Southern Region SLSA Helicopter Rescue Service Pty Ltd v New South Wales Golf Club Co Ltd t/as New South Wales Golf Club

[2021] NSWSC 1493

Supreme Court

New South Wales

Medium Neutral Citation:

Southern Region SLSA Helicopter Rescue Service Pty Ltd v New South Wales Golf Club Co Ltd t/as New South Wales Golf Club [2021] NSWSC 1493

Hearing dates:

11 November 2021

Decision date:

19 November 2021

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Proposed amendments allowed in part; proposed further evidence allowed in part.

Catchwords:

CIVIL PROCEDURE – application to amend List Response and serve further evidence

Legislation Cited:

Design and Building Practitioners Act 2020 (NSW)

Limitation Act 1969 (NSW)

Category:

Procedural rulings

Parties:

Southern Region SLSA Helicopter Rescue Service Pty Ltd (Plaintiff/Respondent)
New South Wales Golf Club Co Ltd trading as New South Wales Golf Club (Defendant/Applicant)

Representation:

Counsel:
P Bambagiotti (Plaintiff/Respondent)
B Le Plastrier (Defendant/Applicant)

Solicitors:
Mills Oakley (Plaintiff/Respondent)
McCabes Lawyers (Defendant/Applicant)

File Number(s):

2017/111417

Judgment

1. On 11 November 2021, I heard argument in relation to the defendant’s Notice of Motion filed 22 October 2021 in which it seeks leave to file and serve:

1. an Amended List Response;

2. an affidavit of David Burton made on 4 August 2021; and

3. an affidavit of Gary Dempsey made on 5 August 2021.

2. During the course of argument, I indicated the orders I proposed to make and said that I would publish my reasons later.

3. These are those reasons.

4. The plaintiff, Southern Region SLSA Helicopter Rescue Service Pty Ltd owns land in La Perouse from which it operates a helicopter rescue service.

5. The defendant, New South Wales Golf Club Co Ltd (the “Club”) owns the adjoining land on which a golf course is located.

6. In 2006, a helicopter hanger and crew accommodation building was constructed on the plaintiff’s land, together with a retaining wall designed to retain some 5.5 m of earth lying between the wall and the Club’s golf course.

7. On 14 June 2012, the wall failed causing damage to the plaintiff’s building.

8. The plaintiff contends that the wall failed by reason of “landscaping work” that the Club effected in late 2007 or early 2008 designed to shield the plaintiff’s premises from the view of Club patrons.

9. The plaintiff brings its case in trespass and negligence, including alleged breach of the statutory duty referred to in s 37 of the Design and Building Practitioners Act 2020 (NSW), and in nuisance.

10. The proceedings have been on foot since the middle of 2017. Very shortly after the proceedings were commenced, an order was made referring the whole of the proceedings out for expert determination. The current referee is Mr George Inatey QC. The reference has not yet taken place.

Proposed amendment to the List Response

Proposed amendment to cl C9(b)(ii)

11. Currently, cl C9(b) of the Club’s List Response provides:

“Following a number of meetings and discussions between Mr Gary Dempsey and Mr David Burton for the Defendant, and Mr Weir for the Plaintiff, the Plaintiff:

(i)    consented to the Landscaping Work, subject only to the proviso that the mound be situated at least one metre from the safety fence erected between the top of the Wall and the Defendant’s land;

(ii)    offered to and did pay for the cost of 50% of the native plants to be planted on the mounds;

(iii)    consented to the mounds being located across both the Plaintiff’s and Defendant’s land; and

(iv)    consented to vehicular access to be granted to the Defendant across the Plaintiff’s land for transport of the sand and materials for the Landscaping Work.”

12. The Club seeks to amend sub-cl C9(b)(ii) so that it reads:

“offered to and did pay for the full cost of the native plants to be planted on the mounds”.

13. The basis on which the Club wishes to make this allegation is an invoice sent by the Club to “Prince Henry Project Office/Landcom” on 30 September 2008.

14. That invoice is in the form attached. Tax Invoice dated 30 September 2008 (30049, pdf)

15. Mr Le Plastrier, who appeared for the Club, accepted that the only basis on which the Club would contend, as is proposed by the amendment, that the plaintiff “offered to and did pay for the full cost” of the planting of the native plants on the mounds was the submission by the Club of the invoice to Landcom, and the payment of that invoice by Landcom. Landcom was engaged on behalf of the New South Wales Government to effect the works on the plaintiff’s land.

16. On that basis I propose to grant leave to the Club to amend sub-cl C9(b)(ii) as proposed.

Proposed amendment to cl C9(c)

17. Clause C9(c) of the List Response is currently in this form:

“The Landscaping Work was carried out in accordance with the Plaintiff’s requirements and the mound was situated at least one meter away from the safety fence which itself was situated inside the top of the Wall including the area filled with granular filling.”

18. The Club seeks to amend this paragraph so that it reads:

“The Landscaping Work was carried out:

(i) in accordance with the Plaintiff’s requirements by National Trust, in relation to the purchase of the plants and planting;

(ii) and the mound which were situated at least one metre away from the safety fence which itself was situated inside the top of the Wall including the area filled with granular filling, in accordance with the Plaintiff’s requirements by the defendant, in relation to the creation of the Mounds.”

19. The basis on which the Club wishes to make the further allegation concerning the role of the National Trust is the reference to the National Trust in the invoice to which I have referred.

20. No explanation was offered by the Club as to why this amendment has not been sought earlier.

21. In relation to that proposed amendment, the plaintiff’s solicitor, Mr Maurice Lynch has deposed:

“Had the plaintiff known that it was the National Trust that purchased and planted the plants, or known it was being advanced against it that the Plaintiff had failed to undertake any or sufficient investigations prior to approving the landscaping work (which it did not do) or ensure the wall was fit for the landscaping work (it had no obligation to do so), it would have considered pursuing cross claims against the National Trust and or others which it has not done so and now cannot do. This is because the incident which gives rise to the Plaintiff’s claim occurred on 14 June 2012 and any such claims are hopelessly out of time and statute barred pursuant to section 14 of the Limitation Act 1969 (NSW)”.

22. That evidence persuaded me that I should not permit the Club to make this amendment.

23. At the hearing before the referee, it will be open to the Club to tender the invoice and to submit, by reference to the current form of cl C9(c), that there was some involvement by the National Trust.

24. That will be a matter for the referee. It is not a sufficient reason to allow the amendment proposed.

Proposed amendment to cl C24

25. Clause C24 in the current List Response in the following terms:

“In the alternative, the Defendant says that in so far as any damage was suffered by the Plaintiff as alleged (which is denied) it was caused or contributed to by the Plaintiff’s own negligence.

Particulars of Contributory negligence

(a) The Defendant repeats the particulars under paragraph 23 above.”

26. That paragraph refers to cl C23 of the List Response which contends that:

“… the real cause of the failure of the retaining wall was the failure by the Plaintiff to design and construct a retaining wall and drainage system which was suitable and fit for the purpose intended.”

27. The Club proposes to amend cl C24 so that it reads:

“In the alternative, the Defendant says that in so far as any damage was suffered by the Plaintiff as alleged (which is denied) it was caused or contributed to by the Plaintiff’s own negligence.

Particulars of Contributory negligence

(a)    The Defendant repeats paragraph 9 above and the particulars under paragraph 23 above.

(aa)    The Plaintiff failed to undertake any, or sufficient, investigations prior to approving the Landscaping Work, to ensure the Wall was fit for the Landscaping Work.”

28. That unparticularised and very general allegation widens substantially the nature of the case that the Club seeks to make concerning the plaintiff’s alleged contribution to the collapse of the retaining wall.

29. Mr Lynch deposed:

“(c)    the plaintiff’s evidence closed on 26 July 2018 and it has not had to make any investigations in respect of any lay evidence in over three years, let alone the new allegations raised in paragraph 24 (aa.) of the Amended List Response which relates to the construction of a wall and landscape moulds in late 2007 and early 2008 which is over 12 years ago. Accordingly, there is unlikely to be any records or witness recollection of the matters referred to in this paragraph to enable the Plaintiff to appropriately and adequately deal with them;

(d)   the allegations at paragraph 24 (aa) are a bald allegation advanced without any material facts or particulars, and also not supported by the current evidence in the proceedings”.

30. In light of this evidence, my conclusion was that it would not be fair to the plaintiff to permit the Club, at this late stage, to make the amendment proposed.

Other proposed amendments to the List Response

31. The Club proposes certain other minor amendments to its List Response which, as I understood it, are not opposed by the plaintiff.

The proposed evidence of Mr Burton and Mr Dempsey

32. As developed Mr Le Plastrier in oral submissions, the only parts of the affidavits of Mr Burton and Mr Dempsey that the Club pressed were those that, in effect, dealt with an allegation by one of the plaintiff’s witnesses, Mr Peter Weir. Mr Weir was the project and construction manager of the work on the plaintiff’s site, having been appointed by Landcom (to whom the invoice to which I have referred was addressed).

33. In his affidavit, Mr Weir gives an account of a meeting on 12 February 2008 which, the plaintiff alleges, a “warning” was given on behalf of the plaintiff to the Club that a stormwater control system was “integral to the design and use of the wall and must not be affected”.

34. Mr Burton and Mr Dempsey responded to Mr Weir’s evidence by, in effect, deposing that neither of them recalled receiving any such warning from Mr Weir.

35. In those circumstances, I propose to allow pars 1 of each affidavit, pars 2 and 23 of Mr Dempsey’s affidavit, and pars 37 and 38 of Mr Burton’s affidavit.

36. Otherwise, each affidavit does no more than annex documents and make inadmissible assertions. I do not propose to allow the Club to adduce that evidence from these witnesses.

Conclusion

37. The parties should confer and agree on the orders necessary to give effect to these reasons.

38. In the meantime, I have directed that the matter be stood over for further directions on 19 November 2021 and that the parties confer and agree on the further directions that will be needed in order to ready the matter for hearing by Mr Inatey QC.

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Decision last updated: 19 November 2021