Woolhouse v The Owners of 180 Camboon Road Strata Plan 27284 - [2002] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WOOLHOUSE -v- THE OWNERS OF 180 CAMBOON ROAD STRATA PLAN 27284 & ANOR [2002] WADC 25

CORAM: BLAXELL DCJ

HEARD: 3 DECEMBER 2001

DELIVERED : 12 FEBRUARY 2002

FILE NO/S: CIV 955 of 2000

BETWEEN: GRAEME RUSSELL WOOLHOUSE
Plaintiff
AND
THE OWNERS OF 180 CAMBOON ROAD STRATA PLAN 27284
First Defendant
TORQUAY SECURITIES PTY LTD AS TRUSTEE FOR THE TORQUAY TRUST TRADING AS TORRENS REAL ESTATE (ACN 009 030 335)
Second Defendant

Catchwords:

Practice and procedure - Appeal from refusal of defendants' application for summary judgment - Turns on own facts

Legislation:

Rules of Supreme Court O 16 r 1

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr P G McGowan
First Defendant             :     Ms L G Rafferty
Second Defendant         :     Mr R Guerrini

Solicitors:

Plaintiff:     Paul O'Halloran
First Defendant             :     Greenland Brooksby
Second Defendant         :     Vincent Partners

Case(s) referred to in judgment(s):

Bus v Sydney City Council (1989) 167 CLR 78
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
Shirt v Wyong Shire Council (1980) 146 CLR 40

Case(s) also cited:

Nil

BLAXELL DCJ: This is an appeal from the decisions of a Deputy Registrar refusing applications by each of the defendants for leave to apply for summary judgment, and for summary judgment against the plaintiff. The applications are based on the ground that each defendant has a complete defence to the plaintiff's cause of action.

The nature of the plaintiff's claim

The plaintiff and his wife are the registered proprietors of the Strata Title property known as Unit 2, 180 Camboon Road, Morley. That property is one of a block of four factory units situated at that address which are the subject of Strata Plan 27284. Unit 2 is occupied by Jarowe Pty Ltd which is a family company operated by the plaintiff and his wife, and in respect of which they are directors and employees.
The first defendant is the Strata Company in respect of Strata Plan 27284, and at all material times it had appointed the second defendant as its managing agent in respect of the premises. The responsibilities of the second defendant included the requirement to effect insurance cover on behalf of the first defendant.
The statement of claim asserts that in or about mid‑1996 the front roller door of Unit 2 was damaged when struck by a truck. As a consequence the plaintiff's wife telephoned the second defendant to report the damage and to ask for the damage to be repaired. In response, the second defendant requested Jarowe Pty Ltd "to obtain repair quotations and to forward same to it so that it could arrange and authorise the repairs" (par 6).
The plaintiff further pleads that by letter dated 26 August 1996 Jarowe Pty Ltd forwarded to the second defendant a quotation for repair and advised the second defendant inter alia that the door was not working properly. Thereafter the door was not immediately repaired and the plaintiff's wife telephoned the second defendant not less than three or four times complaining that the door had not been repaired and that the door was not working properly.
The plaintiff claims that on 13 July 1997 he was required to close the roller door so as to secure the premises, but because of the damage, the door did not descend properly. For that reason the plaintiff climbed on to a stepladder and was endeavouring to pull the door down using a rake, when he lost balance and fell to the ground sustaining serious injuries to his left leg. The statement of claim goes on to plead that:
"10.The accident occurred as a consequence of the negligence of the second defendant in:
(a)failing to have the door timeously repaired;
(b)failing to take any steps to investigate or check the damage to the door so as to ascertain whether or not it proved a hazard to persons visiting or present at the premises;
(c)undertaking to have the door repaired as described in paragraph 6 hereof, and failing to do so within a reasonable time.
11.The first defendant is vicariously liable for the negligent act of its duly appointed agent … ."

Further facts appearing from the materials before me

Affidavits have been filed on behalf of the first defendant, the second defendant and by the plaintiff. There are no substantial issues raised by these affidavits, and for the purposes of the present appeal it can be assumed that the facts are largely common ground.
It is clear that the roller door referred to in the statement of claim lies entirely within the boundaries of Strata Lot 2 and does not form part of the common property under the control of the first defendant. Furthermore, at the first annual general meeting of the first defendant held on 13 February 1995 it was unanimously resolved that:
"… the proprietor/proprietors of Lot 2, Unit 2 be responsible for the maintenance and upkeep of all of Lot 2 as on Strata Plan 27284 (253m²) exclusive use."
However, it is also relevant to note that the same meeting was informed that the first defendant had effected insurance cover including "building cover" and legal liability. It is common ground that that insurance cover extended to the lots owned by individual proprietors, and that the policy allowed for a claim to be made in respect of the damage to the roller door on Lot 2. (A claim was in fact made, and the door was in fact repaired subsequent to the plaintiff's accident.)
Although the first defendant contends that it was open for the plaintiff himself to make a claim under the policy pursuant to s 48 of the Insurance Contracts Act, it is not disputed that it was the second defendant who lodged the insurance claim and who ultimately arranged for the roller door to be repaired. This was consistent with its administrative responsibilities as managing agent for the property.
It is also readily apparent that approximately one year expired before these steps were taken. In respect of the intervening period, no issue is taken with the assertion in the plaintiff's affidavit that his "wife kept telephoning the second defendant, and still no one came to repair the roller door".
The plaintiff also states that at all material times Jarowe Pty Ltd was storing expensive pieces of equipment to a value of approximately $400,000 within Lot 2. All of this equipment entered and exited the property via the roller door, and the alarm system for the property would only operate once the door was closed. Accordingly the equipment could only be secured overnight by closing the roller door.
It is also undisputed that after the roller door was damaged in 1996 it would jam "a few times each month" whilst fully open. When jammed it was necessary for someone to stand on a ladder to unjam and shut the door. It was while the plaintiff was undertaking this procedure that he fell and broke his leg.

The applications for leave

As the defendants filed the present applications more than 21 days after appearing to the action they each require the leave of the Court to apply for summary judgment. The affidavits filed on behalf of the defendants assert various reasons for their delay including the collapse of the relevant insurer and the need to instruct new solicitors. There would not appear to be any relevant prejudice to the plaintiff if leave was to be granted, nor has any argument been advanced as to why the same should not occur. In these circumstances I propose to grant each defendant leave to apply for summary judgment.

Whether summary judgment should be granted

Pursuant to O 16 r 1 of the Rules of the Supreme Court I may order summary judgment if I am "satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily". It is for the defendants to show that there is no real question to be tried. If it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the Court to dismiss the action as frivolous and vexatious or an abuse of process (Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 91). In essence the defendants can only succeed with their applications by demonstrating that the case of the plaintiff "is so clearly untenable that it cannot possibly succeed" (General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125, 130).
The defendants' primary contention is that the roller door was entirely within the boundary of Lot 2, and that therefore the plaintiff and his wife (and/or Jarowe Pty Ltd) and not the defendants had the responsibility of repairing it. The plaintiff's submission in response is that the defendants effectively took on the responsibility of repairing the door when the first defendant obtained insurance cover over the building and appointed the second defendant as its managing agent to administer claims under that insurance policy.
I note that pursuant to s 53B of the Strata Titles Act 1985 a strata company for a scheme may determine that it is a function of the company to effect insurance which otherwise would be the responsibility of individual proprietors of lots. In particular the strata company may obtain insurance in respect of any building on a lot in a scheme, or in respect of damage to property, death or bodily injury for which the proprietor of a lot could become liable in damages. When a strata company so determines it also has the role of deciding what occurrences are to be insured against, and the terms on which any insurance is to be obtained.
It is self‑evident that at its first annual general meeting on 13 February 1995, the first defendant made a determination to effect insurance pursuant to s 53B of the Strata Titles Act. This being so, it was obliged pursuant to s 53D (inter alia) to effect and maintain insurance "in respect of damage to property, death, or bodily injury for not less than $5 million …".
It was the second defendant as managing agent who took the necessary steps to obtain such insurance and who ultimately made the claim under the policy and had the roller door repaired. The statement of claim asserts that the second defendant first undertook to make that claim and arrange those repairs in "mid‑1996". It is in this context that the statement of claim alleges that the second defendant (and vicariously the first defendant) was negligent in failing to have the roller door repaired prior to the date when it was.
Without going too deeply into the merits of this aspect of the plaintiff's claim, I consider that it can be reasonably argued that in the circumstances as pleaded the second defendant took on a duty of care to timeously process the insurance claim and arrange for the door to be repaired. It is also open to argument that the first defendant is vicariously liable for any breach of that duty of care. Quite clearly, in the circumstances as pleaded, the mere fact that the roller door was not part of the common property does not provide a complete defence to the claim.
However, the defendants raise the further argument that any such negligence on the second defendant's part was not the cause of the plaintiff's accident. The true cause of the accident was the system adopted by the plaintiff in unjamming the door. If the door had been left in the jammed position the plaintiff would not have been injured, and it was not foreseeable by the second defendant that an accident might have occurred in the circumstances as pleaded.
With regard to these questions of causation and foreseeability, the facts as alleged by the plaintiff are that during the period that the second defendant delayed in arranging for the door to be repaired, it was informed on numerous occasions that the door "was not working properly". Although I have not been provided with full particulars of what was allegedly said, the second defendant was presumably well aware that the plaintiff was having difficulty in closing the door. As managing agent the second defendant would also have been aware of the nature of the business operating from Lot 2 and of the fact that there was valuable equipment stored inside which needed to be secured. It is also self‑evident from photographs annexed to the affidavit filed on behalf of the second defendant that the roller door was a very high one, and if jammed in the open position would be well beyond the reach of any person.
The issue to be considered against these background circumstances is whether it was foreseeable that the second defendant's failure to have the door repaired would result in the plaintiff suffering a fall while climbing a ladder to close the door. In my view, it is open to argument that a reasonable person would not brush aside such a risk as being farfetched or fanciful, (see Shirt v Wyong Shire Council (1980) 146 CLR 40) and that there is a causative nexus between the second defendant's delay and the plaintiff's accident.
The fact that such an accident might only occur as a result of negligence on the part of the plaintiff would not of itself relieve the second defendant of any duty of care. In this regard: "the law has placed an increasing emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed" (Bus v Sydney City Council (1989) 167 CLR 78, 90).
Although the plaintiff may well have a difficult case to mount I am not satisfied that it "is so clearly untenable that it cannot possibly succeed". It follows that the appeal from the decisions of the Deputy Registrar refusing summary judgment should be dismissed.