Sansom Nominees Pty Ltd v Clarke
[2009] WADC 182
•2 DECEMBER 2009
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SANSOM NOMINEES PTY LTD -v- CLARKE [2009] WADC 182
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 23 NOVEMBER 2009
DELIVERED : 2 DECEMBER 2009
FILE NO/S: CIV 174 of 2007
BETWEEN: SANSOM NOMINEES PTY LTD
Plaintiff
AND
GREGG ANTHONY CLARKE
Defendant
Catchwords:
Property damage - Default judgment - Assessment of damages
Legislation:
Nil
Result:
Damages assessed
Representation:
Counsel:
Plaintiff: Mr M O'Sullivan
Defendant: In person
Solicitors:
Plaintiff: SRB Legal
Defendant: Not applicable
Case(s) referred to in judgment(s):
Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185
Evans v Balog [1976] 1 NSWLR 36
Harbutt's Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] 1 QB 447; [1970] 2 WLR 198; [1970] 1 All ER 225
Hole & Son (Sayers Common) Ltd v Harrisons of Thurnscoe Ltd [1973] 1 Lloyd's Rep 345
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25
Registrar of Titles v Spencer (1909) 9 CLR 641
Rust v Victoria Graving Dock Co & London & St Katharine Graving Dock Co (1887) 36 Ch D 113
Spicer v Smee [1946] 1 All ER 489
Taylor v Auto Trade Supply Ltd; Blair & Kent Ltd v Awatea Holding Ltd [1972] NZLR 102
PRINCIPAL REGISTRAR GETHING: By action commenced on 30 January 2007, the plaintiff claimed damages against the defendant arising out of an accident on 9 May 2006 in which a truck collided with an awning attached to the plaintiff's premises on Hay Street, Perth. The truck was alleged to have been driven by the defendant or by an employee for whom he was vicariously liable.
On 3 December 2007 the Court made an order for default judgment in favour of the plaintiff for damages to be assessed, the defendant not having entered a memorandum of appearance.
The plaintiff subsequently filed an application seeking programming orders for the assessment of the damages. By order made on 8 January 2008, the damages payable by the defendant to the plaintiff pursuant to the judgment entered on 3 December 2007 were ordered to be assessed by a Registrar in chambers on affidavit evidence. The plaintiff was ordered to serve on the defendant, not less than 42 days prior to that hearing:
(a)a copy of the order dated 8 January 2008;
(b)a copy of any affidavits to be relied on in the assessments; and
(c)a notice setting out the time and date for the assessment hearing.
The defendant was then ordered to file and serve any affidavit in opposition to the assessment not less than 14 days prior to the hearing.
The plaintiff filed three affidavits in support of the assessment. The first affidavit is sworn by Neil Jones, who is a senior commercial claims advisor for Zurich Financial Services Australia Ltd. It was sworn on 20 May 2009. Zurich is the plaintiff's insurer and commenced the action through its right of subrogation. The second affidavit, was sworn on 13 March 2009 by Malcolm Mansfield. Mr Mansfield is an assessor employed by GAB Robins Australia Pty Ltd, Chartered Loss Adjusters. Mr Mansfield was responsible for organising the repairs to the plaintiff's premises. The third affidavit is from a Graham Hopkins, and it was sworn 2 April 2009. Mr Hopkins is a property manager employed by Ross Hughes Property. His affidavit sets out the basis for a loss of rental claim by the plaintiff.
By application dated 22 May 2009, an assessment hearing was listed for 29 July 2009. The assessment hearing was postponed on a number of occasions at the defendant’s request. At a hearing on 21 September 2009, the defendant was represented by a solicitor who advised that efforts were being made to identify the relevant insurer.
At a hearing on 21 September 2009, I made orders listing the assessment hearing for 2 November 2009, with a timetable for the defendant to advise the plaintiff as to which of the deponents of the affidavits the defendant wished to cross‑examine. I also set down a timetable for the defendant to file any affidavit. Pursuant to this timetable, the defendant advised the plaintiff that all three deponents should be available for cross-examination.
On 27 October 2009 the defendant filed an affidavit for the purposes of the assessment.
By consent orders filed and granted on 29 October 2009, the 2 November 2009 listing was vacated and relisted to 23 November 2009.
At the hearing on 23 November 2009, the defendant was unrepresented. There were some issues raised in the defendant's affidavit which I considered ought to be put to the at least one of the deponents. To that end, Mr Mansfield was sworn. I put to Mr Mansfield the issues which the defendant had raised in his affidavit, which I will note in more detail later in these reasons. The defendant then had the opportunity to ask questions of Mr Mansfield. Counsel for Mr Mansfield then had the opportunity to ask questions.
Principles
The general principle governing an award of damages in tort is compensation. The plaintiff is entitled to "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation": Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39. See also: Registrar of Titles v Spencer (1909) 9 CLR 641 at 645; Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185 at 191. Where the damage is to land, the plaintiff if entitled to the cost of repair or full reinstatement of the land, including premises on the land: Harbutt's Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] 1 QB 447; [1970] 2 WLR 198; [1970] 1 All ER 225; Evans v Balog[1976] 1 NSWLR 36.
A plaintiff can also claim consequential loss flowing from the damage to its fixtures, including loss of rent: Rust v Victoria Graving Dock Co & London & St Katharine Graving Dock Co (1887) 36 Ch D 113; Spicer v Smee [1946] 1 All ER 489; Taylor v Auto Trade Supply Ltd; Blair & Kent Ltd v Awatea Holding Ltd [1972] NZLR 102; Hole & Son (Sayers Common) Ltd v Harrisons of Thurnscoe Ltd [1973] 1 Lloyd's Rep 345.
Evidence – repair and replacement
The relevant accident occurred on 9 May 2006. Mr Mansfield deposed that he inspected the premises on or about 11 May 2006. He saw damage to an awning of the building consistent with it having been impacted by a motor vehicle. The damage to the awning was substantial so he arranged for an engineer to carry out an inspection to determine what temporary works had to be completed due to public safety concerns, and also to provide a scope of work for the anticipated repairs. The engineers he engaged, MCS Group Holdings Pty Ltd ("MCS"), found the awning to be unsafe and too badly damaged to be repaired. Consequently, the structure required demolition. Because of public safety concerns, urgent arrangements were made through Arix Australia to secure, then dismantle and remove, the awning. The removal was undertaken on 14 May 2006.
Prior to the commencement of the repairs, the City of Perth required a site plan to be submitted showing the location of the building and its positioning as compared to the overall block. This was provided by Culture Pilots Architectural Design.
Mr Mansfield obtained two quotations from builders. The lower of the two quotations was chosen. The builder was Barclays Group Pty Ltd. The final cost of the repairs to the premises was in the amount of $52,158.48. Because of space limitations, the scaffolding for the job had to be set up on a parking bay, which had to be rented from the City of Perth.
In his questions of Mr Mansfield and submissions to me, the defendant raised the issue of whether the building costs were reasonable. The defendant's view was that, to replace an awning, the amounts charged were excessive.
No contrary expert evidence or building evidence was called by the defendant. In my view, the evidence of Mr Mansfield sets out a rational basis for the steps he went through to arrange for the removal and replacement of the awning. Given the safety concerns identified by MCS, it was reasonable for the awning to be removed and replaced at short notice. It follows that it was reasonable for this not to have been done by way of obtaining quotations. By contrast, the actual repair work was done by obtaining two quotations, and choosing the lower of the two.
The defendant in his affidavit deposes that it is his recollection that the awning had many impact marks around the place where it is alleged that the truck touched the awning. It was apparent to him that these were from prior occasions where vehicles had hit the awning.
The application before me is purely for the assessment of damages. Liability has been determined. No application has been made to set aside the default judgment. Accordingly, I can only proceed on the basis that the defendant alone is liable for the cost of removing and replacing the awning. It is sufficient for me to observe that but for the defendant's truck striking the awning, there would not have been any need to remove and replace it.
Mr Jones' evidence essentially parallels that of Mr Mansfield. In particular, he deposes to the payment of all relevant invoices. The invoices paid are set out in the following table, and totals some $64,699.43.
Date
Payee
Services
Amount
15 June 2006
MCS Group Holdings Pty Ltd
Engineers – scope of temporary works and scope of final works and
$468.00
20 June 2006
MCS Group Holdings Pty Ltd
Engineers – scope of temporary works and scope of final works and
$1,192.00
15 January 2007
MCS Group Holdings Pty Ltd
Engineers – scope of temporary works and scope of final works and
$353.75
14 July 2007
Arrix Australia
Removal of awning
$7,690.00
19 February 2007
Culture Pilots Architectural Design
Site plan
$1000.00
16 April 2007
Barclays Group Pty Ltd
Rental parking bay for scaffold
$1,500.00
16 April 2007
Barclays Group Pty Ltd
Repairs
$52,158.48
8 March 2007
GAB Robins Loss Adjustors
Supervision of repairs
$1,837.20
Sub total
$64,699.43
I find that each of these amounts was incurred in removing and replacing the awning.
Evidence – loss of rent claim
The plaintiff also claims the amount of $40,384.72 by way of loss of two months rent and outgoings.
The loss of rental claim is dealt with in Mr Hopkins' affidavit. He was responsible for the rental management of the premises in question owned by the plaintiff.
Mr Hopkins' affidavit annexes the lease. The rent payable under the lease is $70,916.66 per month.
The lease was entered into on 24 July 2006. The lease rent was due to commence on 1 November 2006.
Mr Hopkins deposes to the fact that the tenant could not enjoy vacant possession and quiet enjoyment from 1 November 2006 due to the uncompleted repairs to the awning. As a result of damage caused, the damage to the awning and subsequent repairs, the plaintiff agreed to postpone the date by which the rent was to commence under the lease agreement to 1 January 2007. Mr Hopkins further deposes that in the two months the premises could not attract rent, the plaintiff suffered losses comprising rent in the amount of $35,833.32 and outgoings of $4,551.40, totalling $40,384.72.
The defendant in his submissions and questioning of Mr Mansfield raised the issue of whether two months was a reasonable period of time to have elapsed between when the awning was hit and when repairs were completed. In actual fact, this period was more than 6 months, from 9 May 2006 to late 2006, with rent starting from 1 January 2007.
There is no evidence before me that the repairs took an unreasonably long period of time. The claim for loss of rent is rationally connected to the replacement of the awning. The plaintiff has satisfied me that it is entitled to damages for loss of rent and outgoings.
Assessment
For the reasons set out above, I assess the damages at $105,084.15 comprising:
Removal and repair of the awning $ 64,699.43
Loss of rent and outgoings $ 40,384.72
Total$105,084.15
I will hear from counsel as to the final orders.
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