Jansen v Greville [No 2]
[2021] WADC 60
•18 JUNE 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JANSEN -v- GREVILLE [No 2] [2021] WADC 60
CORAM: STEVENSON DCJ
HEARD: 26 MARCH 2021 [& SUPPLEMENTARY WRITTEN SUBMISSIONS ON 23 APRIL 2021 AND 29 APRIL 2021]
DELIVERED : 18 JUNE 2021
FILE NO/S: APP 71 of 2020
BETWEEN: JAN JANSEN
Appellant/Judgment Debtor
AND
GUY DAVID GREVILLE
First Respondent/Judgment Creditor
ZENITH TRUST CO LTD
Second Respondent/Judgment Creditor
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE WALTON
File Number : GCLM 1470 of 2012
Catchwords:
Appeal - Magistrates Court - General Procedure Claim - Negligence - Nuisance - Building works caused damage to adjoining property - Owner - Occupier - Whether any discernible error of fact or law or wrong exercise of discretion - Joinder of parties - Limitation of actions - Wrong party - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
District Court Rules 2005 (WA), pt 6, s 50(1), s 50(3), s 50 (4)
Limitation Act 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(3), s 40(4), s 40(5)
Rules of the Supreme Court 1971 (WA), O 9A, O 18 r 4
Result:
Appeal allowed
Consequential orders to be determined
Representation:
Counsel:
| Appellant/Judgment Debtor | : | Mr P V Lansell |
| First Respondent/Judgment Creditor | : | Mr J R Criddle |
| Second Respondent/Judgment Creditor | : | Mr J R Criddle |
Solicitors:
| Appellant/Judgment Debtor | : | Lansell Legal |
| First Respondent/Judgment Creditor | : | McCabe Curwood |
| Second Respondent/Judgment Creditor | : | McCabe Curwood |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Girando v Girando (1997) 18 WAR 450
House v The King (1936) 55 CLR 499
Jansen v Greville [2021] WADC 10
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Silkline Investments Pty Ltd v Challenge Ltd (Unreported, WASC, Library No 980610, 22 October 1998)
STEVENSON DCJ:
Overview
In September 2008, the appellant (Mr Jansen) undertook some building works for a client on land situated at 19A Walter Street, Claremont (19A). The work involved removal of an existing asbestos fence and construction of a new limestone retaining wall.
The adjoining property at 19 Walter Street, Claremont (the Property) is associated with the first respondent (Mr Greville). However, critically for present purposes, Mr Greville has never been the registered proprietor of the Property.
The original fence removed by Mr Jansen was located about 1.5 m on the 19A side of the actual common boundary between the properties.
On 18 September 2008, shortly after Mr Jansen had removed the original fence on 19A and excavated a trench for the footings for the new wall, the brick and masonry carport and an associated fence on the Property partially failed, collapsing over the common boundary on to 19A.
On 18 September 2012, exactly four years later, Mr Greville lodged a General Procedure Claim in the Magistrates Court:
… for damages resulting from the Defendant's negligent excavation work on a neighbouring property on or around 17 September 2008 causing the collapse of the Claimant's retaining wall and carport.
(emphasis added)
On 25 August 2020, after a three day trial, his Honour Magistrate Walton made an order that 'judgment is entered for the Claimant in the amount of $44,079.70' (the judgment) (emphasis added).
It is noteworthy, that when judgment was entered, Zenith Trust Co Ltd (Zenith Trust) had been joined as a second claimant pursuant to an oral application made during the trial by counsel for Mr Greville. This was a direct response to the issue of legal ownership of the Property, and more particularly the identity of the party alleged to have suffered loss as a result of the damage caused to the Property. The reason for the application was that Zenith Trust was, according to the Certificate of Title at the relevant time (18 September 2008), the owner of the Property and the legal entity which had arguably suffered damage.
At the time, Zenith Trust's joinder application was opposed by counsel for Mr Jansen (not the same counsel retained for this appeal). The application was determined by the learned magistrate as part of his written reasons for decision dated 25 August 2020 (the primary decision). The issue as to whether the claim was commenced by the proper party which suffered the alleged loss is a vexed one, in the context of it being a live issue on the pleadings and also at all times during the trial in the Magistrates Court.
The primary factual issue on the evidence during the trial in 2018 was causation. Did Mr Jansen's negligence cause the carport and wall on the Property to collapse, or was it caused by the structural inadequacy of the carport and wall itself. The fundamental underlying legal issue was whether Mr Jansen was liable to Mr Greville for any resultant physical damage to the carport and wall in negligence or nuisance, on the basis Mr Greville was the owner of the Property, in contradistinction to his alleged use of the Property as an occupier. It is arguable that the nature of the recoverable loss by way of damages might differ between an owner and a mere occupier, which may also be dependent on the basis of the legal cause of action.
It is now common ground between the parties that at the material time on 18 September 2008:
1.Zenith Trust had no legal proprietary interest as owner of the Property for the purpose of these proceedings because on 1 April 2004, some four and half years earlier, it had resigned as trustee of the Greville 1984 Trust (the Trust).
2.Zenith Trust purchased the Property as trustee on behalf of the Trust on 9 August 2001.
3.There is no evidence if Zenith Trust, which was based in Guernsey, Channel Islands still exists as a legal entity.
The actual position is that at the material time a Gibraltar based company, North Atlantic Trust Company Limited (North Atlantic), was the legal entity which was trustee of the Trust. Accordingly, North Atlantic held the legal and beneficial interest in the Property on behalf of the Trust, on the assumption the Trust property was lawfully vested in North Atlantic on the resignation of Zenith Trust. For this reason, Mr Jansen contends North Atlantic is the proper party entitled to claim damages for physical damage to the Property arising out of his alleged negligence. For a number of legal and factual reasons this issue is moot and cannot be resolved on appeal.
The central issue raised in this appeal is whether Mr Jansen owed a relevant duty of care to Mr Greville for physical damage caused to the Property, when Mr Greville was, at best, a mere occupier (which fact is also put in issue by Mr Jansen), and if so, what damages Mr Greville is entitled to as a result of Mr Jansen's negligence? These legal and factual issues were not determined in the Magistrates Court proceedings.
This question was never dealt with by the learned magistrate because his Honour purported to determine the legal liability of Mr Jansen on the basis pleaded by Mr Greville that he (Mr Greville) was at all material times the 'owner' of the Property - which of course he was not and never has been.
Mr Greville's Statement of General Procedure Claim (Form 19) dated 16 April 2016 pleaded:
[1]At all material times the Claimant was the owner of premises located at 19 Walter Street, Claremont ('the Premises') in the State of Western Australia.
This pleading is consistent with the description of Mr Greville's claim as set out in the General Procedure Claim form which initiated the action years earlier on 18 September 2012. At that time the claim was described as follows:
The Claimant's claim is for damages resulting from the Defendant's negligent excavation work on a neighbouring property on or around 17 September 2008 causing the collapse of the Claimant's retaining wall and carport full particulars of which have been rendered, together with interest at the rate of 6% pursuant to s.12 of the Magistrates Court (Civil Proceedings) Act 2004 from 17 September 2008, until payment of judgment and costs. (emphasis added)
Mr Jansen never admitted or denied in his Statement of Defence dated 9 June 2016 that Mr Greville was the owner of the Property. Accordingly this factual controversy remained a live issue to be determined by the learned magistrate as a preliminary matter giving rise to the alleged duty of care in negligence or nuisance, and the nature of any recoverable damages.
Mr Jansen contends neither Mr Greville, nor Zenith Trust, is entitled to the cost of reinstatement of the Property (the judgment sum which was awarded by the learned magistrate to Mr Greville only) because they did not suffer the loss for which damages have been awarded. Mr Jansen says North Atlantic is the proper party entitled to claim the damages, but says any such claim (and there is none made in any event by North Atlantic) is statute barred under the Limitation Act2005 (WA) because the six year limitation period for bringing the claim elapsed in 2014 (it is now 2021). At this stage the reader would be forgiven for thinking of Bleak House by Charles Dickens.
As a result of the issues raised by the appeal, Mr Greville (who was not the legal owner of the Property at the relevant time), now seeks to change the legal basis of his claim against Mr Jansen. This change of position is at the behest of an insurer of the Property at the relevant time, which seeks to change Mr Greville's pleaded position as 'owner' of the Property to a claim that he (and thereby the insurer) is entitled to the benefit of the judgment amount on the basis he was an 'occupier' and he, himself, suffered the loss.
There is a reference in written communications on the Magistrates Court file that 'Guy Warwick and Louisa Warwick' had insurance cover for damage to the Property at the relevant time. For present purposes it is assumed that 'Guy Warwick' and the claimant 'Guy David Greville' are the same person. Mr Greville's claim was always a subrogated claim but it is trite law that the insurer cannot be put in a better position or different position than the insured - it is the same shoes whoever is wearing them.
The difficulty with this proposition for the purposes of the appeal is that the learned magistrate purported to award damages to Mr Greville on the basis that he was the 'owner' of the Property when he was not, and to have further attributed a duty of care on that basis against Mr Jansen.
With respect, the learned magistrate does not appear to have appreciated the significance of the point in the primary decision or the judgment order. As a result, he has conflated the claimant parties by referring to them as a single entity and describing them jointly, in the singular, for all relevant purposes as 'the Claimant' (when Zenith Trust was understood, albeit wrongly, to be the legal owner). Mr Greville and Zenith Trust have been treated synonymously as the 'owner' when neither was in fact the owner of the Property at the material time.
In my view, for the reasons which follow, the appeal must be allowed and the judgment in favour of 'Mr Greville' set aside.
Suspension of enforcement of judgment appeal (the registrar's decision)
Pending the outcome of this appeal Mr Jansen brought an application under s 15 of the Civil Judgments Enforcement Act (2004) (WA) seeking suspension of the enforcement of the judgment sum of $44,079.70. This application was dismissed by Registrar Kingsley on 12 February 2021 on the basis that he was not persuaded there were special circumstances to warrant suspension of enforcement: Jansen v Greville [2021] WADC 10.
On 18 February 2021, Mr Jansen filed a notice of appeal from the learned registrar's decision in this appeal. In my view, that appeal should have been the subject of separate appeal proceedings because it arises out of a different decision by a different judicial officer in a different court and different considerations apply.
As a preliminary matter at the commencement of the hearing of this appeal, the parties agreed that the registrar's appeal should abide the determination of the substantive appeal without prejudice to the right of either party to seek to have it heard and determined on a different occasion, if the need arises. In my view, this pragmatic course of action was appropriate in the circumstances.
Statutory provisions governing the appeal
This appeal is governed by pt 7 of the Magistrates Court (Civil Proceedings) Act2004 (WA) (MCCPA) and must be conducted in accordance with pt 6 of the District Court Rules 2005 (WA) (DCR).
The appeal must be commenced within 21 days of the date of judgment in the Magistrates Court, unless this court grants leave for the appeal to be lodged out of time: s 40(3) MCCPA. Although the General Order entering judgment for 'the Claimant' was made on 25 August 2020, the matter was the subject of a further directions hearing before the learned magistrate on 1 October 2020. The appeal notice was filed in this court on 16 October 2020 (the appeal notice).
The grant of an extension of time to commence an appeal is not automatic. Relevant considerations include the length of the delay, the applicant's explanation for the delay, any actual prejudice the respondent will suffer, the prospects of the applicant succeeding in the appeal, and whether on a fair and balanced consideration of the matter a strict application of the procedural rules would constitute an injustice. See generally: Girando v Girando (1997) 18 WAR 450, 454.
If an extension of time to commence the appeal outside the 21 day period is necessary, on the basis it has not been put in issue by the respondents, I would grant leave pursuant to s 40(3) MCCPA.
The nature of the appeal hearing
This court must decide the appeal on the material and evidence that was before the Magistrates Court, and any other evidence that it gives leave to admit, which may only be given 'in exceptional circumstances': s 40(4) and s 40(5) MCCPA.
Because this court hears appeals from a number of different jurisdictions, the DCR provide that this court must not grant leave to a party to adduce evidence that was not adduced in the primary court 'unless satisfied there are special grounds for doing so': r 50(3) DCR. This requirement is, however, subject to 'the written law that provides for the appeal': r 50(4) DCR.
The result, as a matter of statutory construction, is that this appeal is conducted by way of 'a reconsideration of the evidence' that was before the Magistrates Court unless the parties agree otherwise: r 50(1) DCR, unless this court is satisfied that 'exceptional circumstances' exist to grant a party leave to adduce additional evidence.
The grounds of appeal in the appeal notice concern the ownership of the Property, the joinder of Zenith Trust as second claimant and the reasons in the primary decision giving rise to Mr Jansen's legal liability to pay the judgment sum to Mr Greville. The grounds of appeal are said to arise out of various alleged errors of fact, errors of law and a wrong exercise of discretion on the part of the learned magistrate.
Accordingly, this appeal must be determined on a reconsideration of the evidence that was adduced in the Magistrates Court, and the powers of this court are exercisable only if the appellant can demonstrate that the learned magistrate's decision is the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172. The power, in the case of an appeal by way of rehearing, can only be exercised for the correction of error, in contradistinction to an appeal by way of a hearing de novo: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203.
As to alleged discretionary error on the part of a primary decision‑maker, an appeal court may intervene if it is shown that the decision is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Accordingly for the appeal to be allowed, Mr Jansen must discharge the burden of proof on him by demonstrating that the learned magistrate made a relevant and material error of law or fact, or that he wrongly exercised a material discretion in making his decision.
The first respondent's application to adduce additional evidence in the appeal
On 22 December 2020, at the same time the appeal was listed to be heard by a judge, a registrar made a programming order that 'the first respondent file and serve any affidavit by 15 February 2021'. This order was substituted by a consent order made by Principal Registrar Melville on 13 January 2021 which provided that the 'first respondent have leave to file an affidavit by 15 February 2021 unless the appellant objects to the affidavit being admitted into evidence in which event the admissibility of the affidavit' would be determined by the appeal judge.
On 16 February 2021, the first respondent filed two further affidavits. First, a purported affidavit sworn by Mr Greville in Indonesia dated 6 February 2021. Secondly, an affidavit sworn by Mr Reddan on 12 February 2021.
On 5 March 2021, an affidavit in support of Mr Greville's application to adduce further evidence was filed by his solicitor on the record, Mr Winburn‑Clarke, who also relevantly deposed that he acts for Chubb Insurance Australia Limited (Chubb Insurance). The affidavit was sworn on 4 March 2021.
At the same time on 5 March 2021, the respondents filed an application in the appeal for:
An order granting leave to adduce evidence pursuant to Rule 50(2) and to rely at the appeal upon the affidavits of Mr Greville and Mr Reddan.
Again in this material there appears, with respect, to be conflation of the interests and rights of 'the respondents' when they are as a matter of law separate legal entities.
On the hearing of the application during the appeal this point was not directly canvassed with counsel, but having regard to the circumstances of the matter I have assumed the application was made for the benefit of the first respondent, Mr Greville.
I have adopted this approach because as I understand it, the intended purpose of the proposed additional evidence was to adduce evidence of first, Mr Greville's alleged occupation of the Property at the material time and secondly, that Mr Greville obtained insurance cover from Chubb Insurance for the Property, which cover paid out the cost of the damage to the carport and brick wall.
On the hearing of the appeal, the application to admit the additional evidence and materials was opposed by Mr Jansen.
It is correctly accepted by Mr Winburn‑Clarke in his affidavit that the proposed affidavit of Mr Greville is not properly sworn or witnessed by an authorised person, such as a Notary Public. It seems Mr Greville now resides on a remote part of the island of Pulau Rote in Indonesia and has not occupied the Property since about 2011. There is no evidence as to who the registered proprietor of the Property is since 2011.
The foreshadowed proposal that Mr Greville give oral evidence at the appeal was abandoned by reason of Mr Winburn‑Clarke's inability to make further contact with him.
Mr Reddan's affidavit deposes that Chubb Insurance was the insurer of the Property as at 18 September 2008 and attaches the relevant policy schedule and policy wording. It is noteworthy that the policy schedule names 'Guy Warwick and Tagora Pty Ltd' as the insured. Further the policy cover appears to be issued by 'Chubb Insurance Company of Australia Limited'. Whether this is same company as Chubb Insurance Australia Limited is not known.
In Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148, Newnes JA said the following in relation to the term 'exceptional circumstances' [89]:
…. As this court pointed out in Shilkin v Taylor [2011] WASCA 255 [68], it is not helpful to attempt to describe what would constitute 'exceptional circumstances' in this context. The variety of circumstances which might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose. It is sufficient to say that in this case no exceptional circumstances have been made out.
As to additional evidence being tendered on an appeal, each case must turn on its own particular circumstances. Having regard to the history of the matter from its inception in the Magistrates Court in 2012, the pleadings as constituted by the statements of claim and defence filed by the parties in the Magistrates Court, the issues as they were crystalized for the trial in the Magistrates Court, the content of the proposed additional evidence, the substantial delay, the findings and reasons by the learned magistrate in the primary decision, and finally, the issues raised by the grounds of appeal, I am not persuaded that leave should be granted to admit the two additional affidavits. Other matters also borne in mind include the fact that the parties have had the benefit of legal representation at all times and that the purported affidavit of Mr Greville is not, in any event, in admissible form.
I ruled on this issue as a preliminary matter during the hearing of the appeal. After hearing the parties' submissions at the time, it seemed to me that the purpose of Mr Greville's additional proposed evidence and the evidence of Mr Redden was to provide a further factual evidentiary foundation which was not available, or not at least made available or presented, to the magistrate at the time of the trial.
At the time I made my ruling I considered that the proposed evidence potentially went to the substantive issues between the parties on the appeal, in a way that there may be identifiable prejudice to Mr Jansen. Having regard to delay and the history of the matter generally, and bearing in mind of course that Mr Jansen did not admit Mr Greville occupied the Property and now contends that the trial was fought on the issue of ownership, it seems to me that this additional material might change the nature of the basis of Mr Greville's claim in the Magistrates Court for loss and damage. Issues of procedural fairness are at play.
For these reasons, I am not persuaded that there are exceptional circumstances which would warrant the grant of leave pursuant to s 40(5) MCCPA to admit the proposed additional evidence and materials as evidence in this appeal.
Further, by way of addendum, it seems even after the provision of supplementary written submissions by the parties after the hearing of the appeal, some of the proposed evidentiary material if it had been received in the appeal, would have been relied upon by Mr Greville to meet the appeal on another ground, which was not raised below, by seeking to invoke the 'jus tertii' principle.
Chubb Insurance Company of Australia Limited is an interested non‑party
Pursuant to O 9A of the Rules of the Supreme Court (1971) (WA) the solicitors for Mr Greville and Zenith Trust informed the court by letter dated 23 November 2020 that Chubb Insurance Company of Australia Limited (Chubb) is an interested non-party.
As mentioned, Mr Reddan's proposed affidavit of further evidence (which is not admitted for the purpose of the appeal) deposes that Chubb Insurance Australia Limited was the insurer of the Property on 18 September 2008.
Mr Greville in his statement of intended evidence which was admitted by consent at the trial without the need for him to attend (exhibit 1) contains evidence that after the incident he lodged a claim with his insurer 'Chubb Insurance'. Exhibit 4 contains a number of invoices, some of which are addressed to 'Chubb Insurance Co of Australia Ltd'.
There is no evidence as to the nature of the relationship between Chubb Insurance and Chubb, or whether they are the same company as a result of a name change.
In any event, I understand it is accepted by Mr Jansen for the purpose of the appeal that the interested party is the insurer who at the relevant time met the costs of the repairs to the Property as a result of his alleged negligence.
Mr Greville's claim in nuisance
On 20 August 2018, Mr Greville filed an Amended Statement of General Procedure Claim in the Magistrates Court. This was some years after Mr Jansen had filed a Statement of Defence on 9 June 2016 which did not admit that Mr Greville was the owner of the Property. It is not known if the amended statement was filed to include a claim in nuisance because it was appreciated at the time that Mr Greville was not the owner of the Property.
Mr Greville's claim was amended to insert par 15A which pleaded:
15AFurther and in the alternative, the Claimant at all times had a common law right to the preservation of support provided to the premises by the Defendant's land, which right was impinged by the Defendant withdrawing the support, resulting in unreasonable interference with the Claimant's premises, and the Claimant's enjoyment thereof.
The primary decision set out the issues to be determined and [47] stated the following issue:
Whether the defendant is liable to the claimant in nuisance.
Thereafter the learned magistrate in his reasons for decision dealt with the evidence and the issues solely on the basis that he was considering the negligence claim. Having made findings in this regard he then stated at [243]:
The Claimant contends an entitlement to damages in nuisance for removal of the lateral support to land which has resulted in the collapse of the carport structure and the movement of soil from 19 to 19A. The Claimant relies on the same factual information as above to submit the conclusion that the common law right to the preservation of support has been impinged. Given my findings, this issue does not need to be determined.
Again, as can be seen from the above there is no apparent appreciation by the learned magistrate that there is any relevant distinction between Mr Greville and Zenith Trust. In fairness this may be in part because of the way Mr Greville pleaded his claim on the basis that he was the owner of the Property. In any event, there is no considered finding of fact that Mr Greville was the owner or occupier at the relevant time, or what the duty of care in negligence or duty in nuisance was that may have been breached by Mr Jansen and if so, the proper measure of damages.
The relevant background facts and circumstances
Much of the evidence in the Magistrates Court and the procedural history of the action itself is not in dispute. Relevant facts and matters for the determination of this appeal include the following matters which provide the context and background circumstances for the dispute.
The Greville 1984 Trust was established on 10 February 1984. Mr Greville is a beneficiary of the Trust. It is not known if there are any other beneficiaries of the Trust.
On 9 August 2001, a Channel Islands company, Zenith Trust Company Limited (the second respondent) was the trustee of the Trust. On this date Zenith Trust purchased the Property, as trustee of the Trust, and accordingly on registration became the legal owner of the Property. The Certificate of Title for the Property records that on 9 August 2001 Zenith Trust became the registered owner of the Property.
On 1 April 2004, Zenith Trust resigned as trustee of the Trust in favour of a Gibraltar based company, North Atlantic Trust Company Limited (this was about four and half years before the incident involving the Property on 18 September 2008). Accordingly, from 1 April 2004 onwards Zenith Trust was not the owner of the Property on behalf of the Trust for present purposes, even though Zenith Trust remained the registered proprietor of the Property until 29 September 2010.
On 29 September 2010, two years after the incident on 18 September 2008 which is the subject of this appeal, the Certificate of Title for the Property was amended to record the fact that North Atlantic is the legal entity holding the Property in trust for the Trust.
At all material times Mr Greville was a beneficiary of the Trust although it is not known on the evidence if he was the controlling mind or, as mentioned, the only beneficiary. I infer Mr Greville was aware at all times that Zenith Trust was not the owner of the Property at the relevant time on 18 September 2008 in its capacity as trustee of the Trust because it ceased that relationship at least four years earlier. This fact was also known to Mr Greville's lawyers by at least 25 May 2017, the date Mr Greville signed his statement of intended evidence in the action.
The proceedings were commenced in the Magistrates Court on 18 September 2012, by which time the Certificate of Title for the Property had reflected for about two years that North Atlantic was the registered proprietor (since 29 September 2010).
In the premises, it is likely the lawyers for Mr Greville when they commenced the claim in the Magistrates Court relied on the Certificate of Title for the Property to infer that Zenith Trust was the owner on 18 September 2008, when in fact reasonable inquiry with their client would have disclosed the true position. As a result I assume there was limited, if any, consultation with Mr Greville at the time when the legal proceedings were commenced in the Magistrates Court.
By the time the question of legal ownership became a real issue in the action the true position was known and it is unclear why the joinder of North Atlantic was not sought instead of Zenith Trust. An inference is that Mr Greville's lawyers considered the Certificate of Title was conclusive of the matter - that might be true for third parties but in this case the knowledge was within the province of Mr Greville, the person on whose behalf the legal action was instituted. Presumably it would also have been a material matter for the insurer.
In any event, the proceedings were commenced against Mr Jansen in the Magistrates Court by a General Procedure Claim which described Mr Greville's claim as follows:
The Claimant's claim is for damages resulting from the Defendant's negligent excavation work on a neighbouring property on or around 17 September 2008 which caused the collapse of the Claimant's retaining wall and carport full particulars of which have been rendered, together with interest at the rate of 6% pursuant to s 12 Magistrates Court (Civil Proceedings) Act 2014 from 17 September 2008, until payment of judgment and costs.
The description of Mr Greville's claim when first received by Mr Jansen claimed that Mr Greville was the owner of the carport and retaining wall. A Form 15 response was filed on behalf of Mr Jansen on 4 October 2012 indicating his intention to defend the full amount of the claim.
On 12 April 2016, Mr Greville filed a statement of General Procedure Claim. Paragraph 1 pleaded:
At all material times the Claimant was the owner of premises located at 19 Walter Street, Claremont ('the Premises') in the State of Western Australia.
Relevantly, par 14 pleaded that:
At all material times the Defendant owed a duty of care to the Claimant to exercise reasonable care in carrying out the Work to avoid the risk of damage to the Premises.
Accordingly, at this stage Mr Greville's claim against Mr Jansen was based on his alleged ownership of the Property and solely on Mr Jansen's alleged negligence.
On 9 June 2016, Mr Jansen filed a statement of defence. Paragraph 1 in response to Mr Greville's claim that he was 'the owner' of the Property pleaded to by general traverse:
The defendant does not know, and can neither admit or deny the facts contained in paragraph 1 of the claimant's statement of defence (sic)'.
Mr Jansen denied the alleged duty of care in par 14 of the statement of claim and expressly pleaded that he did not owe a duty a care to Mr Greville and had no legal relationship with him.
On 20 August 2018, Mr Greville filed an amended statement of claim which included the insertion of par 15A which pleaded:
Further and in the alternative, the Claimant at all times had a common law right to the preservation of support provided to the premises by the Defendant's land, which right was impinged by the Defendant by withdrawing the support resulting in unreasonable interference with the Claimant's premises and the Claimant's enjoyment thereof.
The obvious difficulty with this contention is that Mr Jansen is not, and never was, the owner of 19A. Putting this shortcoming to one side, the new allegation was treated as a claim in nuisance. Unfortunately, this claim was not determined by the learned magistrate because he found liability against Mr Jansen in negligence. In my view, this aspect of Mr Greville's claim may need to be, subject to further submissions from the parties, remitted back to the Magistrates Court for determination. Obviously the distinction between owner and occupier of the Property is the relevant consideration. It is noteworthy that the measure of damages for this claim is pleaded to be the same as for the alleged breach of duty in negligence.
In due course an amended statement of defence was filed by Mr Jansen in the same terms but amended to include a denial of each and every allegation contained in Mr Greville's new par 15A.
On 20 August 2018, Mr Greville's lawyers filed an amended listing conference memorandum. This document was amended to include a statement of fact in issue as to whether Mr Jansen is liable to Mr Greville in nuisance, bearing in mind that at this time Mr Greville is still contending he is the owner of the Property. The statements of legal issues required to be determined at the trial included whether Mr Jansen owed Mr Greville a duty of care, and if so, whether he was negligent. The memorandum also identifies, consistent with the evidence at trial, that the substantial issue required to be determined was whether Mr Jansen's works in fact 'caused [Mr Greville's] carport to collapse, and if so the cost of repairs'.
A written outline of submissions was provided to Mr Greville's lawyers during the weekend before the commencement of the trial and handed up to the learned magistrate on the first day of the hearing on 15 October 2018. These submissions contend Mr Jensen's conduct did not cause the collapse of the carport and says the true cause was the inadequate construction of the carport 'resulting in a surcharge load onto the adjoining property' (19A). As a result, causation for the collapse of the carport and wall was the substantive issue at trial.
Mr Jansen's outline of written submissions contended there was, irrespective of the factual issues concerning responsibility for what occurred, a 'fundamental problem' which required Mr Greville's claim to be dismissed in any event.
14.The owner of the property is the registered proprietor under the Transfer of Land Act 1893, which provides for a system of title by registration, not registration of title.1 That owner is the trustee, not the Claimant. With no trust deed in discovery or in evidence, the Claimant cannot even establish there is a trust, but even if he could, it cannot assist him as the claim is not brought by the trustee and any claim for damage to its property could only be brought by the trustee, not by a beneficiary.
15.The Claimant lodged a claim with Chubb Insurance in relation to the carport. Chubb Insurance now seeks to claim amounts it says it paid in relation to 19 Walter Street, by way of subrogation of Mr Grenville's (sic) rights. Although no right of subrogation is pleaded and no insurance policy was included in the discovery, nor the evidence.
16.In circumstances where the only evidence is that Mr Greville paid an excess of $250, any loss he may have suffered is limited to that expense, however, any claim by way of subrogation for damage to the property would have to be brought to the claim of the owner, who is the trustee of the Greville 1984 Trust, not by Mr Greville.
17.As the claim is not brought by the owner, either itself or by way of subrogation there is no sustainable claim before the Court.
FN1: Breskvar v Wall (1971) 126 CLR 376; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 [98].
It must be observed when making his opening remarks to the learned magistrate, Mr Greville's counsel was not appraised of the issue of standing as set out by Mr Jansen in the written outline of submissions. This may explain why Mr Greville's counsel referred to the Property as 'the claimant's property' (ts 5, ts 14). At ts 6 Mr Greville's counsel described 'the plaintiff's claim is for the cost of rebuilding and reinstating'.
Mr Greville's claim was heard by the learned magistrate on 15, 16 and 17 October 2018. Most of the evidence involved expert opinion as to the cause of the carport collapse, the adequacy of the carport and surrounding structures and the cost of reasonable repairs to reinstate the carport and associated brick wall.
At the conclusion of Mr Greville's case, the learned magistrate enquired whether there was any issue as to the name of the registered owner of the Property. Although counsel for Mr Greville was unsure whether there would be an issue, counsel for Mr Jansen referred to the written submissions and described the issue as a 'fundamental flaw in the claim'. The concern expressed was that Mr Greville did not own the Property. Mr Jansen's counsel maintained even if Mr Greville was a beneficiary under the Trust, it did not entitle him to claim for damage caused to the Property which he did not own.
It was also expressly noted that Mr Greville's claim was not pleaded as a subrogation right. The response of Mr Greville's counsel was 'if there is likely to be any difficulty I would seek leave to amend the claimant to the registered proprietor'. At the same time, he submitted that it had been clear to Mr Jansen at all times that Mr Greville's claim was a subrogated claim (ts 139).
After some discussion the issue was put to one side so Mr Greville could complete his evidence and close his case subject to having a right to apply to amend at a later stage. To this point in the trial Mr Greville's case had been run on the basis that he was the owner of the Property.
It must also be observed that the learned magistrate referred to the adversarial nature of litigation and expressed the view that he did not know at that point in time if there was any substance in Mr Jansen's contention.
On 17 October 2018, at the conclusion of the evidence and close of Mr Jansen's case, counsel for Mr Greville informed the court that he had been instructed to apply to add Zenith Trust as a claimant to the proceedings 'simply to tie up both beneficial and legal interests' (ts 273). It was agreed by the court and the parties that the oral application would be the subject of written submissions and a final determination by the learned magistrate as part of his judgment.
On 15 November 2018, Mr Greville filed an outline of closing submissions. Under the heading 'The Parties', it was submitted that Mr Greville 'was the beneficial owner and occupier' of the Property. However, under the heading 'Claimant's Summary of Facts Relevant to the Claim' it was submitted that 'the claimant was the owner of the' Property. The submissions assert that Mr Greville was owed a duty of care by Mr Jansen, such that Mr Jansen was required 'to exercise reasonable care in carrying out excavation work to avoid the risk of damage to the premises' (emphasis added).
Under the heading 'Liability', Mr Greville submitted in his written submissions that 'both the owner and occupier of residential premises are entitled to sue for negligence and nuisance. See Fleming Law of Torts 8th ed at 426'. This submission may have misled the learned magistrate to not make any finding with respect to Mr Greville's claim in nuisance. The passage relied upon is concerned with 'title to sue' for nuisance and does not apply to a claim in negligence. The submission goes on at par 41 to say that the claim for repair costs to the carport is a subrogated claim 'by the claimant's insurer'. The evidence suggests that Mr Greville (who was not the owner) held a policy of insurance with Chubb Insurance which caused and paid for the repairs to reinstate the Property.
Mr Greville also filed separate submissions in support of the oral application made during the trial to add the registered proprietor of the Property as a claimant to the action.
Paragraph 5 of these submissions asserts Mr Greville 'was living at the premises' at the relevant time. Mr Greville's witness statement does not admit to this factual contention. In his statement at par 14 he does say 'several days later in September 2008 I discovered that the masonry wall had collapsed and that a large part of the carport had also collapsed'. An inference may have been open on the totality of the evidence that Mr Greville was living at, and therefore an occupier of the Property at the relevant time. This is not a finding the appeal court can, or should make, for present purposes, having regard to the history of the litigation and the issues on appeal.
Mr Greville's submissions to add a party explained that the proposed joinder of Zenith Trust was to ensure that all parties whose rights are to be affected by the decision were bound by the decision. In further support of the application, it is noteworthy that it was submitted on behalf of Mr Greville:
7.While the occupier of the Property is clearly affected by the loss of amenity of the Property caused by his inability to use the carport for an extended period the legal owner also has an interest in reinstatement of the damaged carport.
On this basis it was submitted by Mr Greville that it was appropriate for 'both the occupier and owner of the premises' to be parties to the action.
On 31 December 2018, Mr Jansen filed an outline of closing submissions. Under the heading 'The Claimant/Proper Plaintiff' it is contended at par 49 that Mr Greville could not succeed because:
… the claim is not brought by the trustee and any claim for damage to its property could only be brought by the trustee, not by a beneficiary.
On behalf of Mr Jansen it was further stated that there is no evidence of the trust deed, its terms, who the beneficiaries are and that the court is not permitted to fill in gaps in the evidence. Based on the evidence that Mr Greville paid an excess of $250, the appellant contends that:[1]
Any loss he may have suffered is limited to that expense, however, any claim by way of subrogation for damage to the Property would have to be brought in relation to the claim of the owner, not by the claimant.
[1] Appellant's outline of closing submissions filed 31 December 2018, par 53.
Accordingly, it was submitted by Mr Jansen in the Magistrates Court proceedings that there is no sustainable claim before the court for the cost of reinstatement or repairs.
Mr Greville filed submissions in reply dated 31 January 2019 contending that 'there can be no doubt that the claimant's occupancy of the premises is sufficient to ground a claim in both negligence and nuisance'. This was a reference to Mr Greville only.
These submissions, maintained Mr Greville's adopted position, that 'the legal ownership of the property entitles the registered proprietor Zenith to recover damages in negligence and nuisance'. The difficulty with this proposition is that Zenith Trust was no longer trustee of the Trust and was not the beneficial owner of the Property.
As I understand it, it is common ground that Mr Jansen did owe the occupier and owner of the Property a duty of care in negligence, but it is not accepted that the scope of the duty is identical or that the appropriate measure of damages is the same. In other words the occupier would be entitled to damages for loss of amenity and the opportunity to use the carport, whereas the owner would be entitled to damages for reinstatement for the physical loss caused to the Property.
Ground 1 of the appeal notice: ownership of the Property
The first ground of appeal contends that the learned magistrate erred in fact and law in finding the first respondent, Mr Greville, was the owner of the Property on 18 September 2008, or if not the owner, that he was the occupier of the Property. The ground of appeal is particularised as follows:
GROUND 1: OWNERSHIP OF THE PREMISES
1.The Magistrate erred by finding as a matter of fact that the First Respondent was the owner of the premises and also that such fact was not in dispute, when:
(i)the evidence before the Magistrate was that the First Respondent was not the owner; and
(ii)the Appellant/Defendant pleaded that he did not admit that the First Respondent was the owner; and
(iii)the submissions made on behalf of the Appellant/Defendant expressly provided that the First Respondent was not the owner; and
(iv)such fact was contrary to his decision to join the Second Respondent on the basis that it was the owner.
2.The Magistrate erred in fact and law by approaching his consideration of and finding on the First Respondents entitlement to damages, on the basis that he was the owner of the premises, or if not the owner then by reason of him having some association with the owner, he should nevertheless be regarded as the owner, when as a matter of fact, he was the occupier.
Disposition of the ownership of the Property ground of appeal
Under the heading 'Background Facts' the learned magistrate at [4] says:
The following Background Facts are drawn from the parties pleadings, submissions and evidence and are not in dispute and are therefore findings of fact'.
With the benefit of hindsight the first finding of fact set out in [5] constitutes, with respect, a fundamental misunderstanding of the evidence and the issues and gives rise to a material error of fact which is the cornerstone of the judgment. At all times Mr Jansen put in issue the basis of Mr Greville's claim as 'owner' and contested he was the 'owner' of the Property.
The first finding of fact stated by the learned magistrate which he said was not in dispute at [5] provides:
The Claimant was the owner of 19 Walter Street, Claremont ('the Premises').
This apparently non‑contentious fact as asserted by the learned magistrate is clearly, with respect, wrong and contrary to the evidence adduced during the trial. Mr Greville has never been the 'owner' of the Property. The evidence at its highest may admit, to a finding by inference that he had a beneficial interest by reason of the ownership of the Property by North Atlantic as trustee for the Trust at the relevant time, but this does not as a matter of law constitute legal ownership.
The evidence may also admit to a possible finding of fact, based on Mr Greville's admitted statement of intended evidence at the trial, that he was an 'occupier' of the Property at the material time. There is, in any event, no express finding of fact that Mr Greville was an 'occupier' of the Property at the relevant time, as opposed to being a mere 'occupier' by reason only, of a finding that he was the beneficiary of 'a trust': see [42] of the primary decision. Even if there was a proper finding of fact that Mr Greville was in fact an actual 'occupier' of the Property at the relevant time, this just goes to underline the failure of the learned magistrate to appreciate the importance of the potentially different basis of the duty of care owed by a tortfeasor to an owner, as opposed to an occupier.
The evidence does admit to a finding of fact that Mr Greville caused the Property to be insured with Chubb Insurance and that Chubb Insurance incurred the cost of repairs to reinstate the carport and wall: see [244] of the primary decision.
As mentioned, with respect, the learned magistrate appears to have conflated Mr Greville and Zenith Trust as a single entity and arrived at his judgment on the basis there is no distinction in law between them, and that they can for all intents and purposes be regarded in some way as 'the owner' of the Property.
In my view, it is understandable why the learned magistrate may have approached his legal analysis of the causes of action relied upon by Mr Greville in this way. Mr Greville pleaded his claim as the owner of the Property, the written submissions and conduct by counsel for Mr Greville in relation to the evidence and issues at trial was all on the basis that Mr Greville was 'the owner'.
The contrary assertion by Mr Jansen is contained in the pleadings and accordingly Mr Greville was put to proof of the factual contention that he was the 'owner' of the Property. Further, and in any event, the matter was put in written submissions prior to the commencement of the trial before the magistrate (accepting of course that it appears two days was set aside for the trial and the substantive evidence in relation to liability resulted in the trial going into a third day).
The conflation of the separate legal identities of the claimants as owner and occupier of the Property by the learned magistrate infects every part of the core reasoning contained in the primary decision. For example, this can be seen starkly in [257] which is part of the 'concluding determination':
257Based upon my findings of fact and determinations and preference for the expert evidence lead by the Claimants, I am satisfied on the balance of probabilities that the Defendant owed a duty of care to the Claimants; the duty of care was breached by the Defendant; the actions of the Defendant were negligent and caused the damage (or harm) to the Claimant by the collapse of the carport and is therefore liable to pay damages to the Claimant.
Further in [258] and [259] of the primary decision, I infer only refer to Mr Greville by reason of the learned magistrate's reasoning. This view is supported by the terms of the judgment order which appears to have been entered in favour of Mr Greville only, and as I understand it only Mr Greville (through his insurers) has sought to enforce the judgment obtained in his favour. As far as I understand it Zenith Trust has no interest (if it still exists as a legal entity) in the proceedings or the appeal.
Unfortunately, by reason of the failure to distinguish on the evidence whether Mr Greville is the owner or the occupier, or both, the result is that there is no proper analysis of the nature or extent of the legal duty owed by Mr Jansen to Mr Greville or Zenith Trust, or the proper measure of the damages which might be awarded, depending on the scope of the duty of care.
This issue is fundamental to the elements which give rise to a cause of action in negligence and also nuisance. For example, the duty of care owed to an occupier in negligence may be limited, as Mr Greville in his written submissions appears to accept, to loss of amenity or opportunity as opposed to the cost of reinstatement if the occupier is not also the owner who has legal title in the damaged property. The right to claim in nuisance as an occupier and owner is also circumscribed by the law (and may enable Mr Greville, through his insurers to maintain a subrogated right of claim for the cost of repairs, but this is moot).
In my view, with respect, the learned magistrate made an error of fact by purporting to find that Mr Greville was the owner of the property when he was not, and any such finding was not in any event open on the evidence.
This factual error is a fundamental plank to the learned magistrate's reasoning and as a result the judgment entered against Mr Jansen which is based on this reasoning.
I will hear the parties as to whether the matter should be remitted to the learned magistrate who heard the evidence to make proper findings of fact and law as to the right, if any, of Mr Greville and Zenith Trust to a judgment and if so the quantum of damages payable (which may, or may not, depending on the scope of the duty of care be the same as the cost of repairs to the Property). In addition, the learned magistrate should be asked to consider Mr Greville's claim in nuisance against Mr Jansen and to make a decision in this regard. Alternatively, the matter could be remitted on the basis it is to be determined by a different magistrate but in accordance with the primary decision so far as causation for the damage is concerned.
It follows from the above that I am of the view that the matter needs to be remitted to the Magistrates Court, even though the reason for this does not arise out of the learned magistrate's findings with respect to the issue of fault by Mr Jansen. This appeal does not go to those findings but is only concerned with Mr Greville's right, if any, to an award of damages for the amount assessed as the cost of repairs to reinstate the Property.
I will, as mentioned, hear the parties further as to the proper disposition of the appeal.
Ground 2 of the appeal notice; joinder of Zenith Trust
The appeal notice provides ground 2 as follows:
GROUND 2: JOINDER
In relation to the joinder, the Magistrate made errors of law when, in the course of the trial, he made an Order, on the oral application of the First Respondent, joining the Second Respondent as a claimant in the proceedings when:
(a)He had no statutory or other power to make such an order whether pursuant to any of:
(i)sections 13 to 16 inclusive of the Magistrates Court (Civil Proceedings) Act 2004;
(ii)the Magistrates Court (Civil Procedure) Rules;
(iii)O 18 r 4 of the Supreme Court Rules;
(iv)the inherent jurisdiction of the Court;
or otherwise;
(b)Or alternatively, if he had a power to make such an order, the power was discretionary and should not have been exercised, in all the circumstances, at all;
(i)when no useful purpose would be served because the statutory limitation period had expired in respect of the Appellants liability (if any) to the Second Respondent;
(ii)when it was not open to apply nunc pro tunc at all to any order for joinder and when the parties were given no opportunity to be heard on when the joinder was to have effect;
(iii)when the Second Respondent was not the trustee company in relation to the premises at the time of the collapse and so was not the appropriate party to join;
(iv)when the First Respondent as the occupier of the premises, had no insurable interest in the property of the premises and so no right to the payment of the costs of repairs to the carport. The First Respondents insurer therefore had no enforceable subrogation rights against the Appellant for repayment of such costs or if he did the legal basis for such right was never established by any admissible evidence;
(v)when the legal basis of the subrogated claim made or purportedly made by the insurer in relation to the Second Respondent as the owner of the premises, had not been established by any or any admissible evidence;
(vi)when any joinder of the owner, in circumstances where the trial had already commenced, would cause obvious material prejudice to the Appellant and would be a breach of the Magistrates statutory duty to ensure that cases are dealt with justly (section 13 Magistrates Court (Civil Proceedings) Act 2004);
(c)If the Magistrate did have any such discretion as provided in paragraph (b) then he should not have exercised it without the trial being adjourned and with orders being made to include that the Second Respondent file its particulars of claim, that the Appellant file his particulars of any defence, and that the claims be case managed.
Disposition in relation to the joinder issue of Zenith Trust
In my view, based on the evidence adduced at trial, Zenith Trust was not the owner of the Property on 18 September 2008. North Atlantic was as it was the trustee of the Trust, and the evidence suggests that at all material times the Property was trust property.
Further, as counsel for Mr Jansen submitted, Zenith Trust did not benefit from Chubb Insurance's payment of the reinstatement cost of repairs. There is in any event no subrogated right that the insurer can exercise in the name of Zenith Trust because Zenith Trust was not the owner of the Property. Accordingly, it is submitted that there was no useful purpose in joining Zenith Trust as a party. As mentioned, it is not known if Zenith Trust existed as a legal entity at the relevant time, let alone whether it had any knowledge of the application for its joinder; see O 18 r 4 Rules of the Supreme Court.
At [42] of the reasons for decision the learned magistrate found that he was satisfied it was appropriate to add Zenith Trust as a claimant to the proceedings on the basis that:
There is no material prejudice to the Defendant at all, in my view. The trial was conducted substantively on pleadings which were not influenced, to any material degree, by the issues related to the named parties. The defendant remained throughout the trial as the sole defendant.
The learned magistrate also went on to find that he was satisfied that Mr Greville was the beneficiary of a trust and in that capacity 'occupied' the Property.
However, as mentioned, the learned magistrate does not appear to have approached the issue of Mr Jansen's alleged negligence through the lens of either respondent and instead has simply determined the matter on the basis that 'the Claimant was the owner of the Property'.
Counsel for Mr Jansen maintained in oral submissions on the appeal that Mr Jansen did not 'come to court to answer' a case that Mr Greville was an occupier and therefore entitled to damages. It is submitted that the case against Mr Jansen was pleaded and the submissions filed on behalf of Mr Greville were all based on the proposition that he was the owner of the Property and not on the basis that he was a mere occupier.
Mr Jansen does not accept there was no prejudice because it is submitted the issue of the proper party was joined on the pleadings and also raised in written submissions at the commencement of the trial.
Mr Jansen also contends that by reason of the Limitation Act he has lost the opportunity to call in aid the limitation period against Zenith Trust if it is permitted to be joined as a party to Mr Greville's claim. The submission made was that by reason of the limitation defence there is no practical utility in joining Zenith Trust as a claimant: see Silkline Investments Pty Ltd v Challenge Ltd (Unreported, WASC, Library No 980610, 22 October 1998).
On hearing the appeal, it is apparent that the insurer's claim is the subrogated right sought to be enforced against Mr Jansen - if there is a cause of action that it can be attached to. The evidence is that the subrogated right arises as a result of insurance cover obtained by Mr Greville, and not Zenith Trust.
Therefore, putting aside the issue of the proper status of Zenith Trust and whether or not it is in fact the owner of the Property as opposed to North Atlantic, it is arguable that the learned magistrate erred in fact and in law and in the exercise of his discretion to join Zenith Trust as a second claimant.
The result of doing so has the potential to change the judgment because there needs to be a determination of the duty owed, in including the nature and extent of the duty owed by Mr Jansen to Mr Greville as occupier of the Property (as opposed to owner). This legal analysis has not been done and accordingly was not determined in the proceedings below.
Again, in my view, it is not appropriate that such substantive factual and legal issues should be determined on the hearing of this appeal.
Ground 3 of the appeal notice: the form of the judgment
This ground of appeal is concerned with the form of the judgment dated 25 August 2020 which purports to enter judgment for 'the Claimant' in the amount of $44,079.70. The difficulty arises over the fact that there are two claimants and the reasons for decision do not seek to apportion or distinguish between each of them insofar as the damages award is concerned, and more importantly to identify which claimant is entitled to the benefit of the judgment.
The notice of appeal in respect of this ground provides as follows:
GROUND 3: JUDGMENT
In determining the matter, the Magistrate made errors of law in his Judgment by:
(a)Failing to properly identify the material issues of fact and law, including:
(i)the respective rights and liabilities of the parties given that one claimant was the occupier and the other claimant was purportedly, the owner of the relevant premises;
(ii)the limitations of a subrogated claim;
(iii)the relevant limitation period applicable to each claim;
(iv)ownership of the relevant premises;
(b)Failing to include any reasons why and then properly finding what damages (if any) each of the First Respondent and the Second Respondent, respectively, was entitled to, given that the First Respondent was the occupier of the premises and that the Second Respondent was the owner of the premises; and
(c)Erroneously proceeding on the basis that the entitlement to damages for each and both of the First Respondent and the Second Respondent, respectively, was the same;
(d)Further to paragraph (c), failing to properly find that the First Respondents entitlement to damages was on the basis that he was the occupier and not the owner and that therefore he had no entitlement to damages measured by the costs of repairs to the carport as claimed but rather, his entitlement to damages was limited to any loss of amenity for not being able to enjoy the use of the premises with a carport for any meaningful length of time, which was not claimed;
(e)failing to find that the:
(i)time within which the Second Respondent, as the owner or purported owner of the premises, could make a claim against the Appellant for damages measured by the costs of the repairs to the carport, had expired; and
(ii)insurer had no right by subrogation, to make any claim in relation to the Second Respondent;
(f)Awarding interest against the Appellant;
(g)Failing to dismiss both claims;
(h)Failing to award costs to the Appellant.
Disposition in relation to the form of the judgment
The fundamental objection to the form of the judgment order is that it refers to 'the Claimant' in the singular. As mentioned, the primary decision conflates Mr Greville and Zenith Trust into a single entity and consequently there is no analysis of the standing of each party to maintain their claim, and on what basis.
As a result, in my view, the form of the judgment is ambiguous as to which party is entitled to the benefit of the judgment. The answer to the question is not found in the primary decision because as mentioned there is a material factual error which underpins the whole judgment, namely at [5] to the effect that Mr Greville was the owner of the Property (when he was not).
The disposition of this ground of appeal is to be found in the reasons above which concern all the grounds of appeal. The error in the form of the judgment order and the primary decision itself cannot be cured on appeal.
Conclusion
In my view, for the reasons set out above, the appeal should be allowed on the grounds that the learned magistrate has conflated the evidence as to ownership and occupation of the Property. The relevant time in this regard is the date when the Property was damaged by the works being undertaken by Mr Jansen on the neighbouring property.
The failure of the learned magistrate to make findings of fact as to which party, if any, was the actual owner or in actual occupation of the Property at the material time is fundamental to any legal analysis of whether Mr Jansen breached a duty of care in negligence or nuisance, and if so, to whom. It also informs the nature of the duty owed and the proper assessment of damages.
There is legal and factual complexity arising out of the fact that when Zenith Trust was joined as a claimant (part way through the trial in the Magistrates Court on the basis it was the owner of the Property), it had not been trustee of the Greville 1984 Trust since 1 April 2004. This is more than four years before the relevant date (18 September 2008). There is no evidence if Zenith Trust still exists as a legal entity. The question then arises as to whether North Atlantic was the beneficial and legal owner of the Property at the material time. If so, then arguably the wrong party was joined as the 'owner' of the Property.
However, what is known is that Mr Greville was not the owner of the Property which, of course, is the basis upon which judgment was entered in the Magistrates Court. This material error of fact undermines the entire legal basis of the judgment obtained by Mr Greville. For this reason the judgement must be set aside.
I will hear the parties further as to what orders should be made in the appeal and what should be done, if anything, with Mr Greville's claim in the Magistrates Court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MD
Associate to Judge Stevenson
18 JUNE 2021
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