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Sydney Water v Asset Geotechnical Engineering

Sydney Water v Asset Geotechnical Engineering

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Case Copied 6 September 2013 73 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Sydney Water v Asset Geotechnical Engineering & Ors [2013] NSWSC 1274
Hearing dates: 30, 31 July 2012; 1, 2, 3, 6, 7, 8, 9,10 August 2012
Decision date: 06 September 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Judgment for the plaintiff against the first defendant in the sum of $643,517.55;
(2) Judgment for the plaintiff against the second and third defendants jointly in the sum of $99,002.70;
(3) Judgment for the plaintiff against the fourth defendant in the sum of $247,506.75;
(4) Judgment in favour of the fourth cross-defendant to the third cross claim;
(5) Cross claims otherwise dismissed with no order as to costs;
(6) The first defendant to pay the costs of the fourth cross defendant to the third cross claim on the ordinary basis forthwith after they have been agreed or assessed;
(7) The defendants to pay the plaintiff's costs of the proceedings pro rata on the ordinary basis forthwith after they have been agreed or assessed;
(8) Liberty to apply in respect of my assessment of interest and for any special order as to costs to be exercised by notice of motion filed within 14 days of today;
(9) Any motion filed pursuant to Order 8 may be listed before me for directions at 9:30am on Friday, 11th October 2013.

Catchwords: TORTS - negligence - landslip at building site - damage caused to sewer main owned by the plaintiff - whether geotechnical engineer, occupiers, principal contractor or excavator liable - apportionable claim covered by Part 4 Civil Liability Act 2002 (NSW) - whether local council is a concurrent wrongdoer under s35(3) Civil Liability Act 2002 (NSW)
REAL PROPERTY - statutory covenant - whether second and third defendants liable for breach of statutory covenant created by s44 Sydney Water Act 1994 (NSW) - whether claim is an apportionable claim
Legislation Cited: -Civil Procedure Act 2005 (NSW)
-Civil Liability Act 2002 (NSW)
-Environmental Planning and Assessment Regulation 2000 (NSW)
-Home Building Act 1989 (NSW)
-Law Reform Miscellaneous Provisions Act 1946 (NSW)
-Sydney Water Act 1994 (NSW)
-Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: -Baden Cranes Pty Ltd v Smith [2013] NSWCA 136
-Bennett v Minister of Community Welfare (1992) 176 CLR 408
-Bryan v Maloney [1995] HCA 17; 182 CLR 609
-Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
-De Pasquale Bros Pty Ltd v Cavanagh Biggs & Partners Pty Ltd [1999] QSC 171; Aust Torts Reports 81-521
-Donoghue v Stevenson (1932) AC 562
-Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195
-Environment Protection Authority v N (1992) 26 NSWLR 352
-George v Webb [2011] NSWSC 1608
-Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 87 ALJR 505
-Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638
-March v E & MH Stramare Pty Ltd

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.

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Details

Case: [2013] NSWSC 1274
Decision Date: 06 September 2013

CaseChat Overview and Summary

The dispute in Sydney Water v Asset Geotechnical Engineering involved Sydney Water as the plaintiff against Asset Geotechnical Engineering, along with several other defendants. The plaintiff sought compensation for damage to a sewer main caused by a landslip at a building site. The plaintiff claimed that the landslip was due to the negligence of the geotechnical engineer, the occupiers, the principal contractor, and the excavator. The court was tasked with determining the liability of each defendant and whether the local council was a concurrent wrongdoer under section 35(3) of the Civil Liability Act 2002 (NSW).

The key legal issues before the court were whether the geotechnical engineer, the occupiers, the principal contractor, or the excavator were liable for the damage caused to the sewer main, and if so, how liability should be apportioned. Additionally, the court had to consider whether the claim against the second and third defendants for breach of a statutory covenant under section 44 of the Sydney Water Act 1994 (NSW) was an apportionable claim under the Civil Liability Act 2002 (NSW). The court also needed to determine whether the local council was a concurrent wrongdoer.

In its decision, the court held that the geotechnical engineer was not liable for the damage as they had not breached their duty of care. The court found that the occupiers and the principal contractor were jointly and severally liable for the damage caused to the sewer main. The excavator was found to be not liable due to their exclusion from the site. The court further held that the local council was not a concurrent wrongdoer under section 35(3) of the Civil Liability Act 2002 (NSW). The court also determined that the claim against the second and third defendants for breach of the statutory covenant was an apportionable claim. Consequently, the occupiers and the principal contractor were ordered to pay damages to the plaintiff, and the claim against the local council was dismissed.

Orders