Premier Building & Consulting Pty Ltd v Spotless Gourp Limited (No 14)

[2008] VSC 126

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST

No. 8264 of 2003

PREMIER BUILDING AND CONSULTING PTY LTD (Receivers appointed) (ACN 066 568 367)	Plaintiff
V
SPOTLESS GROUP LIMITED (ACN 004 376 514) AND OTHERS	Defendants

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2007
DATE OF JUDGMENT:	24 April 2008
CASE MAY BE CITED AS:	Premier Building & Consulting Pty Ltd v Spotless Group Ltd (No. 14)
MEDIUM NEUTRAL CITATION:	[2008] VSC 126

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PRACTICE and PROCEDURE – orders – declaratory orders – declaration as to present right to future compensation
Environment Protection Act 1970 s. 62A(2)

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APPEARANCES:	Solicitors
For the Plaintiff (Premier)	Mr J Burnside QC with Mr T Boston	Gadens Lawyers
For the First, Third and Ninthnamed Defendants (Spotless Parties)	Mr T J Walker	Freehills
For the Secondnamed Defendant (North Suburban)	Mr PJ O’Callaghan QC with Ms Marita Foley	Mirabelli, D’Ortenzio & Co
For the Fourthnamed Defendant (Collie Planning)	Mr R Manly SC with Mr M Whitten	Monahan + Rowell
For the Seventhnamed Defendant (Kilpatrick)	Mr J R Dixon SC with Ms LN Nicholls	Slater & Gordon
For the Tenthnamed Defendant (McKenzie Group)	Mr J Davis	Tresscox

HIS HONOUR:

1. Following the publication of my principal judgment after trial of this matter,[1] and having heard argument as to the terms of the orders to be made, one, or perhaps two, issues remain outstanding. The first was as to the orders to be made pursuant to s 62A(2) of the Environment Protection Act 1970 against the firstnamed defendant, Spotless, in favour of the secondnamed defendant, North Suburban, and, perhaps also, in favour of the plaintiff, Premier. The second was as to the detail of the costs order in favour of North Suburban.

   [1][2007] VSC 377. In these reasons I adopt the terminology of this principal judgment.

1. Section 62A[2] permits the court to make compensation orders in favour of the occupier of polluted land against the person who caused or permitted the pollution to occur.  I have following the trial made the following findings:

   [2]The text of this section is set out in the principal judgment: [2007] VSC 377 at [433].

·That Premier was, prior to its sale, the occupier of the Premier land, upon which pollution has occurred.[3]  The EPA has by three notices in writing directed Premier to take certain clean up measures as specified in the notices. 

[3][2007] VSC 377 at [439].

Particulars of notices:

(a)       notice dated 18 December 2003;

(b)      notice dated 27 February 2004;  and

(c)       notice dated 10 March 2006.

·Spotless is a person which has caused the pollution of the Premier land to occur.[4]

·North Suburban was at all material times the occupier of the Spotless land upon which pollution has occurred.  The EPA has by three notices in writing directed North Suburban to take certain clean up measures as specified in the notices. 

Particulars of notices:

(a)       notice dated 18 February 2004;

(b)      notice dated 28 September 2004;  and

(c)       notice dated 9 March 2006.

·Spotless is a person which caused the pollution of the Spotless land to occur.[5]

[4][2007] VSC 377 at [469].

[5][2007] VSC 377 at [662], [667].

1. In each case some of the clean up measures have been undertaken but the work is not complete.  Furthermore, it is possible that one or more further clean up notices will be given to North Suburban.  It is not likely that further notices will be given to Premier since it is no longer occupier of the Premier land.

1. Section 62A(2) contemplates an order for compensation for costs already incurred in compliance with the clean up notice. The quantification of these costs will be referred to a Master.[6]

   [6][2007] VSC 377 at [741].

1. There remains, therefore, the prospect that further costs will be incurred in complying with one or more of the notices which have been given and the further possibility that the EPA will issue further notices when the appropriate clean up procedures have been determined. 

1. Accordingly, the solicitors for North Suburban have proposed that I should make a declaration that the firstnamed defendant is liable to compensate North Suburban for any costs which it will incur in the future in complying with the notices already issued and further notices that may be issued.  Premier does not resist this order or a similar order in its favour in respect to the Premier land.  It was submitted on behalf of the Spotless Parties that it would be inappropriate for the court to make a declaration of present liability for compensation in respect of costs which may never be incurred.  Such a liability, they contend, is hypothetical. 

1. It was not in dispute that, as a matter of law, North Suburban and Premier might return to the court to seek compensation orders pursuant to s. 62A(2) for costs incurred which costs are not part of the present proceeding.[7]  Accordingly, I indicated in my reasons that I would make a declaratory order that North Suburban has the right to an order for compensation in respect of costs incurred and to be incurred in compliance with the three existing clean up notices.[8]

   [7][2007] VSC 377 at [742].

   [8][2007] VSC 377 at [743].

1. I decline to grant declaratory relief in respect of any future clean up notice because there is no certainty that such notice will be given or that the notice will be directed to the clean up of the pollution which I have found to have been caused by Spotless.  These are matters which, having regard to the findings of fact which I have made and which will be binding on the parties, may be the subject of future proceeding. 

1. I will therefore make declarations in these terms:

(1)The firstnamed defendant is a person which has caused to occur the pollution of the land situate at and known as 225 Barkly Street, Brunswick with:

(i)perchloroethylene and trichloroethylene and their breakdown products;  and

(ii)white spirit

(2)Declare that the firstnamed defendant is liable pursuant to s 62A(2) of the Environment Protection Act to compensate secondnamed defendant for any costs incurred by it which are reasonable and which are incurred in good faith in complying with any or all of the following clean up notices:

(a)notice dated 18 November 2003;

(b)notice dated 28 September 2004;  and

(c)notice dated 9 March 2006. 

1. For what it is worth, I will make a similar declaration in favour of Premier with respect to the pollution of the Premier land.

1. Another matter which was the subject of correspondence between the solicitors is as to the terms of the costs order against the plaintiff in favour of the secondnamed defendant.  In essence the debate was as to whether the costs after 4 February 2007 should be assessed on a solicitor and own client basis or on a solicitor and client basis.  The basis for the punitive order for costs is the non-acceptance of a Calderbank Offer.  In the circumstances, I am of opinion that the appropriate order should be for solicitor and client costs. 

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