Moussa v Camden Council (No.5) - [2023] NSWSC 1135

Supreme Court

New South Wales

Medium Neutral Citation: Moussa v Camden Council (No.5) [2023] NSWSC 1135
Hearing dates: 13, 14 December 2022;
7, 8, September 2023
Date of orders: 28 September 2023
Decision date: 28 September 2023
Jurisdiction: Common Law
Before: Garling J
Decision:
See [66]

Catchwords:
CIVIL - Representative Proceedings – Whether any Common Questions – Issues of Commonality – Importance of practicality and common sense – The Chief Judge at Common Law was right in Rodriguez (No 5) – Merck Orders made
CIVIL - Representative Proceedings – Whether any Common Questions – Issues of Commonality – Importance of case management principles – Merck Orders made

Legislation Cited:
Australian Consumer Law
Civil Procedure Act 2005
Evidence Act 1995
Supreme Court Act 1970

Cases Cited:
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (No.3) [2001] VSC 372
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2009) 355 ALR 20; [2009] FCAFC 26
Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority t/as Seqwater (No.5) [2015] NSWSC 1771

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)
Representation:
Counsel:
D Priestley SC / J Burnett (P)
P Braham SC (D1)
R Newlinds SC / M Hall (D2)
P Gaffney (D3)
Solicitors:
Mayweathers (P)
McCulloch & Buggy Lawyers (D1)
Marsdens Law Group (D2)
Wotton + Kearney (D3)

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

Judgment

The plaintiff has commenced proceedings pursuant to Part 10 of the Civil Procedure Act 2005 (the “CPA”), claiming damages at common law, and under the Australian Consumer Law, for himself and for all group members who fall within the description set out in 1(c) of the Further Amended Statement of Claim filed on 25 August 2022 (“FASOC”).

Overview

Broadly speaking the plaintiff and each other group member own or owned land within a suburb in the southwest of Sydney called Spring Farm. The plaintiff’s claim is that he has suffered loss and damage because his house, built on one of the lots in the Spring Farm area, has subsided due to the below-surface condition of the soil which made it unsound for building upon. The plaintiff also claims consequential economic loss resulting from the soil or land which was, he claims, in an unsound condition. He claims that the group members also suffered similar damage. Finally, he claims by way of pure economic loss that because of the subsidence affecting some (but not necessarily all) properties in the suburb, the suburb generally has been devalued and that constitutes an economic loss to him.
Camden Council (“the Council”), which is the first defendant, formerly owned some of the land that has since been developed and sold to the plaintiff and some of the group members. The Council was also the principal planning authority for 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.

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Details

Case: [2023] NSWSC 1135
Decision Date: 28 September 2023

CaseChat Overview and Summary

In the case of Moussa v Camden Council, the court was presented with an issue concerning representative proceedings. The parties involved were Moussa, acting as a representative for a group of individuals, and Camden Council. The dispute centred around the determination of common questions that could be effectively addressed through representative proceedings and the practicality and importance of applying common sense and case management principles in such cases.

The legal issues that the court needed to address were whether there were any common questions that could be determined through the representative proceedings and whether these questions had issues of commonality that warranted such a process. Furthermore, the court had to consider the importance of applying practicality and common sense, as well as case management principles, in determining the appropriateness of representative proceedings.

In its reasoning, the court drew on the principles set out in Rodriguez (No 5) and emphasised the importance of practicality and common sense in the context of representative proceedings. The court recognised the Chief Judge at Common Law's approach in Rodriguez (No 5) as an appropriate guide in determining the suitability of representative proceedings. Additionally, the court highlighted the importance of case management principles in ensuring the efficient and effective resolution of disputes. Based on these considerations, the court concluded that representative proceedings were appropriate in this case and made Merck orders accordingly.

The final orders of the court mandated that representative proceedings be allowed, with specific directions given for the management of the case to ensure the efficient and effective resolution of the common questions at hand. The court's decision underscored the importance of practicality, common sense, and case management principles in the context of representative proceedings.

Orders