract and proceeded smoothly to a successful conclusion (exhibit 42, par 7).

11. The second commission was the conversion of the Old Soap Factory.  Mr Drexel was invited to become involved in this project for Lavender Bay by one of its directors, Barry Millett.

12. Mr Millett, Peter Hollings and a third man (who was, it seems, a passive investor) had formed Lavender Bay for the purpose of developing a large industrial site which included the Old Soap Factory.

The role of Drexel London in designing the balcony

1. The involvement of Drexel London resulted from discussions with Mr Hollings and Mr Millett.  On 23 October 1980, Mr Drexel wrote to Mr Hollings confirming that it was the wish of Lavender Bay to refurbish the Old Soap Factory and its immediate environs and convert it to eight units on strata title.  (This litigation is concerned with one of the four units in what was originally a three storey building forming part of the Old Soap Factory.)

2. Mr Drexel referred to the fact that his firm had contacted the Fremantle City Council about submissions for planning approval.  The firm had been advised that the Council would like to discuss planning proposals before any submission was made.  Mr Drexel therefore recommended that the firm work to the December meeting of the Council.

3. On 27 November 1980, Drexel London submitted an account to Lavender Bay for the preparation of measured drawings and preliminary design proposals.  On the same day, these drawings and proposals were sent to the city planner at the City of Fremantle (exhibit 1/4).  I accept Mr Drexel's evidence that these were probably site plans and elevations.

4. It is clear that the balconies featured in the preliminary designs.  This emerges from a letter dated 1 December 1980 written by Mr London to the city planner at the City of Fremantle.  He said:

   "Decks of timber and steel will be constructed to the two side elevations.  The decks will serve two functions; as outdoor living areas and as access to individual fire escape stairs."  (exhibit 1/7)

5. On 9 and 11 December 1980, Mr London met Jeremy Dawkins, a Development Officer of the City of Fremantle.  As appears from a sketch made by Mr London after the second meeting, the design concept for the balconies was then developed further.  This was because Mr Dawkins was concerned to ensure that the visual impact of the balconies was in keeping with the style of the building to which they would be attached.  Given that the proposed structure involved timber and steel, the sketch can be interpreted as showing the balconies supported by steel columns with the joist ends supported by steel channels (exhibit 1/82).

1. One of the features of the sketch is that the rafters above the upper balcony, which were originally horizontal, have been pitched slightly downwards.  A note on the drawing records that this is "to stop edge kicking up visually and to increase sense of enclosure."

2. The Drexel London working papers which are in evidence as part of the trial bundle, contain perspective drawings of the Old Soap Factory showing the proposed balconies (exhibit 1/1171 ‑ 3).  The drawings were prepared by a draftsman (TS 771).  Pages 1171 and 1172 fit together.  They show the rafters above the upper balcony to be horizontal.  They show also a structure involving a concept which is very similar to the final design.  It includes decks supported on joists and plates: and it shows the whole structure as being supported on three vertical columns.

3. The drawings are not dated.  However, because they show the upper rafters as being horizontal, I infer, on the balance of probabilities, that the drawings were prepared before Mr London met Mr Dawkins on 11 December 1980: and probably, before 9 December.  Indeed it was Mr Drexel's evidence that he and Mr London "came up with a design for the balconies long before we came to Halpern Glick" (TS 609).  And as will be seen, Halpern Glick was instructed on 4 December 1980.

4. Although the drawings show no constructional detail, the design concept must have been well established by then.

5. On 11 December 1980, Mr London wrote to Mr Dawkins further to their discussions on 9 and 11 December.  He enclosed "preliminary recommendations" for the northern and southern balconies of the Old Soap Factory.  These incorporated all items discussed.  They included:

   "1.A slight pitch to the top pergola rafters, with the perimeter beams remaining horizontal.

   2.The top perimeter beams and the edge beams to the balcony floors are to be made up of composite steel sections, designed in such a way as to complement the two projecting horizontal bands of rendered brickwork on the main façade of the building.

   3.These beams wrap around the face of the columns rather than being recessed behind the columns.

   4.The balustrades to terminate at the floor levels, with every fourth baluster projecting through and to be picked up by a minor horizontal element."

   Mr London concluded his letter by saying that although the changes would be subject to final confirmation by Lavender Bay, Drexel London would be recommending that the changes be accepted (exhibit 1/83 ‑ 4).

6. It appears that the design work proceeded.  Drawings were produced by Drexel London in March 1981.  These included a drawing numbered 15 which showed a side elevation of the balconies drawn to a scale of 1:50.

7. Drawing 15 contained a number of structural details set out in notes.  These included the following:

   •all pergola rafters, plates and balcony joists were to be 'select grade structural jarrah'

   •each balcony floor was to be constructed on 16 joists made from timber dressed from 175 x 50 millimetres, evenly spaced and half housed into 175 x 50 millimetre plates at each end

   •the wall plates were to be bolted to the brickwork with 'TS‑12‑7SS steel trubolts' placed centrally between the joists, alternatively 50 millimetres from the top and bottom

   •the posts supporting the outer sides of the balconies were to be constructed of square hollow section steel posts having dimensions 127 x 127 x 49 millimetres

   •mild steel edge assemblies were to be fabricated at the deck and pergola levels, to consist of 200 x 12 millimetre plate with 127 x 76 x 5 millimetre mild steel section continuously fillet welded to the plate and with a 52 millimetre outside diameter tube fixed into the angle edge.  These assemblies were to be 45 degree mitred at the corners

   •at the underside of the rafters at the upper level and below the joists at the lower levels, 16 millimetre diameter mild steel rod and turnbuckle assemblies were to be hooked to mild steel eyes 'welded to post and central wall plate'.  The dimensions of the wall plate were 300 x 200 x 10 millimetres.  The plate was to be fixed to the wall with 4 TS‑12‑7SS stainless steel trubolts.  The timber wall plate was to be 'neatly cut' over the steel wall plate

   •the columns were to be bolted to 750 x 750 x 300 millimetre footings, the tops of which were to be set four courses below the new ground level, by 250 x 250 x 16 millimetre base plates.  The footings were to be reinforced with F62 mesh, with 75 millimetre bottom cover: and the base plate was to be placed on 25 millimetres of grout.

   There was a further note on drawing 15, positioned above the depiction of the balconies.  It was as follows:

   "Balconies generally as noted below and to structural engineer and architects details and specifications."

8. The details set out in the notes summarised above are engineering, rather than architectural matters.  That is to say, the structural integrity of the balconies depended on the correct sizing and appropriate construction of the various elements of the balcony.

9. Although drawing 15 was produced by Drexel London, they (and the plaintiffs) contend that the structural engineering aspects of the design were provided by Halpern Glick.  I therefore turn to a consideration of Halpern Glick's role.

The role of Halpern Glick

1. Halpern Glick became involved in the conversion of the Old Soap Factory in December 1980.  This was on the recommendation of Mr Drexel who had worked previously with Mr Glick (TS 554).

2. Graham Lionel Glick was then a very experienced civil and structural engineer.  He had graduated from the University of Western Australia in 1952, with a first class honours degree in civil engineering.

3. In 1980, Mr Glick was a director of Halpern Glick, the company formed in the 1970's on the incorporation of the eponymous firm.  He had been a partner in the firm since 1960.

4. It was the practice at Halpern Glick to complete an Initial Project Data form when a new job was received.

5. One such form was completed in this matter (exhibit 1/9).  The initial job description is said to be:

   "Inspect old factory buildings to be converted into residential units, for foundation sufficiency and present structural standard of building.  Design new walls and floors - openings to be added."

6. The form showed that Mr Glick was the director involved.  No project manager was identified, and a question mark appeared in the space reserved for the name of the design engineer.  The form showed that instructions had been received by Mr Glick on 4 December 1980.

7. Mr Glick was unable to identify the writing on the form: nor could he recall instructing the then head of the structural engineering department about the job.

8. On 5 December 1980, Mr Drexel and Mr Glick met at the Old Soap Factory to discuss its proposed conversion to residential use.  Mr Glick's evidence, which I accept, is that Mr Drexel said to him words to the effect that "he wanted me to do the structural work to revamp the building.  The main thing was to check the soundness of the original structure and to make sure it was possible to put in lift shafts" (exhibit 43, par 9).

9. On 7 December, Mr Drexel wrote to Mr Glick referring to their recent discussions and the site meeting and confirming "on behalf of our clients Lavender Bay Pty Ltd" the appointment of Mr Glick's firm "as structural consultants" for the project.  Mr Drexel said that Halpern Glick's fees were to be directed to and paid by Lavender Bay.  He went on to say:

   "The first stage of your consultancy will include an evaluation of the existing structure to meet the requirements of the sketch proposals.  We understand that the work will include a check of the existing footings, investigations of the bearing capacity of existing ground floor slabs for new party walls, a check for the provision of pits for the passenger lifts to units 1 to 4 which must be at least 900 deep below existing entry levels, the condition of the existing timbers including roof trusses and the preliminary design for enlarging the windows on the river wall of the three storey section."  (exhibits 1/11 and 11A)

10. Exhibit 11 referred to above is Drexel London's office copy of the letter to Mr Glick.  Exhibit 11A is a copy of the letter he received.  On it, Mr Glick wrote "received by hand 11‑12‑80".  The letter was addressed to Mr Glick at his firm's office at 1 Ord Street, West Perth.  However, Mr Glick could not recall where he received it.  This is a matter which might be significant and to which I shall refer below.

11. Two points may be made about the documentary evidence:

    1.neither the Initial Project Data form nor Mr Drexel's letter made mention of work relating to the proposed balconies; and

    2.Mr Drexel's letter appointed Halpern Glick as consultants, rather than as the structural engineers for the project.  That is to say, the inference is that Halpern Glick would be called upon as and when their services were required.

12. It is Mr Drexel's evidence that he obtained the engineering information contained on drawing 15 from Halpern Glick.  He said that to the best of his recollection, he engaged in discussions with "an engineer" at Halpern Glick in order to obtain advice as to the structure and configuration of the balconies.  Mr Drexel said that to the best of his recollection, that engineer was Mr Lemish (exhibit 38, par 41).  That is a reference to Peter John Lemish, an engineer who was then employed by Halpern Glick.  In cross‑examination, Mr Drexel said he remembered clearly going to see someone in Halpern Glick's office "and sitting at a table and asking questions and noting down the responses" (TS 597).

13. In Drexel London's original defence to the plaintiffs' claim, it was pleaded that Peter Lemish gave the advice which Mr Drexel incorporated in drawing 15.  Subsequently, Halpern Glick denied that Mr Lemish had given any such advice (exhibit 40).  The defence was then amended to plead that the advice was given by Mr Lemish "or another representative" of Halpern Glick.

14. Mr Drexel appeared to have no recollection of the circumstances in which the pleading was amended (TS 597).  However, he said he was "not excellent" at remembering names or faces, especially if he did not know people well.  In the end, he said he did not know whether he spoke to Mr Lemish: he might have said he had done so, but he could not remember who it was (TS 598).

15. Mr Lemish graduated from the University of Western Australia in 1973, with a Bachelor of Engineering degree.  In 1975, the degree of Master in Engineering Science was conferred on him by the University of New South Wales.  Mr Lemish was employed as a design engineer with Halpern Glick from 7 February 1976 until 25 September 1981 (exhibit 44, pars 2 ‑ 3).

16. Mr Lemish gave evidence that in 1981, he was a relatively inexperienced structural design engineer.  Most of his experience was in heavy engineering, involving concrete and steel structures such as factory buildings, three and four storey office buildings, process plants and similar structures.  He also had experience in concrete cantilevered balcony structures.  However, he had limited experience of timber structures or renovation projects.

17. In the course of his employment with Halpern Glick, Mr Lemish was involved in aspects of the engineering design for the conversion of the Old Soap Factory.  At the time, Mr Lemish worked under the supervision of Jack Swanson Scott, who was then an associate of the firm.  Mr Lemish said the principal engineer directly responsible for the project was Mr Glick.

18. Mr Lemish recalled liaising with Drexel London.  He said he met "Drexel London" on more than one occasion before construction began.  One such meeting was at the Drexel London office at the University of Western Australia.  He also met on site during the demolition and construction phases of the project (exhibit 44, pars 7 ‑ 8).

19. It was Mr Lemish's evidence that he did not provide any input into the details shown in Drexel London drawing 15.  Mr Lemish said he might have seen the drawing while involved in the project, but he was never asked to check the details or to comment on the structural adequacy of the proposed balconies.  He said that if he had been asked to consider the design of the balconies, he would have completed an Initial Project Data sheet recording receipt of instructions.  He said he would have performed calculations when checking the design and that he would have provided drawn design details to Drexel London (exhibit 44, pars 59 ‑ 60).

1. Mr Lemish expanded on his position in a statement given in response to that provided by Mr Drexel.  Mr Lemish said he would not have provided Mr Drexel with:

   "•size of the footings;

   •size of the steel members;

   •spacing and type of timber to be used as joists;

   •method of tying the balcony back to the building;

   •the type of fixing; or

   •the wood connections details,

   without checking those designs by calculation."  (exhibit 45, pars 8 ‑ 17)

2. Mr Lemish said it would have been necessary for him to determine the loads on the structural elements and to determine the appropriate size of the members before specifying the details.  He said that while an engineer with experience in timber structures or constructions similar to the balcony might have been in a position to provide those details without first calculating the loads, he did not have that experience.

3. He would not have been able to specify the size and details of the footings, steel members, bracing and fixing details without calculating the relevant loads or forces in the members.

4. Mr Lemish did carry out calculations of the kind referred to above in relation to various other aspects of the Old Soap Factory conversion.  These are set out on Halpern Glick calculation sheets (exhibit 1/12 ‑ 49).  However, there is no evidence that any such calculation sheets were produced by Mr Lemish or any other employee of Halpern Glick in relation to the balconies.

5. Although, as I have noted above, Mr Lemish said that an engineer with experience in timber structures might have been in a position to provide details to Mr Drexel without first calculating the relevant loads, I doubt whether anyone at Halpern Glick would have done so.  That is because I accept the evidence of Peter Blake, an experienced structural engineer in the employ of Halpern Glick.  He assumed the role of engineer when Mr Lemish left Halpern Glick in September 1981 (exhibit 46, par 8).  Mr Blake said that given the size and exposed position of the Old Soap Factory, it would be necessary to undertake the relevant calculations before advising on the sizes: and this would be "a few hours' work" (TS 884).  Mr Blake said there were circumstances in which an engineer might use judgment.  However, he was certain that in the circumstances of this case that would not have happened (TS 885).

6. Further, I have the impression from the way in which Mr Glick gave his evidence, that he was not likely to have countenanced the giving of casual advice.  A director (Mr Glick in this case) always signed drawings issued by Halpern Glick: and all calculations were recorded and kept (see exhibit 1, pages 12 ‑ 49; 129 ‑ 130).  As I have noted above, Mr Glick was punctilious even to the point of noting on Mr Drexel's letter of 7 December 1980, that he had received it by hand on 11 December.

7. In the end, despite Mr Lemish's evidence that it was unlikely he had provided the engineering details to Mr Drexel, he could say only that he had no recollection of the meeting which was the subject of Mr Drexel's evidence.  And Mr Drexel could not say positively that he had obtained the information from Mr Lemish.

8. The structural information set out in drawing 15 appears on two sketches made by Mr Drexel and said by him to have been brought back from his meeting with the Halpern Glick engineer (exhibit 1/1268 ‑ 9).

9. The notes contained on those sketches include the following:

   •"12 (dia) galv.m.s. rods" - in relation to a sketch of the bracing configuration;

   •"stainless steel trubolt TS‑12‑7SS" - in relation to the fixing of the timber wall plate;

   •a half‑housed joist‑wall plate joint;

   •a 200 x 300 millimetre plate, apparently containing eyes which form part of the bracing assembly;

   •"timber struct. grade karri" - apparently a reference to the appropriate timber for the construction of the balcony;

   •"150 x 150 @ 600 max. centres" - apparently a reference to the joist size;

•a sketch showing a cross‑section of the columns with the note:

"min 102 x 102 x 45 HS

127 x 127 x 49";

•a sketch of column footings showing the size 750 x 750 x 300 millimetre incorporating "F62" mesh 75 millimetres below the footing and with 25 millimetres of grout between the base of the column and the top of the footing.  At the base of the column a plate 250 x 250 x 16 is shown, this being bolted down by "4/M16 (diameter) HD bolts";

•what appears to be a steel beam 200 millimetres deep and 12 millimetres thick is shown welded by a continuous fillet weld to a 76 x 76 x 5 angle.  This appears to be the exterior steel beam at the extremity of each of the balconies.

1. In fact, on drawing 15 jarrah is specified not karri: the joist sizes are shown as 175 x 50 millimetres and the angle welded to the steel beam is shown as 127 x 76 x 5 millimetres.  Mr Drexel said he decided to specify jarrah in place of karri because it was a stronger timber; and that he increased the sizes of the joists and the angle in order to increase the strength of the structure.  He did so because, in his experience, engineers specified minimum sizes.  He said it was "not uncommon" for him to improve on the engineer's specification and that he was competent to do so (TS 545).  I accept that evidence.

2. Mr Drexel said also that he had not known in 1981, and did not know now, what a trubolt was.  Professor London's evidence was to the same effect.  I accept their evidence relating to that matter.

3. I am satisfied on the balance of probabilities that Mr Drexel did obtain the structural information contained in drawing 15 from an engineer.  I make that finding for the following reasons:

   1.The detailed structural information set out on drawing 15, and in Mr Drexel's sketches, is of a kind which I would expect an engineer to provide.  In particular, the very detailed code numbers for the trubolts and the bolts holding down the column base plates.  I accept Professor London's evidence that the information falls outside an architect's "skill base" (TS 776).

   2.I do not think even an experienced architect, such as Mr Drexel was in 1981, would have been so foolish as to design a substantial structure such as the balconies - and a structure which was to be erected in an exposed position - without advice from a structural engineer.

   3.Mr Drexel did not think he was the source of the information, because although he would have been aware of the questions to ask, he would "not necessarily" know "the sizes and the specific information" (TS 672).

4. However, I am not persuaded that Mr Drexel obtained the information from anyone at Halpern Glick.  I accept Mr Lemish's evidence that, for the reasons he gave as set out above, it was unlikely that he was the source.  He was the engineer assigned to the project, but although there are calculation sheets of his which relate to other structural aspects of the building, there are none relating to the balconies.

5. As I have noted above, Mr Blake replaced Mr Lemish when he left the employ of Halpern Glick.  Mr Blake said, and I accept, that he had no recollection of seeing any balconies on the Old Soap Factory site, nor of any involvement with structural aspects of the balcony design (exhibit 46, par 22).

6. As I have noted above, Mr Scott also worked on the project.  His evidence, which I accept, was that he did not design the balconies: nor did he provide any suggestions for their design or otherwise consider those structures (exhibit 48, par 21).  Mr Scott had refreshed his memory from the records he kept of the work he carried out in 1981 and 1982; and also from his diaries (although he was unable to find his 1981 diary) (exhibit 48, pars 13 ‑ 15).

The fifth defendants do pay the first and sixth defendants' costs of those proceedings insofar as those costs may have increased their costs of the action, to be taxed.

The sixth defendant's contribution notices dated 13 October 2004 against the first, second, third, fourth and fifth defendants be dismissed.

The sixth defendant do pay the costs of the first, second, third, fourth and fifth defendants of the proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.

References to costs in this order includes reserved costs.

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION: GOVE -v- BLACK & ORS [2006] WASC 298 (S2)

CORAM:   TEMPLEMAN J

HEARD:   6-9 & 13-21 NOVEMBER 2006, 14 FEBRUARY, 1 MARCH & 7 JUNE 2007

DELIVERED          :   21 DECEMBER 2006

SUPPLEMENTARY

DECISION              :6 JULY 2007

FILE NO/S:   CIV 2375 of 1997

BETWEEN:   SHARON LEE GOVE

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2370 of 1997

BETWEEN              :BARNABY PIERRE COLIN WOOD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2371 of 1997

BETWEEN              :PAUL CHARLES BLACKMAN

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2373 of 1997

BETWEEN              :KYLE THEODORE PETERS

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2374 of 1997

BETWEEN              :MICHAEL ANTONY KUBA

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2376 of 1997

BETWEEN              :SHELLEY MERRILYN GOLLAN

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2377 of 1997

BETWEEN              :MARYANNE FIORE

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2378 of 1997

BETWEEN              :MIA LEE FARINOSI

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2381 of 1997

BETWEEN              :TINA ELIZABETH D'CASTRO

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2382 of 1997

BETWEEN              :JULIETTE CHLOE VIRGINIE WOOD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2398 of 1997

BETWEEN              :DEAN DAVID HOLM GRAHAM

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2411 of 1997

BETWEEN              :IAN ROBERT MICHEL REGNARD

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2412 of 1997

BETWEEN              :DANNIELLE DORISSE ELIZABETH BECKWITH

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2413 of 1997

BETWEEN              :NIGEL KENNETH GILES

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

FILE NO/S              :CIV 2414 of 1997

BETWEEN              :MARC DREXEL

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Fifth Defendant

FILE NO/S              :CIV 2415 of 1997

BETWEEN              :ROBYN LESLEY DREXEL

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Fifth Defendant

FILE NO/S              :CIV 1202 of 1998

BETWEEN              :NEIL ALEXANDER GRANT

Plaintiff

AND

RICHARD ASH BLACK
First Defendant

ASH INVESTMENTS PTY LTD (ACN 007 949 395)
Second Defendant

THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
Third Defendant

CITY OF FREMANTLE
Fourth Defendant

DREXEL LONDON (A FIRM)
Fifth Defendant

HALPERN GLICK PTY LTD (ACN 008 729 204)
Sixth Defendant

Catchwords:

Costs - Trial of liability - Plaintiffs not consolidated before trial - Plaintiffs present common case at trial - Plaintiffs successful against some defendants - Whether several liability to successful defendants for costs specific to individual plaintiffs - Whether plaintiffs have one set of costs against unsuccessful defendants - Whether apportionment of costs between plaintiffs with one set of costs - Whether apportionment after assessment of damages

Legislation:

Nil

Result:

Contained in Appendix

Category:    A

Representation:

CIV 2375 of 1997

Counsel:

Plaintiff:     Mr G Porter

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2370 of 1997

Counsel:

Plaintiff:     Mr G Porter

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2371 of 1997

Counsel:

Plaintiff:     Mr G Porter

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2373 of 1997

Counsel:

Plaintiff:     Mr C L Phillips

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2374 of 1997

Counsel:

Plaintiff:     Mr C L Phillips

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2376 of 1997

Counsel:

Plaintiff:     Mr C L Phillips

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2377 of 1997

Counsel:

Plaintiff:     Mr C L Phillips

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2378 of 1997

Counsel:

Plaintiff:     Mr G Porter

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2381 of 1997

Counsel:

Plaintiff:     Mr C L Phillips

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2382 of 1997

Counsel:

Plaintiff:     Mr G Porter

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2398 of 1997

Counsel:

Plaintiff:     Mr C L Phillips

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2411 of 1997

Counsel:

Plaintiff:     Mr G Porter

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2412 of 1997

Counsel:

Plaintiff:     Mr C L Phillips

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Chris Phillips

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2413 of 1997

Counsel:

Plaintiff:     Mr G Porter

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

CIV 2414 of 1997

Counsel:

Plaintiff:     Mr B D Campbell

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Mony de Kerloy

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Pynt & Partners

CIV 2415 of 1997

Counsel:

Plaintiff:     Mr B D Campbell

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Mony de Kerloy

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Pynt & Partners

CIV 1202 of 1998

Counsel:

Plaintiff:     Mr G Porter

First Defendant             :     Mr P B O'Neal

Second Defendant         :     Mr S V Forbes

Third Defendant           :     Mr C L Hollett

Fourth Defendant          :     Mr J Eller

Fifth Defendant            :     Mr P Mendelow

Sixth Defendant            :     Mr S F Popperwell

Solicitors:

Plaintiff:     Talbot & Olivier

First Defendant             :     Downings Legal

Second Defendant         :     Greenland Brooksby

Third Defendant           :     Phillips Fox

Fourth Defendant          :     John Eller

Fifth Defendant            :     Jackson McDonald

Sixth Defendant            :     Pynt & Partners

Case(s) referred to in judgment(s):

Nil

1. TEMPLEMAN J:  On 23 March 2007, I published my reasons in relation to the costs of the liability issues in these actions.  I appended to my reasons a draft order which I invited the parties to consider and to comment on, as they thought fit.  I took this course because the costs issues are complex and I wanted to be sure that all parties had a full opportunity to state their respective positions and to correct any errors or omissions in my draft.

2. Subsequently, the solicitors for all parties other than the fourth defendant made short submissions in the form of letters to my associate.

3. I then sat again, at the request of the parties, to permit them to speak to their respective submissions.  Having taken these further submissions into account, I have re‑drawn the order.  It forms an appendix to these reasons.

4. The final order differs from the draft in a number of respects.  Some of these differences reflect the correction of errors and omissions and need no further comment.  However, there are some matters of principle which require further clarification.

1. In par 84 of my reasons, I noted that in actions involving multiple parties who have a common interest, it is usual to award a single set of costs in favour or against those parties, as may be appropriate.  For that reason, I included in the draft order a provision that the fourth and fifth defendants, jointly and severally, were to pay the plaintiffs' costs of the Group A, Group B and Drexel actions "to be taxed as one set of costs".

2. This proposal for joint and several liability was not the subject of any submissions at the previous hearing.  However, the plaintiffs object to an order in those terms.  They submit that because there were 17 separate actions, each of the successful defendants could, in theory, recover from one plaintiff an amount far greater than the costs of the action brought by that plaintiff.  The plaintiffs therefore propose that where a defendant has incurred costs for work done in respect of all actions, those costs should be apportioned equally between the individual plaintiffs who would then only be liable for one‑seventeenth of such costs.

3. In my view, it is appropriate for the plaintiffs to be jointly and severally liable for those costs of the successful defendants which were common to all the actions.  The plaintiffs consented to the order made on 17 September 2004 by which action 2375 of 1997 became the lead action.  Thus, the other plaintiffs united with the plaintiff in that action, so that the plaintiffs, in effect, sued jointly.  In my view, because all the plaintiffs stood to benefit from findings of liability, they should be required to accept the risk of their respective claims being unsuccessful.

4. However, I accept that where costs have been incurred by a successful defendant in relation to a specific plaintiff (that is, costs which have not been duplicated), it would be unfair to burden the other plaintiffs with the payment of those additional costs.

5. I therefore consider that the appropriate order is for the plaintiffs to be jointly and severally liable for those costs which are common to their actions, but to be liable individually for any costs relating specifically to individual actions.  Paragraphs 12 to 19 of the Order are intended to achieve that result.

6. The plaintiffs object also to the proposal that they have only one set of costs against the unsuccessful defendants.  The plaintiffs contend that such an approach would be unworkable.  Several reasons were advanced in support of this contention.  They include the following:

   (1)There have been changes in representation as between the plaintiffs during the course of the litigation.

   (2)Each plaintiff has incurred different expenses in preparing his or her claim for mediation and trial.  A taxation of the plaintiffs' costs as one set would not allow a proper claim by each plaintiff for the relevant costs and is likely to result in unfairness.

   (3)Before the order was made on 17 September 2004, binding the plaintiffs to the outcome of the lead action, the other plaintiffs had intended not to proceed to trial until that action had been determined.  After the order was made, solicitors who acted for more than one plaintiff generally charged the plaintiffs in equal shares for work which was of general application: and charged individual plaintiffs for work specific to his or her case.

   (4)Only some of the Group A and Drexel action plaintiffs incurred a liability for the costs of the final stages of preparation for the trial and of the trial itself.  Other plaintiffs made no commitment to contribute to those costs: and some plaintiffs incurred costs with other firms before the mediation took place.

7. In short, the plaintiffs contend that because they have been represented by a number of different solicitors at different stages of their actions, the preparation and taxation of one set of costs for 17 actions would be unworkable, because it would create practical and professional problems for the one solicitor or firm of solicitors ultimately responsible for preparing the bill.

8. Thus, it is submitted, the appropriate order would be for each plaintiff to submit a bill of costs for taxation, all bills being taxed by the Taxing Officer at the same time unless agreed otherwise, or unless directed by the Taxing Officer.

9. The principal objection to this course was articulated by counsel for the first defendant.  However, I understand that his submissions were supported by all defendants.  Counsel submitted, in substance, that the potential for duplication of costs inherent in the taxation of 17 bills, gave rise to a risk of injustice and would involve a burden that the plaintiffs should not be permitted to impose either on the defendants or on the Court.  Counsel submitted that the plaintiffs should have cooperated for the purpose of ensuring that they avoided the kinds of difficulties summarised above.

10. In the course of argument, it emerged that the dispute may be one of form rather than substance.  That is because the plaintiffs accept that they should not recover (or have to pay) for work which has been duplicated.  And, as I understand it, the defendants accept that where work has been carried out justifiably for or against individual plaintiffs, the proper costs should be allowed on taxation.

11. Although the formula I proposed involved a single set of costs, it continued by providing that the scale limits were not to apply to the costs of the mediation, or to any other item(s) which, in the opinion of the Taxing Officer, it was reasonable for a plaintiff to incur individually.  Ultimately, I think, the question is whether the responsibility for identifying common or duplicated costs should be left to the plaintiffs' solicitors or whether it should be for the Taxing Officer to resolve.

12. After some hesitation, I have come to the conclusion that the practical difficulties referred to above, and the potential for conflict between the solicitors, is such that it would be preferable for the matter to be left to the Taxing Officer.  I say "the Taxing Officer" (singular) to emphasise that one Taxing Officer should be responsible for the taxation of all bills so that there can be uniformity in the exercise of the various discretions which will inevitably arise.

13. I therefore consider that it is appropriate for the plaintiffs to prepare individual bills of costs, to be taxed at the same time, and in any event, by the same Taxing Officer.

14. That being so, I have set out, in par 9 of the Order, the procedure to be followed in the taxations and the basis on which they are to be conducted.  By way of further clarification, I note that the apportionment provision in par 9(5) is not necessarily the same as the Formula defined in par 2.  That is because, under par 9(5), there may be an apportionment among (for example) a small number of plaintiffs within Groups A and B, for whom work has been duplicated: while work has been carried out for others for which individual allowances are appropriate.

15. I consider that where costs are apportioned between plaintiffs, it is more appropriate to do so in accordance with the Formula (or par 9(5) where applicable) than by an equal division:  par 20 of the Order.

16. It is true that in one sense, the plaintiffs stood on an equal footing in relation to the issue of liability: they all had the same interest in the outcome of the trial.  However, they did not have the same financial interest in the outcome.  That being so, I think it appropriate to provide for an apportionment of costs payable and recoverable by the plaintiffs to reflect the respective risks they took in the litigation.

17. I do not accept that apportionment should await the outcome of the assessment of damages.  Such an approach would delay unreasonably the taxation of the costs of the successful defendants.  The actions against those defendants having been dismissed, the proceedings should now be brought to an end by a taxation of costs.

18. In my view, the trial on liability should be regarded as a discrete matter.  That being so, the taxation of costs of any trial in relation to the assessment of damages, will depend on the outcome of such trial and the effect of any offers made in that context.

19. Different considerations apply in relation to the fourth and fifth defendants.  Counsel for the fourth defendant told me that if the plaintiffs now sought a taxation of their costs against his client, it would apply for a stay.

20. Counsel for the plaintiffs then said that the plaintiffs understood the fourth defendant's position, and did not object to waiting "until the end of the process" (TS 1214).

21. In these circumstances, I do not think it necessary to make a formal order preventing the plaintiffs from taxing their costs now.  Indeed, it would be inappropriate to grant a stay when the fourth defendant does not seem to be at risk and no application has been made for such relief.

22. Where costs are to be apportioned between the plaintiffs, or some of them, I consider that it should be based on the amounts of their respective claims as they stood at the commencement of the trial.  That is, 6 November 2006:  par 2 of the Order.

23. Those amounts reflect the potential liabilities of the defendants and hence, the magnitude of the risks and benefits contemplated by the parties.

24. I accept that the amounts in question were put forward for the purposes of the mediation.  The plaintiffs will not, therefore, be prejudiced by any subsequent amendment.

25. The order provides for the fifth defendant's third party proceedings (against the sixth defendant) to be dismissed with no order as to costs.  That is because I accept the submission of counsel for the sixth defendant that the proceedings were effectively subsumed in the trial.

26. I have included in the order a provision for liberty to apply.  This is intended to facilitate the resolution of any unforeseen issues of principle.  It is not intended to detract from the discretion of the Taxing Officer.

27. The parties will appreciate that the taxation of costs is likely to be a difficult and expensive exercise.  However, if the costs issues cannot be agreed without the need for a taxation, the parties may wish to resolve their differences by mediation.  If the parties wish to proceed in that way, they should contact the Principal Registrar, who will make the appropriate arrangements and give directions if necessary.

APPENDIX

Order

1. In this Order, the following terminology is used:

   (1)"the Group A Actions" means the actions brought by the plaintiffs and having the numbers listed below:

   Sharon Lee Gove  2375 of 1997

   Barnaby Pierre Colin Wood                 2370 of 1997

   Paul Charles Blackman  2371 of 1997

   Mia Lee Farinosi (Martin)                   2378 of 1997

   Juliette Chloe Virginie Wood              2382 of 1997

   Ian Robert Michel Regnard                  2411 of 1997

   Nigel Kenneth Giles  2413 of 1997

   Robyn Drexel  2415 of 1997

   Neil Alexander Grant  1202 of 1998

   (2)"the Group B Actions" means the actions brought by the plaintiffs and having the numbers listed below:

   Kyle Theodore Peters  2373 of 1997

   Michael Antony Kuba  2374 of 1997

   Shelley Merrilyn Gollan  2376 of 1997

   Maryanne Fiore  2377 of 1997

   Tina Elizabeth D'Castro (Ackerman)     2381 of 1997

   Dannielle Dorisse Elizabeth Beckwith  2412 of 1997

   (3)"the Drexel Action" means action number 2414 of 1997 brought by Marc Drexel;

   (4)"the Graham Action" means action number 2398 of 1997 brought by Dean David Holm Graham.

2. "The Formula" means the proportion which the claim maintained by an individual Group A or Group B plaintiff as at 6 November 2006, bears to the total amount of such claims.

3. References to costs in this Order includes reserved costs.

4. In each of the Group A and Group B Actions:

   (1)judgment is to be entered for the plaintiffs against the fourth and fifth defendants, for damages to be assessed;

   (2)as between the fourth and fifth defendants, the damages are to be paid as to 70 per cent by the fourth defendant and 30 per cent by the fifth defendant;

   (3)the plaintiffs' claims against each of the first, second, third and sixth defendants are dismissed.

5. In the Drexel Action:

   (1)judgment is to be entered for the plaintiff against the fourth defendant, for damages to be assessed;

   (2)the plaintiff's claims against each of the first, second, third and fifth defendants are dismissed;

   (3)the fifth defendant's third party proceeding is dismissed with no order as to costs.

6. In the Graham Action:

   (1)judgment is to be entered for the plaintiff against the fourth defendant, for damages to be assessed;

   (2)the plaintiff's claims against each of the first, second and third defendants are dismissed.

7. The fourth and fifth defendants, jointly and severally, do pay the plaintiffs' costs of the Group A and Group B Actions, to be taxed in accordance with the procedure and on the basis set out in paragraph 9.

8. The fourth defendant do pay the plaintiffs' costs of the Drexel and Graham Actions, to be taxed in accordance with the procedure and on the basis set out in paragraph 9.

9. (1)     Each of the plaintiffs is to prepare a bill of costs for taxation.

   (2)Subject to any agreement between the parties or any direction by the Taxing Officer, all such bills of costs are to be taxed at the same time.

   (3)The scale limits are not to apply to the costs of the mediation, or to any other item(s) which, in the opinion of the Taxing Officer, it is reasonable for a plaintiff to claim individually.

   (4)Subject to (3) above, only a single set of costs shall be allowed:  that is, for any item or items which, in the opinion of the Taxing Officer, has or have been duplicated unreasonably.

   (5)Where a single set of costs is allowed for any item, then, subject to any agreement between the relevant plaintiffs, such costs shall be apportioned between those plaintiffs in the same proportion as their individual claims, maintained as at 6 November 2006, bear to the total amounts claimed by those plaintiffs.

   (6)Where costs are allowed on an individual basis, those costs shall be paid to the plaintiffs concerned.

10. The fourth and fifth defendants, jointly and severally, do pay the costs of the Group A plaintiffs of obtaining a transcript of the trial, such costs to be apportioned between the Group A plaintiffs in accordance with the Formula.

11. As between the fourth and fifth defendants, the costs are to be paid as to 70 per cent by the fourth defendant and 30 per cent by the fifth defendant.

12. (1)     The plaintiffs in the Group A, Group B, Drexel and Graham Actions, jointly and severally, do pay:

    (a)the first defendant's costs of the actions including the cost of obtaining a transcript of the trial;

    (b)the second defendant's costs of the actions; and

    (c)the third defendant's costs of the actions, with a certificate for Queen's Counsel and junior counsel and including as a disbursement, the cost of removal and storage of the collapsed balcony timbers.

    (2)The scale limits are not to apply to the costs of the mediation or to any other item(s) which, in the opinion of the Taxing Officer, it was reasonable for the first, second or third defendants to duplicate by reason of the number of plaintiffs.

    (3)Subject to subparagraph (2) above, the costs of each of the first, second and third defendants are to be taxed as a single set of costs.

    (4)Where costs were incurred by the first, second or third defendants in relation to individual claims, those costs shall be paid by the plaintiffs concerned.

13. (1)     The plaintiffs in the Group A, Group B and Drexel Actions, jointly and severally, do pay the sixth defendant's costs of the actions (the sixth defendant being the fifth defendant in the Drexel Action) including the cost of obtaining a transcript of the trial.

    (2)The scale limits are not to apply to the costs of the mediation or to any other item(s) which, in the opinion of the Taxing Officer, it was reasonable for the sixth defendant to duplicate by reason of the number of plaintiffs.

    (3)Subject to subparagraph (2) above, the costs of the sixth defendant are to be taxed as a single set of costs.

    (4)Where costs were incurred by the sixth defendant in relation to individual claims, those costs shall be paid by the plaintiffs concerned.

14. Subject to any agreement between the plaintiffs, any costs for which they are liable jointly and severally shall be apportioned between them in accordance with the Formula.

15. The fifth defendant is to pay to the plaintiffs in the Group A and Group B Actions the amount of the costs they are ordered to pay to the sixth defendant.

16. The costs are to be apportioned between these plaintiffs in accordance with the Formula.

17. The first defendant's contribution notices dated 14 October 2004 to the second, third, fourth, fifth and sixth defendants are dismissed.

18. The first defendant do pay the costs of each of the second, third, fourth, fifth and sixth defendants of those proceedings insofar as those proceedings may have increased any of those defendants' costs of the trial, to be taxed.

19. The third defendant's third party proceedings against the fifth defendant are dismissed.

20. The third defendant do pay the fifth defendant's costs of the proceedings, insofar as those costs may have increased the fifth defendant's costs of the trial, to be taxed.

21. The third defendant's contribution notices dated 6 October 2004 against the first, second, fourth and sixth defendants are dismissed.

22. The third defendant do pay the first, second, fourth and sixth defendants' costs of those proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.

23. The fourth defendant's contribution notice dated 14 October 2004 against the first, second, third and sixth defendants are dismissed.

24. The fourth defendant do pay the first, second, third and sixth defendants' costs of the proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.

25. The fourth defendant's contribution notice dated 14 October 2004 against the fifth defendant is dismissed.

26. The fourth defendant do pay the fifth defendant's costs of those proceedings insofar as those costs may have increased the fifth defendant's costs of the trial and do pay the costs of the hearing on 1 March 2007, to be taxed.

27. (1)     The fifth defendant's contribution notices dated 23 December 1998 and 18 January 1999 against the first defendant, and their fourth party proceedings against the sixth defendant are dismissed.

    (2)The fifth defendant do pay the costs of the first and sixth defendants of those proceedings insofar as those proceedings may have increased either of those defendants' costs of the trial, to be taxed.

28. (1)     The sixth defendant's contribution notices dated 13 October 2004 against the first, second, third, fourth and fifth defendants are dismissed.

    (2)The sixth defendant do pay the costs of the first, second, third, fourth and fifth defendants of the proceedings insofar as those costs may have increased any of those defendants' costs of the trial, to be taxed.

29. All parties are to have liberty to apply on 48 hours written notice to the other parties.