Livingstone v City of Melbourne
[2020] VCC 194
•5 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-19-03074
| ANGELA FRANCES LIVINGSTONE | Plaintiff |
| v | |
| CITY OF MELBOURNE | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2020 | |
DATE OF JUDGMENT: | 5 March 2020 | |
CASE MAY BE CITED AS: | Livingstone v City of Melbourne | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 194 | |
REASONS FOR JUDGMENT
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Catchwords: Wrongs Act 1958 – action in nuisance by house owner (plaintiff) against City (defendant) – damaged house from roots of tree planted by defendant – tree root guard installed by sub-contractor of defendant – suggestion by defendant that plaintiff join sub-contractor as a second defendant – refusal of plaintiff so to do – failure of the defendant to adhere to pre-trial timetable set by Judicial Registrar by way of consent orders – approximately three weeks out from trial date defendant seeks to add sub-contractor as a third party – necessary vacating of trial date if leave so granted – objection by plaintiff to leave being so granted – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Lapirow | Abbott & Mourly |
| For the Defendant | Mr M Latham | Hunt & Hunt |
HIS HONOUR:
General background
1 This matter comes before me as an application pursuant to s24AL of the Wrongs Act 1958. The application is made by the defendant, the City of Melbourne. The City of Melbourne seeks to add as a third party, Citywide Service Solutions Pty Ltd, hereinafter referred to as “Citywide”. As it stands, the action involves only the plaintiff, Ms Livingstone, and the defendant, the City of Melbourne. That proceeding has been set down for trial on 18 March 2020 as a cause and with an estimated duration of three days. The Writ was filed on 3 July 2019. If the application is granted, it is inevitable that the hearing date will have to be vacated. This plays a prominent part in the plaintiff’s opposition to the application. I shall discuss the background and circumstances surrounding the case and this application in more detail shortly.
2 Mr M Lapirow of counsel appeared on behalf of the plaintiff. Mr M Latham of counsel appeared on behalf of the defendant. Whilst it may well be that a representative of Citywide was present during the conduct of the application, no formal application for Citywide to be heard was made. No oral evidence was taken, the application being argued on the documents.
Factual background and some relevant pleadings
3 No factual evidence was adduced other than what is contained in the documents that were put before me and the following observations as to matter of fact are solely for the purposes of the present argument.
4 The plaintiff is the owner and occupier of a small single-fronted brick house in Dryburgh Street, West Melbourne. It is on the corner of a laneway and shares a party wall with a property immediately to its south. There is a footpath and a nature strip at the front of the house owned and maintained by the defendant. In 2009, a White Cedar tree was planted on the nature strip at the front of the house. The plaintiff is asserting that, between 2011 and 2013, cracks became apparent in one of the walls of the house. In addition, the footpath of the defendant began to heave in the vicinity of the tree. The plaintiff advised the defendant of these matters and, in February 2014, the defendant removed and replaced a section of the footpath in the vicinity of the tree. Cracking and damage continued to occur to the point where the plaintiff was unable to open or close the front door of the property. She asserts that cracking and visible damage continued to worsen.
5 In April 2015, the plaintiff wrote to the defendant concerning the need for immediate remedial works. On 28 August 2015, the defendant is alleged to have acknowledged the invasion of the roots of the tree and undertook works, namely the placing of a tree root barrier along Dryburgh Street. It is asserted that, following this, more ground water has accumulated, the tree has continued to grow and absorb moisture, and the result has been the moving of foundations. Cracking in another wall or walls is alleged to have occurred.
6 On the basis of the above, loss and damage resulting from nuisance has been asserted, with damages of in excess of $450,000 being claimed. It is further asserted by the plaintiff that the defendant was negligent, essentially in placing the tree root barrier too close to the foundations of the plaintiff’s house, this resulting in loss and damage.
7 Without going through each paragraph of the Defence, it is admitted that a tree was planted on the footpath outside the plaintiff’s property. It is admitted that a section of the footpath was replaced in 2014. The installation of a tree root barrier on or about 28 August 2015 is admitted. Continued growth of the tree is also admitted. Essentially, there are denials or non-admissions in relation to other assertions, save for the following.
8 In relation to the assertion of negligence based upon the position in which the tree root barrier was placed, the defendant asserts that the installation of such barrier was undertaken by Citywide, which is a concurrent wrongdoer, and that this is an apportionable claim pursuant to the Wrongs Act. Accordingly, s24AI operates in relation to limits of liability. Indeed, the defendant relies upon and repeats the Particulars of Negligence set out in the plaintiff’s Statement of Claim. This is in addition to the denial of negligence. Contributory negligence on the part of the plaintiff is also asserted, particularly in relation to alleged failure to seek and heed professional assistance or advice.
9 Against that general background, I turn now to the submissions on behalf of the parties.
The submissions on behalf of the parties
10 The submissions on behalf of the parties will be dealt with in the order in which they were advanced.
(i) The submissions on behalf of the defendant
11 The submissions of Mr Latham on behalf of the defendant could be summarised as follows.
12 The purpose of the defendant’s application is that it seeks to obtain contribution from a third party. There is no third party notice, because there is also a claim for breach of contract against such party.
13 The proposed third party, Citywide, undertakes footpath inspection and maintenance services for the defendant, and did this in relation to the tree in question. Citywide also engages in activities such as planting trees, inspection and maintenance. It is the obligation of Citywide to identify where trees could be considered to be a hazard.
14 Pursuant to its contract with the defendant, Citywide also installs tree root barriers. Citywide was solely responsible for the installation of the tree root barrier outside the plaintiff’s house.
15 Expert reports have been obtained. Further, reference is made to the affidavit of Mr Ebru Campos, instructing solicitor on behalf of the defendant, and to the affidavit of Mr Tony Anamourlis, instructing solicitor on behalf of the plaintiff. There were discussions about the possible joinder of Citywide as a defendant. It is accepted that, as at September 2019, there was not sufficient evidence concerning Citywide to warrant a joinder.
16 However, on 23 December 2019 the defendant obtained an Expert Evidence Report that the barrier was likely to have been more effective if it had been deeper and longer. The defendant then formed the view that it was in a stronger position to proceed against Citywide. The Christmas holiday period intervened. Perhaps the present application could have been made earlier, but it would only have been a matter of weeks. A change of trial date would still have been necessary. In addition, whilst the expert investigation and inspection was carried out in September 2019, the report was not received until just before Christmas.
17 The proceeding was only issued in mid-2019. A hearing date in March 2020 was allocated fairly rapidly. With the benefit of hindsight, this may not have allowed sufficient time for the required amount of expert evidence to be obtained. The trial date would have to be vacated and a schedule for further interlocutory steps put in place. Discovery by all parties would be required.
18 Turning to the provisions of the Wrongs Act, the starting point is s24AF. The apportioning provisions apply to a claim for economic loss or damage to property arising from a failure to take reasonable care. An apportionable claim is picked up by s234AE and s24AF. The power to make the order is under s24AL. The term “a concurrent wrongdoer” is defined in s24AH. In the present situation, the claim is set out in the draft third party notice. It is asserted that Citywide owed a duty of care to the plaintiff and failed in a number of ways to discharge this duty of care. An important provision is that contained in s24AI(3). This provides that, in apportioning responsibility between defendants, the Court must not have regard to the comparative responsibility of any person who is not a party to the proceeding, save in certain circumstances which are not relevant in the present case. This creates a different situation to that where joinder is sought pursuant to the Court rules. If the present application is not granted, the defendant loses its right to an apportionment.
19 Section 24AL confers a broad and unfettered discretion to be exercised judicially. An apportionable claim must be arguable. Reference is made to the decision of Hargrave J in Atkins v InterpracFinancial Planning Pty Ltd [2008] VSC 99. The defendant need only establish that the pleadings contain factual allegations which, if established at trial, could arguably found one or more of the causes of action alleged. If the Court is satisfied such an arguable case has been put forward, joinder should be allowed. In relation to the alleged breach of the contract between the defendant and Citywide, these relate to such matters as an implied term that Citywide use reasonable care and skills in carrying out its contractual obligations. The breach of contract claim is not an apportionable claim within the meaning of s24AL. It is not actionable by the plaintiff. This has been done by way of a third party claim so that the additional contractual claim could be included. This will not increase the duration of the trial. The same facts would be involved. The alleged negligence by Citywide for the purposes of the plaintiff’s action would be informed by the alleged breaches of the terms of the contract.
20 As to whether a duty of care should be owed by a contractor or a public authority to members of the public that might be impacted by the manner in which it undertakes its duties, this is not a recognised category where a duty of care would arise. Reference is made to the decision in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649. There are various factors which are relevant to the establishing of a duty of care against the contractor. These include such matters as the degree and nature of control able to be exercised by the contractor to avoid harm. In the present case, the contractor was an expert organisation. It undertook what it was doing without supervision. It was a law unto itself. There was a degree of vulnerability on the part of the plaintiff to harm from the contractor’s conduct. There was only a very limited capacity on behalf of the plaintiff to take steps to protect herself. If the plaintiff’s claim is made out, there will be very sizeable consequences, particularly financial consequences, for those living in the area. The claim against the third party is arguable on any view. The prejudice to the defendant will be significant if it is unable to join the third party.
(ii) The submissions on behalf of the Plaintiff
21 The submissions of Mr Lapirow on behalf of the plaintiff could be summarised as follows.
22 Since September 2019, the plaintiff has been aware of the defendant’s desire to have Citywide joined as a defendant. On 28 August 2019, comprehensive scheduling orders were made by Judicial Registrar Gurry. There is no evidence that there was any untoward delay in relation to the defendant obtaining such reports as it needed prior to September 2019. The orders made on 28 August 2019 were consent orders and included the setting down of the proceeding for trial on 18 March 2020 as a cause. The plaintiff paid the setting down for trial fee as ordered. The plaintiff complied with the order for discovery. The defendant was ordered to provide discovery by 20 November 2019. That was not done. That order has only been complied with in the last two days. No explanation has been provided in relation to that delay. The defendant was to serve interrogatories. Nothing was done. It was ordered that there be an exchange of expert reports by 15 January 2020. The plaintiff complied. The defendant did not. There was to be mediation by 12 February 2020. The plaintiff’s solicitor has contacted the defendant’s solicitors in relation to mediation, but has been ignored. During this time, the plaintiff has been living in a house where the front two rooms are crumbling and she is unable to use the front door. The plaintiff has incurred ongoing expenses, which have been particularised in the Statement of Claim. However, the defendant has done nothing.
23 On 30 September 2019, the plaintiff’s solicitor wrote to the defendant’s solicitor. This followed an email being sent by the defendant’s solicitor, which included a copy of a contract in relation to tree management and maintenance, and the expression of a legal opinion to the effect that the contract may support a claim for apportionment against Citywide. Also forwarded was a 406 page contract. The contract was unexecuted. In a letter of 30 September 2019, the plaintiff’s solicitor advised the defendant’s solicitor as follows. The plaintiff’s solicitor stated that consideration had been given to the prospect of joining Citywide as a defendant for the purposes of an apportionable claim under the Wrongs Act, as suggested by the defendant. At this point, the plaintiff would submit that the principal action in the matter is one of nuisance and that is not apportionable pursuant to the Wrongs Act. In any event, the plaintiff’s solicitor stated that, on the basis of the material provided to date, he had not formed any view as to whether the claim is apportionable or whether there was negligence or breach of contract as between the defendant and Citywide. It was further pointed out that the contract was of 406 pages and was unsigned and undated. Further, the scope of the contract is said to be defined by the Invitation to Tender. Parts of the contract have been redacted.
24 It is submitted that the contract appears to say that the defendant “retains its responsibility” for such matters as what trees may be planted or where they may be so planted. On the documents, it appears that it is the defendant which controls what trees may be planted and where. Further, the contract is unsigned, undated, parts have been redacted and there is no page numbering. The scope of the contract is said to be defined by the Invitation to Tender. In relation to Tree Management, there is no clear abandonment or ceding of the defendant’s right to determine what trees may be planted or where they may be planted. The contract appeared to say that the defendant retains its responsibility for such matters. It is the defendant which determines what tree gets planted. It is as if the defendant is trying to join its own employees as parties. On the basis of the documents provided, it retains the ultimate supervision. In addition, there is reference to the “Data Pack” of the defendant’s tree assets, but this was not provided to the plaintiff’s solicitor. Further, the letter pointed out that tree root barrier works were clearly undertaken at the direction of the defendant and design work was undertaken by the City of Melbourne Engineering Service Branch.
25 It is upon this document that the defendant relies in attempting to justify why the plaintiff should lose her hearing date. That Citywide has some responsibility is contrary to what is contained in the document that has been proffered.
26 The Defence asserts contributory negligence on the part of the plaintiff in a most unusual way. The plaintiff sought further particulars of the allegations of contributory negligence. A Request for Further Particulars was enclosed by way of service with the letter of 30 September 2019. That Request has never been acknowledged or responded to in any way. It has been ignored.
27 The parties are now less than a month out from trial. Everything that one would have thought should have been done by a large firm of solicitors representing a wealthy client has not been done. There was not even a response to the letter of 30 September 2019 until into the current year. When it was received, it did not respond to the contractual provisions which demonstrate that the proposed action against Citywide is absurd.
28 Page 6 of the contract clearly provides that another document, Invitation to Tender, is to be used in defining tasks and obligations thereunder. The Invitation to Tender has not been supplied to the solicitor for the plaintiff. Page 8 of the contract has further reference to the Invitation to Tender and has been redacted. There are additional references to the Invitation at seven other pages. The definition of “Tree Management” indicates that the defendant retains its responsibility for strategic planning, capital development improvement, management and legal supervision or other contracted services, and enforcement of regulations, in relation to open spaces and trees. It also provides that the defendant has the entitlement and power to supply trees and to undertake professional investigations. There is a reference “Data Pack” of the tree assets. That has not been provided. There is no responding or contesting affidavit on the part of the defendant.
29 The defendant’s affidavit material is general in nature. There is a broad assertion that Citywide is solely responsible for matters to do with the root barrier. The affidavit does not grapple with the document that has been provided. The facts for the defendant’s consideration have been laid out by the plaintiff. The defendant has not set out material acceptable to the Court for the derailing of the plaintiff’s case. It does not set out that Citywide is in fact a specialist service provider to the defendant. Instead, it is said that Citywide, as contractor, works under the direction of the defendant.
30 Leave should not be given. The defendant has sat on its hands. The defence has been conducted in a high-handed manner, with no regard to the consent which it provided on 28 August 2019 or to the consent orders that were made. However, the plaintiff has paid the trial fee and has complied with all the obligations which she had. Her request for particulars of pleading have been ignored. The Christmas break is no excuse for the defendant failing to comply with its obligations. All these matters and requirements could have been complied with the day after the 30 September 2019 letter of the plaintiff’s solicitor. Paragraph 7 of the affidavit of the defendant’s solicitor, being the affidavit of 21 February 2020, is particularly telling. It is virtually admitted that the letter of the plaintiff’s solicitor of 30 September 2019 made it clear that the plaintiff did not possess materials which enabled it to join Citywide as a defendant. The defendant has made an assertion, but provided no particulars.
31 The plaintiff would be prejudiced by an adjournment for the purposes of enabling the defendant to join Citylink as a third party. There would be costs thrown away. The plaintiff has briefed for the hearing. She has complied with all procedural orders that have been made. As is evident from the expert’s reports, the plaintiff is living in a small house with enormous cracks in the walls of the first two rooms. The front door will not open and shut. Furniture has had to be removed from the rooms, and she is paying storage in that regard. All of these matters are known to the defendant.
32 There is no explanation that has been given by the defendant as to why it waited until 18 February 2020 to provide an Affidavit of Discovery. It was required to be done in November. Apparently the defendant has decided to put maximum pressure upon the plaintiff and create maximum costs.
33 The defendant has slept on its rights. It still has its rights in relation to any contract with Citywide. There is no reason why the case based on nuisance should not proceed. Matters of negligence will work out at the trial. The defendant is not hurt by the matter remaining in the list and proceeding on the hearing date which has been fixed. It retains its contractual right against Citywide.
(iii) The reply on behalf of the Defendant
34 The reply of Mr Latham on behalf of the defendant could be summarised as follows.
35 It is incorrect to say that nuisance is not apportionable. What is asserted is a failure to take reasonable care. Reference is made to the wording of s24AF and what was said by Middleton J in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216. An apportionable claim is one that arises from a failure to take reasonable care. A failure to take reasonable care may form part of the allegations or the evidence that is tendered in the proceedings.
36 Reference is also made to s24AH. The issue is whether the apportionable claim relies upon reflects and act or omission. If it does, the relevant provisions of the Wrongs Act are made out.
37 The reference to costs being thrown away in a situation where the trial date is still some weeks away is disingenuous. At this stage, there would be no costs reasonably thrown away by reason of the matter not proceeding on the due date.
38 In answer to a question of mine as to what sort of delay was envisaged, Mr Latham suggested a period of three months. He also made the concession that this might not necessarily reflect the position of the third party, should it be added. In relation to the circumstances surrounding the plaintiff and her problems with her residence, Mr Latham stated that prejudice was relevant, but, for example, on the plaintiff’s own claim, there has been an inability to shut the front door since 2015. However, the prejudice suffered by the defendant would be greater if the matter remained fixed for hearing, in that the apportionment claim would be lost. Mr Latham also argued that the breach of contract case could be dealt with by way of case management at the end of the litigation between the plaintiff and the defendant. The third party notice would allow the defendant to bring in the breach of contract claim, which would rely on the same facts. As a result, there would be no inconvenience. All the issues raised in this matter would be before the Court. Secondly, Citywide could be added pursuant to Rule 9.06(b)(ii). Reference is made to the judgment of Zammit JA in Talacko v Talacko [2014] VSC. The addition of the breach of contract claim would cause no additional prejudice if the defendant has already succeeded. It would enable the defendant to bring the breach of contract claim with the addition of only a minimum of evidence. It might only add 30 minutes of evidence. Further, in the nuisance or negligence action, the terms of the relevant contract would need to be examined. What is in the contract and the responsibilities allocated therein are relevant to the issue of negligence. Nothing new would be added.
39 Mr Lapirow also added some further comments. In his estimate, the delay caused would not be in the order of three months, but of a year. At the present time, the Court does not know what attitude Citywide would adopt. There is no material from it or from the defendant in relation to it. As the Court has been made aware, the contract itself is some 406 pages long and there are additional documents in relation to tender and the like which could well be relevant. There is also the issue of communications between the defendant and the proposed third party. It is not known what directions were given in relation to the tree root barrier. It is not known whether there are issues in relation to the tender or to the design. The potential exists for this to be a very substantial contractual dispute. Further, greater delay will mean more expense in respect of updated reports and the like. Re-consideration of special damages would be required.
Ruling
40 Having considered the careful, and at times, forceful arguments on behalf of the parties, I have arrived at the following conclusion. I am not prepared to grant leave to the defendant to issue third party proceedings against Citywide. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(i)As at the date of the hearing of this application, the trial date was only approximately three weeks away. I accept the unchallenged assertion of Mr Lapirow on behalf of the plaintiff that the orders made by Judicial Registrar Gurry on 28 August 2019 were made by consent. This was not challenged. I note that the Order made was a Chambers Order based upon correspondence. Thus, it was ordered by consent that this proceeding was set down for trial on 18 March 2020 – that is, approximately 6½ months after the setting down. Nothing was done by the defendant in relation to that hearing date until the issuing of a summons dated 4 February 2020 – approximately six weeks before the hearing. The supporting affidavit with its exhibits was not sworn until 21 February. Before I move on to a more detailed timetable, including particulars of breaches of the orders made by Judicial Registrar Gurry, that in itself is a factor of some significance. Some 5½ months had passed between the date of the consent setting down of the matter and the hearing date before any action was taken by the defendant. When it was so taken, the hearing date was very close.
(ii)Secondly, this is not a situation where there was some sudden and surprising development that took the defendant by surprise and occurred in a situation where the defendant had no earlier opportunity to do anything about it. As early as 31 July 2019, and almost a month before the consent orders were made, the defendant had filed and served a Defence in which it asserted that the installation of the tree root barrier was undertaken by Citywide. It also asserted that Citywide was a concurrent wrongdoer and referred to the Wrongs Act. It pleaded that the defendant relied upon and repeated the particulars of negligence set out in the plaintiff’s Statement of Claim. Thus, even before and at the time that it consented to the setting down of the trial for 18 March 2020, the defendant was alleging that the installation of the tree root barrier was undertaken by Citywide and was relying upon and repeating the particulars of negligence set out in the plaintiff’s Statement of Claim. Despite this, it went ahead with the setting down of the matter for trial and made no application to join Citywide until February 2020.
(iii)The solicitor for the plaintiff has sworn that, undercover of an email of 19 September 2019 from the defendant’s solicitor, the contract between the defendant and Citywide was forwarded to him for the plaintiff. There was also a covering letter in relation to tree management and maintenance, together with an expression of legal opinion that the contract could support a claim for apportionment against Citywide. In other words, some three weeks after the matter had been set down and still some six months out from the hearing date, the defendant was aware of the number of the relevant contract involving Citywide and had obtained a legal opinion in relation to it. Apparently this opinion, based on the contract, was to the effect that it might support a claim for apportionment against Citywide.
(iv)On 30 September 2019, the plaintiff’s solicitor wrote an “open” letter to the defendant’s solicitor. This appears to have been sent by email. This stated, inter alia, the following:
“On your client’s material, it appears that all responsibility and direction, and decision making including design was carried out by your client, not CityWide Service Solutions Pty Ltd. If there were individual aspects of the work performed outside our client’s premises that constituted a breach of some duty owed by your client’s contractor to your client, we have no information that would enable our client to allege or plead any claim against the contractor.
We will cooperate with any application your client may make to have CityWide Service Solutions Pty Ltd joined as a Defendant, but in the circumstances, on the material you have provided to date, we are not prepared to initiate such an application.”
Thus, the attitude of the plaintiff in relation to joining Citywide as a defendant was made quite clear. The matter was still 5½ months away from the agreed hearing date. The defendant now had no excuse for inactivity. It had to either prepare for trial or take immediate steps in relation to the addition of the third party. Whether it did the former is questionable. It certainly did not do the latter.
(v)In the meantime, the plaintiff was complying with the schedule agreed to and ordered by Judicial Registrar Gurry. There is no suggestion but that the plaintiff complied with the requirements of the timetable. There is also no suggestion but that the defendant failed to comply with various aspects of it and, at least to some extent, appears to have engaged in apparent inactivity. For example, discovery was to be made by the defendant before or on 20 November 2019. It was not provided until 18 February 2020, and no explanation has been given for that delay. There was leave to serve interrogatories by 18 December 2019. Nothing was done in that regard. There was to be the exchange of expert reports by 15 January 2020. The defendant did not comply with this. There was to be mediation by 12 February 2020. This has not occurred. Further and Better Particulars of the Defence, particularly in relation to allegations of contributory negligence, were sought in the letter of 30 September 2019, but have not been provided. I would repeat that during submissions, it was stated specifically that there was no criticism of the plaintiff or her legal advisers in relation to compliance with the orders of Judicial Registrar Gurry. There was certainly no shortage of criticism of the defendant’s performance in this regard by Mr Lapirow.
(vi)There are also the related issues of the plaintiff’s expectations concerning the upcoming trial date and the inconvenience, along with damage, which she is suffering. It is asserted that she is living in a small house where the walls in two rooms have major cracks in them. It is asserted that she is unable to open and close her front door, presumably because of some shift in the foundations or the like. Mr Latham, in an apparent endeavour to minimise this latter inconvenience, submitted that this had been the situation since 2015, some four years before litigation was commenced. That may be so, but the other side of that particular coin may be that she has already been enduring this inconvenience for a considerable period and understandably is keen to achieve some satisfaction in relation to it.
Furthermore, there are few litigants, and particularly individual litigants, who do not wish to get their litigation over and done with. Doubtless many regard it as a gruelling experience and their anxiety increases as the hearing day approaches. Since 28 August 2019, the plaintiff has had the prospect of having the litigation dealt with on 18 March 2020. There is no criticism of her solicitors to the effect that they have failed to take any steps to ensure that this would occur. Now there is an attempt to adjourn that hearing date so that something that was contemplated months ago can at last be pursued by the defendant – a defendant which has failed to comply with various orders made by the Judicial Registrar of this Court.
(vii)It is also to be borne in mind that an order refusing leave to join Citywide does not mean that the defendant is shut out from pursuing any breach of contract action against that entity. It may have been more convenient for it to proceed by way of a third party notice. However, by leaving its application until virtually the last moment, the granting of leave would inevitably necessitate the adjournment of the matter. Potentially, that would cause to the plaintiff a far greater amount of inconvenience than that which might be suffered by the defendant. In addition, the situation in which the defendant finds itself largely has been created by its own dilatory conduct.
(viii)If there are any risks associated with the Wrongs Act provisions and apportionment, and by reason of the absence of Citywide as a party, clearly these are risks which the plaintiff is prepared to take. Doubtless the plaintiff has had the benefit of advice of her solicitor and her counsel. The bottom line is that she wishes this matter to proceed as a cause against the defendant on 18 March next. For the reasons set out above, I find that she is entitled so to do.
Conclusion
41 The plaintiff is successful. The Summons of the defendant is dismissed. I shall hear the parties on the question of costs.
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