Weng v NSW Demo & Exca Services Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Weng v NSW Demo & Exca Services Pty Ltd [2024] NSWDC 101

Hearing dates:

16 February 2024

Date of orders:

04 March 2024

Decision date:

04 March 2024

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1)   Defendant’s Notice of Motion dismissed.

(2)   Liberty to the parties to bring in Short Minutes of Order for an exchange of written submissions for the costs of the Notice of Motion to be determined by Gibson DCJ “on the papers”.

(3)   Proceedings stood over before the List Judge on 8 March 2024 for allocation of a hearing date for the assessment of damages.

(4)   Exhibits retained until further order.

Catchwords:

JUDGMENTS AND ORDERS – excavating company starts to demolish wrong house – plaintiffs obtain default judgment – application to set aside judgment pursuant to UCPR r 36.15 on the basis of typographical errors and lack of English comprehension by the deponents in the plaintiff’s application for default judgment – whether the proposed defence revealed any defence on the merits – defendant’s notice of motion dismissed – indemnity costs ordered

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Interpretation Act 1987 (Cth), s 80(1)

Uniform Civil Procedure Rules 2005 (NSW), rr 16.3, 36.15, 36.16, 42.2

Cases Cited:

Arnold v Forsythe [2012] NSWCA 18

Choi v Secretary, Department of Communities and Justice (No 2) [2022] NSWCA 264

Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302

National Australia Bank v Priestley (No 3) [2012] NSWSC 1171

Oshlack v Richmond River Council (1998) 193 CLR 72

Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190

Turner v O’Bryan-Turner [2019] NSWSC 1340

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Zu Wang Weng (First Plaintiff/Respondent)
De Qin Fang (Second Plaintiff/Respondent)
NSW Demo & Exca Services Pty Ltd (Defendant/Applicant)

Representation:

Counsel:
Mr E Vuu (Defendant/Applicant)
Mr N Li (Plaintiffs/Respondents)

Solicitors:
McGirr & Associates (Defendant/Applicant)
Longton Legal (Plaintiffs/Respondents)

File Number(s):

2023/00190239

Publication restriction:

Nil

Judgment

The circumstances leading to these proceedings

1. The plaintiffs are owners of a property at 40 Station Street West Ryde. They leased the house on the property to a tenant for a six-month period between June and December 2021.

2. The defendant is a company which carries out excavation services.

3. On or about 5 July 2021, the defendant company, by its servants or agents, “wrongfully” (paragraph 8 of the statement of claim) came onto the property without the consent of either the plaintiffs or the tenant. The workmen then began to carry out demolition work. After they had damaged or demolished two walls and one door, they made what must have been a dreadful discovery for all concerned: they were at the wrong house. Not only were they trespassers, but they had caused what the plaintiffs claim was considerable damage to the property. The tenant terminated the lease more or less on that same day, on the basis that the property was no longer fit for the purpose of supplying a habitable…