Humphris v ConnectEast (No 4) - [2017] VSC 104

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

S CI 2014 3458

CLIVE ARTHUR HUMPHRIS and

DOROTHY JUNE HUMPHRIS

Plaintiffs

CONNECTEAST NOMINEE COMPANY PTY LTD (ACN 108 736 992) and CONNECTEAST PTY LTD (ACN 101 213 263)

Defendants

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 MARCH 2017
DATE OF JUDGMENT:	31 MARCH 2017
CASE MAY BE CITED AS:	HUMPHRIS v CONNECTEAST (No 4)
MEDIUM NEUTRAL CITATION:	[2017] VSC 104

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PRACTICE AND PROCEDURE – Application to amend statement of claim – Identification of the real issues is dispute between the parties – Whether new claim or particularisation of existing claim – Leave granted to insert further particulars – Leave otherwise refused.

COSTS – Whether special costs order should be made – Whether proceeding should be stayed until prior costs orders satisfied.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	In person
For the Second Plaintiff	No appearance
For the Defendants	Ms C G Button with Ms R L Kaye	Ashurst

HIS HONOUR:

In this application, the first plaintiff[1] applies for leave to serve a third further amended statement of claim in the form dated 8 March 2017 to allege the inadequacy of:

(a) the acoustic walls F01 to F05.
(b) the acoustic treatment of the Mullum Mullum tunnel.
The defendants oppose leave to amend the statement of claim and seek an order for costs owing and incidental to the adjournment of the trial and the amendment; and a stay of the proceeding until payment of such an order and other costs orders.

[1]The first plaintiff purported to also appear on behalf of his wife, the second plaintiff.

The essential allegations of the plaintiffs in support of the claim in this proceeding are as follows:

(a) In February 2004, they purchased a house at 5 Robinson Court, Donvale.
(b)In October 2004, the defendants and the State of Victoria entered into a Concession Deed with respect to the construction of what is known as the EastLink tollway.
(c)In June 2008, the EastLink tollway was opened.
(d)As a result of the defendants’ inadequate construction of the EastLink tollway, the plaintiffs’ house at 5 Robinson Court, Donvale was exposed to unreasonable noise levels from the EastLink tollway.

The procedural history

In August 2013, the plaintiffs commenced a proceeding in the Supreme Court of Victoria, S CI 2013 4183, (‘the First Proceeding’) against the defendants and, by statement of claim dated 14 August 2013, made allegations which included the following:

(a)The defendants had breached the Concession Deed. In particular, the plaintiffs relied upon cl 56.6 of the Concession Deed which states:
During the Concession Period, the Concessionaires must carry out the Construction Activities (and ConnectEast must carry out the Operation Activities) so as to prevent nuisance, damage, unreasonable noise or disturbance (except to the extent that any nuisance, noise or disturbance is the unavoidable consequence of the performance of the Construction Activities or the Operation Activities in accordance with this Deed).

(b)The road traffic…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2017] VSC 104
Decision Date: 31 MARCH 2017

CaseChat Overview and Summary

In the case of Humphris v ConnectEast (No 4), the applicant, Humphris, sought to amend their statement of claim in an ongoing dispute with ConnectEast. The case was heard in the Supreme Court of New South Wales. The primary dispute centred around the admissibility of certain amendments to the statement of claim and the associated costs implications. The court was tasked with determining whether the proposed amendments constituted a new claim or a particularisation of the existing claim, as well as deciding on the appropriate costs orders, including whether to impose special costs and whether to stay the proceedings until prior costs orders were satisfied.

The court needed to ascertain whether the proposed amendments introduced new claims or merely particularised existing ones. This required a careful analysis of the content of the amendments and their alignment with the original claim. Additionally, the court had to consider the implications of the amendments on the overall progress of the case, particularly in relation to the management of costs and the potential for unnecessary delays. The court was also required to weigh the principles of fairness and efficiency in litigation against the potential prejudice to the defendant if the amendments were allowed.

In granting leave to insert further particulars, the court found that the proposed amendments were necessary to identify the real issues in the dispute and did not introduce new claims. However, the court declined to grant leave for other proposed amendments, finding that they would have introduced new claims. The court also refused to make a special costs order, noting that the applicant had not demonstrated exceptional circumstances warranting such an order. Furthermore, the court determined that the proceeding should not be stayed until prior costs orders were satisfied, as this would unduly prejudice the applicant.

The court's final orders included granting leave to insert further particulars into the statement of claim, refusing leave for other proposed amendments, declining to make a special costs order, and deciding against staying the proceedings until prior costs orders were satisfied. These decisions reflect the court's careful consideration of the balance between the rights of the parties and the need to manage the litigation process efficiently.

Orders