Piling v Prynew Nemeth v Prynew - [2008] NSWSC 327

CITATION: Piling v Prynew Nemeth v Prynew [2008] NSWSC 327

HEARING DATE(S): 26/02/2008

JUDGMENT DATE :
14 April 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Building & Construction. Adoption of Referee's Report as to negligence in respect of excavation. - Torts - apportionment.

PARTIES: Piling Contractors (Qld) Pty Limited v Prynew Pty Limited
Ferdinand Nemeth & Anor v Prynew Pty Limited and 2 Ors

FILE NUMBER(S): SC 55019/03; 55037/03

COUNSEL: Mr SM Kettle for Piling
Mr J Simpkins SC for Prynew & Tsu
Mr JE Robson SC & DS Weinberger for Nemeths
Mr A Hewitt SC & P Dodson for QBE

SOLICITORS: Thompson Cooper Lawyers for Piling
Avendra Singh & Co for Prynew and Tsu
Salim Rutherford Lawyers for Nemeths
Curwood & Partners for QBE

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Associate Justice Macready

Monday 14 April 2008

55019/2003 Piling Contractors (Qld) Pty Limited v Prynew Pty Limited

55037/03 Ferdinand Nemeth and Virginia Nemeth v Prynew Pty Limited, Peter Tsu and Piling Contractors (Qld) Pty Ltd

JUDGMENT NO 2

1 His Honour: On 26 February 2008 I gave judgment in this matter. At paragraph 145 of the judgment I saidI would decide the question whether the first and second defendant were negligent by reference to the evidence which existed before the Referee.

2 I called for submissions on this aspect from all parties. Apart from the plaintiffs, Ferdinand Nemeth and Virginia Nemeth, in matter 55037/2003, I have received submissions from all the parties.

3 My reason for doing this is set out in paragraphs 142 to 145 in my earlier judgment which were as follows:

“142. Although the Referee found the failure to set out was negligent she did so on the wrong basis but the fact of the matter is that as a result of her factual findings there was a set out of the pile 122 at an incorrect location. This leaves open for consideration support for the Referee’s conclusion of negligence without relying upon the failure to use surveying equipment or surveying techniques. Obviously the set out of the piles at the right locations is critical to the success or failure of the construction of a contiguous wall and a failure in this respect could be classified as negligent.

143. It is plain that the Referee regarded correct set out as fundamental in this project. As I have mentioned Mr Malicia and Mr Little were not called to give evidence. On the evidence they were the men who did the pegging and, given the evidence to this effect, they could have provided answers in respect of the faulty pegging. They are non-party witnesses but in my view it would be natural for the first and second defendants to call them. Plainly their evidence as to what happened on 5 June 2001 would have shed some light on the matter. In my view their evidence would not have assisted the first and second…

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.

Continue reading Piling v Prynew Nemeth v Prynew

Details

AGLC: Piling v Prynew Nemeth v Prynew [2008] NSWSC 327
Case: [2008] NSWSC 327
Decision Date: 14 April 2008

CaseChat Overview and Summary

Piling v Prynew Nemeth v Prynew was a case before the Supreme Court of New South Wales, involving a dispute over the construction of a building and the excavation works required for the foundation. The plaintiff, Piling, was a contractor who had been engaged by the defendant, Prynew, to carry out the excavation. The plaintiff claimed that the defendant had been negligent in the execution of the excavation works, which had resulted in damage to the plaintiff's property.

The legal issues that the court had to decide were whether the defendant had been negligent in the execution of the excavation works, and if so, whether the plaintiff's damages were a result of the defendant's negligence. The court also had to consider whether the plaintiff had contributed to the damages by failing to take reasonable care for their own property.

The court found that the defendant had been negligent in the execution of the excavation works, as they had failed to take reasonable care to avoid damaging the plaintiff's property. The court also found that the plaintiff had contributed to the damages by failing to take reasonable care for their own property. The court held that the damages should be apportioned between the parties, with the defendant liable for 60% of the damages and the plaintiff liable for 40% of the damages. The court adopted the referee's report on the issue of negligence and damages.

The court ordered that the defendant pay the plaintiff the sum of $110,000, representing 60% of the total damages. The defendant was also ordered to pay the plaintiff's costs of the reference and of the action up to the point of judgment.

Orders