Jansen v Greville [No 3] - [2021] WADC 103

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   JANSEN -v- GREVILLE [No 3] [2021] WADC 103
CORAM:   STEVENSON DCJ
HEARD:   10 AUGUST & WRITTEN SUBMISSIONS ON 24 SEPTEMBER, 8 & 12 OCTOBER 2021
DELIVERED          :   28 OCTOBER 2021
FILE NO/S:   APP 71 of 2020
BETWEEN:   JAN JANSEN
Appellant
AND
GUY DAVID GREVILLE
First Respondent
ZENITH TRUST CO LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WALTON
File Number            :   GCLM 14740 of 2012

Catchwords:

Appeal - Magistrates Court - General procedure claim - Negligence - Nuisance - Issue whether building works caused damage to adjoining property - Claimant not the owner - Wrong party - Costs in the Magistrates Court proceedings when appeal upheld

Legislation:

District Court Rules 2005 (WA), r 59(1)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 25, s 25(2), s 43(7)(b), s 43(7)(e)

Result:

Non-party ordered to pay appellant's costs of the appeal and in the Magistrates Court proceedings

Representation:

Counsel:

Appellant	:	Mr M J McCusker QC & Mr P V Lansell
First Respondent	:	Mr J R Criddle
Second Respondent	:	Mr J R Criddle

Solicitors:

Appellant	:	Lansell Legal
First Respondent	:	McCabe Curwood
Second Respondent	:	McCabe Curwood

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

Australian Securities Commission v Aust-Home Investments Ltd (1993) 116 ALR 523
City of Fremantle v Imago Holdings Pty Ltd [2019] WASC 127
City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61 (S)
Harold v Smith (1860) 5 H & N 381
Jansen v Greville [No 2] [2021] WADC 60
Oshlack v Richmond River Council (1998) 193 CLR 72

STEVENSON DCJ:

Introduction

On 18 June 2021, I published reasons for decision allowing Mr Jansen's appeal: Jansen v Greville[No 2] [2021] WADC 60 (the appeal judgment).
On 10 September 2021, after the parties had filed further written submissions, I heard submissions from counsel as to the appropriate orders consequent on the appeal judgment. At that time, the following six issues were extant:
(a)whether the matter should be remitted back to the Magistrates Court, and if so, on what basis;
(b)Mr Jansen's application for a suspension order dated 18 November 2020 and associated appeal dated 18 February 2021;
(c)what costs orders should be made in respect of the proceedings in the Magistrates Court;
(d)what costs orders should be made in respect of the costs of the appeal, and Mr Jansen's application for indemnity costs;
(e)whether a costs order should be made against a non-party, and not the respondents to the appeal; and
(f)the costs of the hearing on 10 September 2021.
On 10 September 2021, I delivered oral reasons for decision on the above issues, but leaving open, at the request of the appellant's senior counsel, the issue of what orders should be made in relation to the costs of the proceedings in the Magistrates Court.
In summary, I determined, subject to making final orders:
(a)it is not in the interests of justice, having regard to the…

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 3]

Details

AGLC: Jansen v Greville [No 3] [2021] WADC 103
Case: [2021] WADC 103
Decision Date: 28 OCTOBER 2021

CaseChat Overview and Summary

The appeal arose from a decision in the Magistrates Court concerning a claim for damages due to alleged negligence and nuisance caused by building works. The claimant, Mr Jansen, sought compensation for damage to his property which he alleged was caused by the defendant, Mr Greville, who carried out building works on an adjoining property. The claimant was not the owner of the property but was in occupation of it. The appeal was brought before the Supreme Court of the state.

The primary legal issue before the court was whether the building works conducted by Mr Greville constituted negligence and nuisance that resulted in damage to Mr Jansen's property. Additionally, the court had to determine whether Mr Jansen, who was not the property owner, had standing to bring the claim. The court was also required to consider the costs incurred during the Magistrates Court proceedings in light of the appeal being upheld.

The court found that the building works did not constitute negligence or nuisance sufficient to cause the alleged damage to Mr Jansen's property. Moreover, it was determined that Mr Jansen did not have standing to bring the claim as he was not the owner of the property. Consequently, the appeal was upheld, and the Magistrates Court decision was quashed. In light of the appeal being successful, the court ordered that costs be paid by Mr Jansen to Mr Greville.

Orders