Paul Galea & Ors v David Farrugia

[2014] HCASL 58

PAUL GALEA & ORS

v

DAVID FARRUGIA & ORS

[2014] HCASL 58
S134/2013

1. The applicants commenced proceedings against the respondents in the Supreme Court of New South Wales, alleging that landfill deposited by the third and fourth respondents on properties owned by the applicants under arrangements between the applicants and the respondents was contaminated with asbestos and seeking damages for the cost of its removal.

2. The Supreme Court of New South Wales (Hislop J) dismissed the proceedings after a six week trial.  His Honour found that the first and second respondents did no more than convey an offer by the applicants to accept good clean fill free of charge from the third and fourth respondents.  He found that the applicants failed to prove on the balance of probabilities that fill deposited on their properties by the third and fourth respondents was contaminated.  He found that whilst there was evidence of contamination at two other properties where the third and fourth respondents had deposited fill, this did not prove the respondents had deposited contaminated fill on those other properties, apparently on the basis that the properties were unsecured and that the contaminated fill may have been deposited by third parties.

3. The Court of Appeal of the Supreme Court of New South Wales (Bathurst CJ, Macfarlan and Ward JJA), after a three day hearing, dismissed the applicants' appeal.  Macfarlan JA (with whom the other members of the Court of Appeal agreed) found no error in the conclusion that the applicants failed to prove that fill deposited on their properties by the third and fourth respondents was contaminated.  His Honour found that, in the absence of evidence of the source of the fill, the necessary proof was not assisted "in any significant way" even if it were to be assumed that the third and fourth respondents had deposited contaminated fill on the two other properties.

4. The applicants apply for special leave to appeal from the decision of the Court of Appeal.  The application raises no question of principle which would warrant consideration by this Court. 

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
12 March 2014 S.J. Gageler