Priolo v Nguyen - [2022] WASC 290

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PRIOLO -v- NGUYEN [2022] WASC 290
CORAM:   MASTER SANDERSON
HEARD:   16 AUGUST 2022
DELIVERED          :   30 AUGUST 2022
PUBLISHED           :   30 AUGUST 2022
FILE NO/S:   CIV 1453 of 2021
BETWEEN:   ANTHONY PRIOLO
MARIA ROSALIE PRIOLO
First Plaintiffs

AND

KHANH HOANG NGUYEN
First Defendant

YEN THI TRAN
Second Defendant

NONNII CONSTRUCTION PTY LTD
Third Defendant

CIVCON CIVIL & PROJECT MANAGEMENT PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Application to set aside orders made ex parte for an extension of stale writ - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Ex parte orders set side

Representation:

Counsel:

First Plaintiffs	:	M Pullen
First Defendant	:	No appearance
Second Defendant	:	NW Kalmund
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance

Solicitors:

First Plaintiffs	:	Bennett
First Defendant	:	Hotchkin Hanly
Second Defendant	:	Hotchkin Hanly
Third Defendant	:	Hotchkin Hanly
Fourth Defendant	:	Hotchkin Hanly

Case(s) referred to in decision(s):

Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Chalmers and Partners v Kensit [2008] WASCA 122

MASTER SANDERSON:

Good neighbours are one of the consolations of living in suburbia. An agreeable chat over the back fence or an exchange of pleasantries on the front lawn engenders a sense of community, a sense of belonging. Regrettably, not all neighbours get on. There may be a distinct cause of the disagreement - a dog barking incessantly or loud music played late at night. Or, as with the Hatfields & McCoys, the origins of the antipathy may be lost in the mists of time. Generally, the protagonists exist in a state of mutual loathing, the corrosive effect of which is localised. Occasionally, disputes spill over into the courts. This seems to happen more commonly in the western suburbs. Perhaps that is because the individuals concerned are well‑resourced. This case involves adjoining landowners in the leafy riverside suburb of Dalkeith. These reasons deal with what is really a sideshow to the main case. The action itself promises to be lengthy, bitter and costly. The facts relevant to this application can be summarised as follows.
The plaintiffs are the owners of a property at 80 Viking Road, Dalkeith. The first and second defendants are the owners of an adjoining property at 78 Viking Road, Dalkeith. In or around 9 June 2015, the first and second defendant commenced construction of residential premises on their property. The first defendant is a registered builder and through the third and fourth defendants, both of which are controlled by him, he undertook the construction works. The parties' land is divided by a single leaf brick wall approximately 90 millimetres in width. The plaintiffs have a raft of complaints about the way the building on the first and second defendants' land was constructed. Claims are brought for nuisance, negligence and trespass. The statement of claim seeks damages, but those damages are not quantified. The plaintiffs also…

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 Priolo v Nguyen

Details

AGLC: Priolo v Nguyen [2022] WASC 290
Case: [2022] WASC 290
Decision Date

CaseChat Overview and Summary

The case of Priolo v Nguyen involved a dispute between adjoining landowners in Dalkeith, Western Australia. The plaintiffs, Anthony and Maria Rosalie Priolo, sought damages and injunctions against the defendants, Khanh Hoang Nguyen and Yen Thi Tran, who owned a property adjacent to the plaintiffs'. The defendants had commenced construction work on their property in or around 9 June 2015, and the plaintiffs brought claims for nuisance, negligence, and trespass. The plaintiffs issued a writ on 28 May 2021, which expired on 27 May 2022. They then sought an extension of the writ's validity until 17 June 2022, which was granted ex parte on 8 June 2022. The writ was subsequently served on the second defendant, who then applied to set aside the ex parte orders.

The court was required to decide whether the ex parte orders should be set aside, considering the factors in favour and against an extension of the writ's validity. The court referred to the cases of Brealey v Board of Management Royal Perth Hospital and Chalmers and Partners v Kensit to determine the appropriate considerations for granting an extension.

The court found that the factors against granting an extension decisively outweighed the factors in favour. While the statutory limitation period may have expired for some of the plaintiffs' claims, not all causes of action would necessarily be statute-barred if fresh proceedings were issued. Additionally, the plaintiffs did not serve the writ until the last moment, choosing to live by the technicalities and risking failure to observe the time limits. The second defendant's claim of general prejudice due to the delay was not sufficient to warrant the extension of the writ's validity. The court concluded that the interests of justice did not require the exercise of the remedial discretion to grant an extension, and the ex parte orders were set aside.

The court did not find merit in the plaintiffs' claim that the second defendant evaded service, as the rules require personal service and do not mandate a defendant to take steps to facilitate service. The court also noted that the second defendant's marginal role in the dispute was a limited factor in favour of setting aside the ex parte orders.

In conclusion, the Supreme Court of Western Australia set aside the ex parte orders, finding that the factors against granting an extension decisively outweighed the factors in favour. The court emphasized the importance of citizens having recourse to the courts to protect their rights but questioned whether this case represented a productive use of the court's resources.

Orders