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Hess v Seaside City Developments Pty Ltd

Hess v Seaside City Developments Pty Ltd

Case [2022] NSWSC 855 30 June 2022

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Hess v Seaside City Developments Pty Ltd [2022] NSWSC 855
Hearing dates: 23 April 2021; 4 June 2021; 9 June 2021
Date of orders: 30 June 2022
Decision date: 30 June 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [84]

Catchwords:
CIVIL PROCEDURE — pleadings — negligence — amendment opposed — whether statement of claim deficient — statement of claim generally adequate — amendment allowed subject to further amendment as to precise risk of harm
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — whether any reasonable cause of action disclosed — claim of dual vicarious liability properly understood as alternative claims — summary dismissal refused

Legislation Cited:
Civil Liability Act 2002 s 5B
Uniform Civil Procedure Rules 2005 rr 13.4, 14.28(1)

Cases Cited:
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263
Day v Ocean Beach Hotel Shell Harbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6
Nominal Defendant v Cooper [2017] NSWCA 280
Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19
Pi v Zhou [2016] NSWCA 24
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Shoalhaven City Council v Pender [2013] NSWCA 210
Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: John Hess (P)
Seaside City Developments Pty Ltd (D1)
Richtech Pty Ltd (D2)
Cardno (Qld) Pty Ltd (D3)
Representation:
Counsel:
L Morgan (P)
C O’Neill (D1, D2)
R Hosking (D3)
Solicitors:
Beilby Poulden Costello (P)
Bridges Lawyers (D1, D2)
Carter Newell (D3)

File Number(s): 2020/229075
Publication restriction: Not Applicable

Judgment

On 28 January 2017 at about 9.50pm, the plaintiff was riding a motorcycle south in Cylinders Drive in an area known as Seaside City, south of Kingscliff in the north of NSW. At the intersection of Cylinders Drive with Edgewater Lane, the plaintiff collided with an area of pavement which extended from the eastern side of the road (“the butterfly chicane”). He was dislodged from his motorcycle and suffered serious injuries to his head, back, right hip and pelvis and ribs.
On 6 August 2020, the plaintiff commenced proceedings against three defendants:

Seaside City Developments Pty Ltd – the first defendant (“Seaside”);

Richtech Pty Ltd – the second defendant (“Richtech”); and

Cardno (Qld) Pty Ltd – the third defendant (“Cardno”).

He also commenced separate proceedings against the Tweed Shire Council, which is the local roads authority for Cylinders Drive. Those proceedings are not directly concerned with the matters raised before the Court in these proceedings, and upon which judgment is to be delivered.

Notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hess v Seaside City Developments Pty Ltd

Details

AGLC: Hess v Seaside City Developments Pty Ltd [2022] NSWSC 855
Case: [2022] NSWSC 855
Decision Date: 30 June 2022

CaseChat Overview and Summary

The case of Hess v Seaside City Developments Pty Ltd involved the plaintiff, Hess, suing the defendant, Seaside City Developments Pty Ltd, for negligence. The dispute centred around allegations of inadequate construction practices leading to personal injury and property damage. The case was heard in the Supreme Court of New South Wales. The primary legal issues revolved around the adequacy of the plaintiff's statement of claim and whether the proceedings should be summarily dismissed. Specifically, the court had to determine if the plaintiff's statement of claim was deficient and whether any reasonable cause of action had been disclosed.

The court examined the statement of claim and found it to be generally adequate, though it required some clarification. The plaintiff's claim for dual vicarious liability was understood as presenting alternative claims. The court concluded that the statement of claim was sufficient to warrant a response, but further amendment was necessary to clearly articulate the precise risk of harm alleged. Regarding the summary dismissal, the court found that the plaintiff had disclosed a reasonable cause of action, and thus refused the defendant's application for dismissal. The court allowed the plaintiff to amend the statement of claim to better define the risk of harm, subject to the defendant's right to further oppose if necessary.

The final orders of the court were to permit the plaintiff to amend the statement of claim to specify the risk of harm in more precise terms. The court also denied the defendant's application for summary dismissal, allowing the proceedings to continue. This decision emphasised the importance of clarity in pleadings, particularly in cases involving complex liability claims, while also underscoring the court's reluctance to dismiss claims prematurely without proper exploration of the merits.

Orders