Moussa v Camden Council (No.3) - [2022] NSWSC 913

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Moussa v Camden Council (No.3) [2022] NSWSC 913
Hearing dates: 16 December 2021
Date of orders: 08 July 2022
Decision date: 08 July 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [79]

Catchwords:
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed
CORPORATIONS — corporate character — parent and subsidiary — liability of parent company for harm caused by its wholly owned subsidiary — no duty of care owed
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — principle in Wickstead v Browne — principle does not preclude summary dismissal in this case

Legislation Cited:
Civil Procedure Act 2005 Pt 10
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 236
Law Reform (Miscellaneous Provisions) Act 1946
Supreme Court Act 1970
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005 r 13.4

Cases Cited:
A v Dept of Communities and Justice [2021] NSWSC 937
Breheny v Cairncross [2002] NSWCA 69
Briggs v James Hardie & Co Pty Ltd (1987) 16 NSWLR 549
Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148
Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258
CSR Ltd v Wren (1997) 44 NSWLR 463
Dickson v Chaffey [2012] NSWSC 336
Menzies v Australian Iron and Steel Ltd (1952) 52 SR (NSW) 62
PAO v Trustees of the Roman Catholic Church for the Diocese of Sydney [2011] NSWSC 1216
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Sanders-Pattinson v Brown [2012] NSWSC 443
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272

Texts Cited:
Glanville Williams, Joint Torts and Contributory Negligence (Stevens, 1951)

Category: Procedural rulings
Parties: Danny Marielle Moussa (P)
Camden Council (D1)
Cornish Group Spring Farm Pty Ltd (ACN 120 837 381) (D2)
SMEC Testing Services Pty Ltd (ACN 101 164 792) (in liq) (D3)
SMECTS Holdings Pty Ltd (ACN 063 746 823) (D4)
Representation:
Counsel:
D Priestly SC with J Burnett (P)
R Oldfield (D1)
R Newlinds SC with M Hall (D2)
IG Roberts SC with J Entwisle (D4)
Solicitors:
Mayweathers (P)
McCulloch & Buggy Lawyers (D1)
Marsdens Law Group (D2)
Arch Law (D4)

File Number(s): 2020/00359004
Publication restriction: Not Applicable

Judgment

The plaintiff, Mr Danny Moussa, has commenced a representative proceeding in this Court pursuant to Part 10 of the Civil Procedure Act 2005, claiming damages at common law, damages under s 236 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, costs and interest.
The plaintiff and each other group member own or owned land within Spring Farm, a recently developed suburb in the Macarthur region of south-west Sydney. The plaintiff complains of loss and damage in the nature of property damage and economic loss resulting from unsound soil conditions upon which houses were developed which have affected various properties in the area.
The first defendant, Camden Council…

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.

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Details

Case: [2022] NSWSC 913
Decision Date: 08 July 2022

CaseChat Overview and Summary

The plaintiff, Moussa, brought an action against Camden Council in the Federal Circuit Court, seeking damages for harm allegedly caused by the defendant's wholly owned subsidiary. The defendant moved to have the case summarily dismissed, arguing that the plaintiff's claim disclosed no reasonable cause of action. The primary legal issues the court had to address were whether the parent company could be held liable for the actions of its subsidiary and whether the plaintiff had disclosed a reasonable cause of action warranting further judicial inquiry.

The court examined the principle established in Wickstead v Browne, which holds that a parent company cannot be held liable for the torts of its subsidiary unless there is evidence of control or participation. The court found that the plaintiff had not provided sufficient evidence to establish that the parent company had exercised control over the subsidiary's operations. Additionally, the court held that the plaintiff had not demonstrated any breach of a duty of care owed by the parent company to the plaintiff. The court concluded that the plaintiff's claim lacked the necessary evidentiary basis and therefore dismissed the proceedings on summary judgment.

The court's reasoning hinged on the lack of evidence of control or participation by the parent company and the absence of a duty of care owed to the plaintiff. The court found that the principles in Wickstead v Browne did not preclude summary dismissal in this case, as the plaintiff had not made out a prima facie case. The court dismissed the plaintiff's proceedings, finding that there was no reasonable cause of action disclosed.

Orders