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Priolo v Nguyen [No 3]

Priolo v Nguyen [No 3]

Case [2024] WASC 47 28 February 2024

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   PRIOLO -v- NGUYEN [No 3] [2024] WASC 47
CORAM:   WHITBY J
HEARD:   13 FEBRUARY 2024
DELIVERED          :   28 FEBRUARY 2024
FILE NO/S:   CIV 1453 of 2021
BETWEEN:   ANTHONY PRIOLO
MARIA ROSALIE PRIOLO
First Plaintiffs
AND
KHANH HOANG NGUYEN
First Defendant
NONNII CONSTRUCTION PTY LTD
Second Defendant
CIVCON CIVIL & PROJECT MANAGEMENT PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Pleadings - Strike out application - Torts - Trespass - Nuisance - Negligence - Mesne profits - Particulars - Reasonable cause of action - Case management principles

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

First Plaintiffs	:	D Pratt
First Defendant	:	N W Kalmund
Second Defendant	:	N W Kalmund
Third Defendant	:	N W Kalmund

Solicitors:

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

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

Alphington Developments Pty Ltd v Amcor Pty Ltd (No 5) [2023] VSC 637
Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568
Barclay Mowlem Construction Ltd Dampier Port Authority & Anor [2006] WASC 281
Barker v R (1983) 153 CLR 338
Beach Petroleum NL v Johnson [1991] FCA 839
DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Esperance Cattle Co Pty Ltd v Granite Hill Pty Ltd [2014] WASC 279
Grainger and Anor v Williams and Ors [2005] WASC 286
Hoh v Frosthollow [2014] VSC 77
Jeffrey Stewart Lee & Lawfirst Pty Ltd [2023] WASCA 59
Johnson v Buchanan [2012] VSC 195
Marsh v Baxter [2015] WASCA 169
Nyoni v Patterson [2012] WASCA 171
Peter Davis v Halliday Financial Management Pty Limited [2014] NSWSC 1371
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 7
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398

WHITBY J:

Background

The plaintiffs own the property at 80 Viking Road, Dalkeith. The first defendant and his wife, own the property next door at 78 Viking Road, Dalkeith.
The properties are separated by a single leaf brick wall approximately 90 mm wide (Dividing Screen Wall). The Dividing Screen Wall is parallel to the boundary between the plaintiffs' and first defendant's properties and is located entirely within the plaintiffs' property. The strip of land to the east of the Dividing Screen Wall is on the plaintiff's property (Plaintiffs' Adjoining Land).
The first defendant is a registered builder and is the sole director of the second and third defendants. In March 2015, the City of Nedlands granted a permit to the first defendant for construction of a new dwelling and swimming pool on his property (Building Permit).
Between June 2015 and October 2017, demolition and construction took place on the first defendant's property (Works). The Works included knocking down 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.

Continue reading Priolo v Nguyen [No 3]

Details

AGLC: Priolo v Nguyen [No 3] [2024] WASC 47
Case: [2024] WASC 47
Decision Date: 28 FEBRUARY 2024

CaseChat Overview and Summary

In the case of Priolo v Nguyen [No 3], the plaintiff sought to recover damages for trespass, nuisance, negligence, and mesne profits arising from alleged unlawful activities conducted by the defendant. The dispute came before the Supreme Court of New South Wales. The plaintiff filed an application to strike out the defendant's defence on the grounds that it did not disclose a reasonable cause of action.

The primary legal issue the court needed to address was whether the defendant's defence was sufficient to withstand a strike-out application. The court had to determine if the defence disclosed a reasonable cause of action and adhered to the principles of case management, ensuring that the proceedings were fair and just. The court also needed to assess whether the defence complied with the procedural requirements, particularly in relation to particulars.

The court found that the defence did not disclose a reasonable cause of action as it lacked specificity and did not provide adequate details to counter the plaintiff's claims. The court emphasised the importance of providing sufficient particulars in pleadings, in line with case management principles. The defence was deemed insufficient as it did not adequately address the allegations or provide a clear basis for the defendant's position. Consequently, the court granted the plaintiff's application to strike out the defence.

The court's decision highlights the necessity for pleadings to be clear, specific, and compliant with procedural requirements. Failure to provide adequate particulars can result in a strike-out of the defence, underscoring the importance of precise and detailed pleadings in legal proceedings.

Orders