Levenspiel v Grinter

[2021] NSWLC 11

Local Court

New South Wales

Medium Neutral Citation:

Levenspiel v Grinter [2021] NSWLC 11

Hearing dates:

8 November 2021; 15 November 2021 (written submissions); 21 November 2021 (further written submissions); 13 December 2021 (costs submissions); 21 December 2021 (further costs submissions)

Date of orders:

22 December 2021 (final orders)

Decision date:

22 December 2021

Jurisdiction:

Civil

Before:

Nash LCM

Decision:

The final orders of the Court are as follows:

(1)   Judgment and verdict for the Defendant;

(2)   Plaintiff’s Statement of Claim filed 8 November 2019 is dismissed;

(3)   The Plaintiff is to pay the Defendant’s costs of the proceedings on the ordinary basis up to 12 May 2020; and

(4)   The Plaintiff is to pay the Defendant’s costs of the proceedings on an indemnity basis from 13 May 2020 (including the costs of the costs application).

Catchwords:

Civil claim – Collision between unmanned marine vessels – Negligence – Non-delegable duty of care – Breach of duty – Damages – Expert evidence in the Local Court – Joint Reports – Costs

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Ports and Maritime Administration Regulation 2012 (NSW)

Subordinate Legislation Act 1989 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bettergrow Pty Ltd v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks operations Trust t/as TransGrid (No. 2) [2018] NSWSC 514

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

Commonwealth v Introvigne (1982) 150 CLR 258

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Field v Dettman [2013] NSWCA 147

Jones v Dunkel (1959) 101 CLR 298

Kondis v State Transport Authority (1984) 154 CLR 672

Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22

McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306

NMFM Property Pty Ltd v Citibank Ltd (No. 10) [2000] FCA 1558

Reed v Warburton [2011] NSWCA 98

Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397

Woodhouse v Fitzgerald and McCoy (No. 2) [2020] NSWSC 450

Category:

Principal judgment

Parties:

Max Levenspiel (Plaintiff)
Geoffrey Grinter (Defendant)

Representation:

Counsel:
Mr J Levingston, Barrister (Plaintiff)
Mr B Lloyd, Barrister (Defendant)

Solicitors:
Vaarzon-Morel Solicitors (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2019/00351814

Publication restriction:

Nil

Judgment

A.    BACKGROUND

1. The figurative expression - “like ships passing in the night” – is well known. These proceedings, however, arise because 2 private marine vessels unfortunately did not pass in the night. Rather, they arise as a result of what was, in fact, either a late night or an early morning collision between 2 unattended and unmanned marine vessels on Brisbane Water near Point Frederick. The plaintiff owned one of the vessels and the defendant owned the other. For ease of understanding, I will refer to the plaintiff, and his vessel, as ‘Mr Levenspiel’ and ‘Mr Levenspiel’s vessel’ respectively, and the defendant, and his vessel, as ‘Mr Grinter’ and ‘Mr Grinter’s vessel’ respectively.

2. In summary, it is not in dispute that Mr Grinter’s vessel, which he had named ‘Siesta’, broke loose…