Rove Estate Pty Ltd atf Lane Cove Estate Trust v Chomp Excavations and Demolition Pty Ltd (No 2)

[2021] NSWSC 1124

Supreme Court

New South Wales

Medium Neutral Citation:

Rove Estate Pty Ltd atf Lane Cove Estate Trust v Chomp Excavations & Demolition Pty Ltd (No 2) [2021] NSWSC 1124

Hearing dates:

31 August 2021

Date of orders:

31 August 2021

Decision date:

31 August 2021

Jurisdiction:

Equity - Commercial List

Before:

Williams J

Decision:

The plaintiff’s application for leave to amend is refused.

Catchwords:

PRACTIVCE AND PROCEDURE – application for leave to amend the Commercial List Statement

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 34, 35

Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64

Protection of the Environment Operations Act 1997 (NSW), ss 143, 144AAA

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574

Category:

Procedural rulings

Parties:

Rove Estate Pty Ltd atf Lane Cove Estate Trust (Plaintiff)
Chomp Excavations & Demolition Pty Ltd (First Defendant)
Carlo Excavations Pty Ltd (Second Defendant)
Haulbuild Pty Ltd (Third Defendant)
Empire Transport Solutions Pty Ltd (Fourth Defendant)
Mr Ahmad El Kadomi (Fifth Defendant)
Mr Ahmad Kataieh (Sixth Defendant)
Mr Paul Jones (Seventh Defendant)
Mr George Abousleiman (Eight Defendant)
Mr Daniel Gawidziel (Ninth Defendant)
Mr Richard Gawidziel (Tenth Defendant)

Representation:

Counsel:
Mr F. Corsaro SC (Plaintiff)
Mr F.F.F. Salama with Mr A Smyth (First Defendant)
Mr G. Smith (Third Defendant)
Mr A. Patterson (Solicitor) (Fifth Defendant)
Mr R. Lee (Seventh Defendant)
Mr I. Archibald (Eight Defendant)

Solicitors:
Memcorp Lawyers (Plaintiff)
Mihalatos & Associtaes (First Defendant)
McInnes Wilson Lawyers (Third Defendant)
Edmond Khourey Solicitors (Fifth Defendant)
Vaughn Zarb Lawyers (Seventh Defendant)
Harrington Lawyers (Eight Defendant)
No Appearance for: Second, Fourth, Sixth, Ninth and Tenth Defendants

File Number(s):

2019/381976

Publication restriction:

N/A

Ex tempore Judgment (revised from transcript)

1. By amended statement of claim filed on 19 November 2020, the plaintiff alleges that each of ten defendants entered onto the plaintiff’s land at various different times on 13 and 14 July 2018 and dumped waste on the plaintiff’s land that could not lawfully be deposited on that land by reason of ss 143 and 144AAA of the Protection of the Environment Operations Act 1997 (NSW). The conduct of each defendant is alleged to have constituted trespass and also a breach of ss 143 and 144AAA of that Act.

2. The plaintiff pleads that:

“30.    Each of the defendants’ actions in entering the Property and, and further or alternatively, disposing of Waste on the Property without Rove’s consent constituted an act or acts of trespass to land.

31. Further or alternatively, each of the defendants’ actions in transporting Waste to the Property and disposing of Waste on the Property was in breach of sections 143 and 144AA [sic] of the Act.

32.    Rove suffered loss and damage as a result of the defendants’ acts of trespass and breach of statutory duty in not transporting and disposing of Waste on the Property.”

3. The statement of claim then states that the plaintiff claims:

“1.   Damages, including exemplary and further or alternatively aggravated damages.

2. Interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW).

3.   Costs.”

4. In opening submissions on the first day of the hearing, senior counsel for the plaintiff clarified that the plaintiff does not, in fact, claim damages in tort for alleged breaches of ss 143 and 144AAA of the Protection of the Environment Operations Act.

5. Five of the defendants have taken no active part in the proceedings.

6. Of the remaining five, each of them denies that they trespassed on the plaintiff’s land.

7. The first defendant denies that material it deposited on the plaintiff’s land contained waste of the relevant kind and says that it deposited Virgin Excavated Natural Material on the land with the plaintiff’s consent (VENM). The position of the third and eighth defendants is substantially the same. The fifth defendant denies dumping any waste on the plaintiff’s land. The seventh defendant also denies dumping any material on the plaintiff’s land and says that he transported a track loader to the plaintiff’s land.

8. It became plain from evidence served by the plaintiff that the plaintiff was unable to, or was not attempting to, identify or quantify loss and damage that it had suffered as a result of the cost of removing from the land the specific material allegedly deposited by each defendant. Rather, the plaintiff was claiming the loss that it claimed to have suffered as a result of the removal of all of the material allegedly deposited on its land by all of the defendants and various other unidentified persons on 13 and 14 July 2018.

9. In that context, the eighth defendant amended its defence on 5 August 2021 to plead that:

1. if the eighth defendant had trespassed (which was denied), then it was a several tortfeasor and therefore only liable for any damage that it may have severally caused to the plaintiff; and

2. further or alternatively, if the plaintiff’s claim was an apportionable claim within the meaning of s 34 of the Civil Liability Act 2002 (NSW) – that is, if it is a claim for the same economic loss or damage to property arising from a failure to take reasonable care, irrespective of whether the claim is based on more than one cause of action – then the other defendants were concurrent wrongdoers whose conduct caused the plaintiff’s loss.

10. The first defendant made amendments to essentially the same effect to its defence on 6 August 2021.

11. On 10 August 2021, the third defendant also amended its defence to plead that if it had trespassed (which was denied), then it was a several tortfeasor and therefore only liable for any damage that it may have severally caused to the plaintiff. The third defendant had pleaded a proportionate liability defence at an earlier stage of the proceedings.

12. In its statement of issues served on the last business day prior to the commencement of the final hearing, the plaintiff stated the following issue:

“41.    Whether the defendants’ conduct was part of an orchestrated tipping event on the Site which the defendants took part in knowing that they were not lawfully entitled or authorised to use the Site for tipping waste and material on the Site on 13 and 14 July 2018. If so, what bearing this has for the defendants’ joint or several liability for the whole of the remediation costs of removing the tipped material left on the Site during that tipping event.”

13. The plaintiff’s written submissions, also served on the last business day before the commencement of the final hearing stated at paragraph 22:

“The defendants’ evidence, if accepted, will seek to establish a highly organized operation by fraudsters directing where truckloads of material should be dumped with machinery being used to spread dumped material across the Site.  The defendants' attempt to rely on these facts to colour their involvement as innocent operators duped into bringing VENM only to the Site will be shown as being more consistent with the defendants having acted in concert to take advantage of an organised opportunity to dump on Rove's land to damage Rove's land, all without Rove's knowledge and without Rove's consent.”

14. The plaintiff’s written submissions also stated, at paragraphs 31 and 32:

“Trespass will be found when injury flows immediately form the defendant’s acts.  Here, the materials imported to the Site by the defendants must be viewed as part of an entire operation with their individual loads materially contributing to the overall requirement for removal of the material brought to the Site by the tipping event on 13 and 14 July 2018. 

The defendants' liability is joint and several in this regard.  In other words, each defendant's dumped material materially contributed to the overall need to remediate the site in its entirety.”

15. It was not clear to me from those submissions whether the plaintiff was submitting that:

1. each defendant’s alleged conduct materially contributed to the alleged need to remove the whole of the dumped material, so that each defendant was liable for the whole of the loss claimed on the basis that its individual conduct caused that loss; or

2. each defendant was liable for the whole of the loss on the basis that the defendants were joint tortfeasors because they had acted in concert in the manner referred to in the submissions; or

3. both.

16. During the plaintiff’s opening submissions on the afternoon of the first day of the hearing, I asked senior counsel for the plaintiff to clarify that position. The response was: "We say that there was a concert between the defendants as part of an overall illegal tipping operation." 

17. I questioned whether that had been pleaded. The response was, “we don’t plead it per se” but that it had been part of the plaintiff’s case from the outset that the conduct of all defendants was part of one overall illegal tipping operation. Senior counsel for the plaintiff submitted that the defendants must have understood this because they relied on the concurrent wrongdoer provisions of the Civil Liability Act.

18. The plaintiff’s statement of claim contained no allegation that any defendant had knowledge of the conduct of any other defendant. It contained no allegation that any defendant was acting in concert with any other defendant or with a common design with any other defendant. Such allegations would be central to any claim that the defendants were joint tortfeasors acting in concert in committing one tort, as opposed to several tortfeasors acting separately and causing the same damage: Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 580-581 per Brennan CJ, Dawson and Toohey JJ.

19. The plaintiff’s claim for damages was not expressed in terms that indicated that the plaintiff claimed that each defendant was liable for the whole of the loss on the basis that they were all joint tortfeasors. As I have already explained, the fact that the plaintiff was claiming the whole of the loss from each defendant became apparent only through the manner in which the plaintiff’s lay and expert evidence in relation to the loss was prepared. That prompted three of the defendants to take the point that they are, on their case, several tortfeasors (if they are tortfeasors at all) responsible only for such damage (if any) that they have individually caused if they trespassed on the plaintiff’s land (which they deny), or alternatively that that the other defendants were concurrent wrongdoers in respect of a single apportionable claim within the meaning of s 34 of the Civil Liability Act.

20. If the plaintiff wished to prosecute a claim against the defendants as joint tortfeasors by reason of an alleged common design to carry out an illegal dumping operation on the plaintiff’s land, it was incumbent on the plaintiff to do so expressly, and to plead the material facts on which it relies in support of the alleged common design. By failing to do so, the plaintiff has failed to give the defendants the notice to which they are entitled, as a matter of procedural fairness, of the case that they have to meet. I note that, by reason of the definition of “concurrent wrongdoer” in s 34 of the Civil Liability Act, the proportionate liability defences do not reflect an acknowledgment on the part of the defendants that the plaintiff was alleging that the defendants were joint tortfeasors.

21. Shortly after the commencement of the second day of the hearing, the plaintiff circulated a proposed amendment to its statement of claim.

22. The proposed amendment would insert the following additional paragraphs into the claim:

33    “Each defendant entered upon the property taking part in an unlawful and unauthorised ‘tipping event’ on 13 and 14 July 2021 [sic]:   
(a) knowingly doing so,   
(b) aiding, counselling or abetting one or more of the other defendants or others to do so as wel   l
(c) knowing or suspecting that their actions in tipping waste and contaminated material on the plaintiff’s property would result in the owner of the property having to remove waste and materials of unknown origin and composition from the property, including the waste and material tipped on the property by each defendant.

34    In these circumstances each of the defendants:   
(a) either acted in concert with the other defendants and third persons to take part in the unlawful tipping event on the plaintiff’s property on 13 and 14 July 2018, and further or alternatively, aiding, counselling and abetting each other defendant as well as other persons that were part of that tipping event (the Third Parties), and   
(b) by this conduct an implied agreement arose between each defendant and all other defendants and the Third Parties to use the plaintiff’s property as an unauthorised tip to dispose of waste and contaminated materials upon the property, and   
(c) each defendant is jointly and severally liable for the damage which the plaintiff suffered as a result of the unlawful disposal of waste and contaminated fill on the plaintiff’s property on 13 and 14 July 2018.”

23. Although this is not stated in the proposed amended statement of claim, the plaintiff says that it seeks leave to amend only as against the first, third, fifth, seventh and eighth defendants and not as against the defendants who have played no active role in the proceedings.

24. Despite stating again that the plaintiff has intended from the outset to prosecute a claim against the defendants as joint tortfeasors by reason of the alleged common design referred to in the proposed paragraphs 33 and 34, the application for leave to amend was not accompanied by any evidence explaining the plaintiff’s delay in pleading that case against the defendants. Nor was any explanation offered in the submissions made by senior counsel for the plaintiff.

25. The first, third, fifth, seventh and eighth defendants oppose leave being granted to the plaintiff to make the proposed amendments.

26. In support of the amendment application, the plaintiff submitted that the defendants have always understood that this was the case that the plaintiff was running, referring to the proportionate liability defences and certain paragraphs in the submissions of the eighth defendant relating to the question of joint versus several liability. The plaintiff submitted that the matters on which it will rely as evidencing the alleged common design emerge from the defendants’ own evidence and the only issue raised by the amendment is the legal characterisation of those matters. Senior counsel for the plaintiff also doubted the defendants’ submissions that they would wish to adduce additional evidence and take certain other additional steps in the proceedings if leave to amend were granted, such that the amendments (if allowed) would not necessitate an adjournment of the hearing.

27. I reject the plaintiff’s submission that the defendants have always understood that the plaintiff was running the case that it now wishes to plead. For the reasons I have already explained, the pleading on the part of some defendants that their liability was several rather than joint, and their reliance on an alternative proportionate liability defence, understood in the context in which those procedural developments occurred, provide no support for the plaintiff’s submission. The passages of the eighth defendant’s submissions on which the plaintiff relied appear to me to be plainly directed to the several liability issue pleaded in its defence. Moreover, the notion that the plaintiff intended to run a case of joint liability on the basis of an alleged common design, yet failed to plead even that the different defendants were aware of one another’s alleged trespasses, but that the alleged common design should nevertheless have been obvious to the defendants, strains credibility.

28. I accept the defendants’ submissions that even the amendment now proposed is more in the nature of a submission than a pleading of the material facts relied on in support of the allegation that the defendants acted in concert with one another and unidentified third parties. It is no answer for the plaintiff to point globally to the defendants’ evidence and make the general assertion that the matters relied on emerge from that evidence. The defendants are entitled to know precisely the case they are required to meet. For completeness, I note that the defendants maintain that their evidence does not support any alleged common design and the plaintiff’s general assertion (even if it would otherwise be adequate, and it is not) does not assist the defendants to identify the case that they are to meet.

29. Given the lack of detail in the proposed amendments, and because they were dealing with an amendment application on the run during the second day of the hearing, the defendants understandably faced some difficulty in identifying with precision the nature of any further evidence that they would wish to call or steps they would wish to take if leave to amend were granted. The steps they would wish to take were, however, sufficiently identified for me to accept that they would wish to call evidence as to the lack of communications between defendants and lack of connection between defendants, including in the form of phone and email records that they are likely to wish to subpoena, but also involving additional lay evidence. Those steps will naturally take time and therefore, would require an adjournment. It is no answer, in my opinion, for the plaintiff to say that it will not take any point about failure to tender any phone or email records or failure to call the proposed additional lay witnesses. In a case where credibility issues may loom large, the defendants should not be deprived of the opportunity to call corroborative evidence.

30. The eighth defendant submitted that, if the proposed amendments are allowed, it would also wish to consider claims for contribution against other defendants, and potentially additional third parties who may have deposited material on the plaintiff’s land on 13 and 14 July 2018. As I understand the submission, claims for contribution would be considered against the risk that the plaintiff were to succeed in establishing a common design to undertake illegal dumping and the provisions of ss 34 and 35 of the Civil Liability Act were held to be inapplicable in those circumstances on the basis that the claim was not for loss arising from a failure to take reasonable care. Counsel for the eighth defendant submitted that those investigative steps would take time and are a further reason why an adjournment would be required if leave to amend were granted. It is no answer for the plaintiff to submit, as it did, that the eighth defendant should rely on the investigations already undertaken by the plaintiff, which failed to identify the other persons said to have deposited material on the plaintiff’s land. The eighth defendant should not be deprived of the opportunity to undertake its own investigations for the purpose of its own defence.

31. For those reasons, I accept the defendants’ submissions that the hearing would need to be adjourned if leave to amend were granted. With one exception, the defendants did not suggest that the prejudice caused by an adjournment could not be cured by a costs order, although they emphasised that they would be applying for an increase in the security for costs already provided by the plaintiff in that event.

32. The exception is that a witness important to the first defendant’s defence is moving overseas permanently at the end of this week to what I am told is a remote area in Greece. The witness is a former employee of the first defendant, who drove the first defendant’s truck to the plaintiff’s site on one of the occasions in question. The first defendant is concerned as to whether it can continue to rely on the witness’s willingness to give evidence once he has moved overseas, and its ability to enforce a subpoena if the witness is not willing to give evidence. There is a further concern about the practicality of the witness being able to give evidence remotely due to the unknown availability and quality of the necessary internet connection in the area to which he is moving.

23. Taking all of the above matters into account, I do not consider that it would be consistent with the overriding purpose and the dictates of justice to grant leave to the plaintiff to amend the statement of claim by inserting the proposed paragraphs 33 and 34: Civil Procedure Act 5005 (NSW), ss 56-58 and 64. The plaintiff had ample opportunity to plead from the outset the case that it now says it has always wanted to run. There is no explanation for its failure to do so. For the reasons already given, I reject the plaintiff’s submissions that the defendants have always known that the plaintiff was intending the run the case referred to in its opening submissions and in paragraph 33 and 34 of the proposed amended statement of claim. In any event, that case is not adequately pleaded even now in the proposed amended statement of claim. Even if some further drafting work could be undertaken to address that problem, I accept the defendants’ submissions that the hearing would need to be adjourned if the plaintiff were granted leave to amend. An adjournment and an order for the costs thrown away by reason of the adjournment, would not cure all of the prejudice to the defendants. In addition to the specific issue raised by the first defendant in relation to one of its witnesses, there is the irreparable element of unfair prejudice involved in unnecessarily delaying proceedings referred to by French CJ in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]. Moreover, an adjournment would result in the waste of the public resources of the court. That inefficiency is particularly undesirable in circumstances of this case where a final hearing of this matter has already been vacated on one occasion earlier this year as a result of the plaintiff’s delay in serving its evidence: Aon, supra, at [5] (French CJ) and [98]-103] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

24. For all of those reasons, the plaintiff’s application for leave to amend is refused.

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Decision last updated: 06 September 2021