Jansen v Greville [No 2] - [2021] WADC 60

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…

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 Jansen v Greville [No 2]

Details

AGLC: Jansen v Greville [No 2] [2021] WADC 60
Case: [2021] WADC 60
Decision Date: 18 JUNE 2021

CaseChat Overview and Summary

The appeal arose from a decision of the Magistrates Court in a claim for damages for nuisance and negligence. Jansen, the appellant, brought an action against Greville, the respondent, alleging that building works conducted on Greville's property had caused damage to Jansen's adjoining property. The primary issues in the appeal were whether the Magistrates Court had made any discernible error of fact or law, wrongly exercised its discretion, or whether the joinder of parties was appropriate. Further, the appeal addressed whether the court was correct to dismiss the claim due to the limitation of actions and whether the wrong party was sued.

The appeal court considered whether the Magistrates Court erred in dismissing Jansen's claim on the basis that the wrong party was sued. The court found that there was no evidence to suggest that Greville was not the party responsible for the building works causing the damage. Furthermore, the court examined whether the claim was statute-barred due to the limitation of actions. The court found that the limitation period had expired, and as such, the claim was statute-barred. Additionally, the court assessed whether the Magistrates Court had wrongly exercised its discretion in not joining a third party to the proceedings. The appeal court found that there was no requirement to join a third party as the evidence did not suggest their involvement.

The appeal was dismissed. The court held that the Magistrates Court did not make any discernible error of fact or law and correctly exercised its discretion in dismissing the claim. The court found that the claim was statute-barred and that there was no requirement to join a third party. The appeal court found that the decision of the Magistrates Court was correct and that there was no need to join additional parties or revisit the limitation of actions. As a result, Jansen's appeal was dismissed, and the decision of the Magistrates Court was upheld.

Orders