Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 26) [2020] NSWSC 1728

Supreme Court New South Wales

Medium Neutral Citation: Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 26) [2020] NSWSC 1728 Hearing dates: 26 to 29 October 2020 Date of orders: 4 December 2020 Decision date: 04 December 2020 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The following questions are to be determined separately and in advance of all remaining issues in the proceedings: "Question 39: Should money received by Sample Group Members and Group Members from the Premier's Disaster Relief [Fund] be taken into account in the assessment of any damages, and if so, in what way? Question 40: Should money received by Group Members from funding available to individuals and families under the Natural Disaster Relief and Recovery Arrangements (NDRRA) be taken into account in the assessment of any damages, and if so, in what way?" (2) The questions posed by order 1 be answered as follows: Question 39: Should money received by Sample Group Members and Group Members from the Premier's Disaster Relief [Fund] be taken into account in the assessment of any damages, and if so, in what way? Answer: No. Question 40: Should money received by Group Members from funding available to individuals and families under the Natural Disaster Relief and Recovery Arrangements (NDRRA) be taken into account in the assessment of any damages, and if so, in what way? Answer: (i) In respect of any group member who received the Emergency Assistance Payment under the NDRRA, no. (ii) In respect of the Essential Household Contents Grant payable to Ms Lynette Harrison, no. (iii) In respect of any other group member who received the Essential Household Contents Grant under the NDRRA, no. (iv) In respect of any group member who received structural assistance grants pursuant to the NDRRA in respect of repairs to their home then to the extent that they can otherwise recover in these proceedings the costs and expenses of those repairs then any amount of damages referable to those costs and expenses should account for the grant and any such accounting is to occur before any apportionment of the amount of damages to be paid by each defendant to that group member. (v) In respect of any group member who received an Essential Services and Safety Reconnection Scheme grant pursuant to the NDRRA in respect of the cost and expenses of reconnection of essential services to their home, then to the extent that they can otherwise recover in these proceedings the costs and expenses of that reconnection, any amount of damages referable to those costs and expenses should account for the grant and any such accounting is to occur before any apportionment of the amount of damages to be paid by each defendant to that group member. (3) Stand over the balance of the third defendant's notice of motion filed 10 September 2020 to 11 December 2020. (4) Direct the parties to confer in relation to the matters identified in [112] and [123] of this judgment. Catchwords: REPRESENTATIVE ACTION – Queensland floods – damages – determination of separate questions concerning whether certain payments deductible from group members' damages – payments made under Premier's Relief Fund not deductible – certain payments under the National Disaster Relief and Recovery Arrangements deductible – others not deductible – assessment of two individual group member claims – damages for physical inconvenience arising from home flooding – calculation of cleaning costs – methodology – treatment of damages recovered from insurance broker for failure to obtain insurance cover. Legislation Cited: Appropriation Act (No 2) 2006-2007 (Cth) Civil Liability Act 2003 (Qld) Civil Procedure Act 2005 (NSW) Disaster Management Act 2003 (Qld) Evidence Act 1995 Income Tax Assessment Act 1997 (Cth) Judicial Review Act 1991 Judicial Review Act 1991 (Qld), Queensland Reconstruction Authority Act 2011 (Qld) Rural and Regional Adjustment Act 1994 (Qld) Trusts Act 1973 (Qld), Cases Cited: Bailey v Bullock [1950] All ER 1167 Baxter v Obacelo Pty Ltd (2001) 205 CLR 634; [2001] HCA 66 Brickhill v Cooke [1984] 3 NSWLR 396 Campbelltown City Council v Mackay (1989) 15 NSWLR 501 Clarke v Shire of Gisbourne [1984] VR 971 Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15 Herridge & Ors v Electricity Networks Corporation t/as Western Power (No 4) [2019] WASC 94 Johnson v Australia Casualty Co Ltd (1992) 7 ANZ Insurance Cases 61-109 Manser v Spry (1994) 181 CLR 428; [1994] HCA 50 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3 Minister for Immigration and Ethnic Affairs v Conygham (1986) 11 FCR 528 Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343; [2000] HCA 9 Moore v Scenic Tours (2020) 377 CLR 209; [2020] HCA 17 Muirhead v Kingborough Council (No 2) [2000] TASSC 127 National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15 Powercor Australia Ltd v Thomas (2012) 43 VR 220; [2012] VSCA 87 Redding v Lee; Evans v Muller (1983) 151 CLR 117; [1983] HCA 16 Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417 Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 23) [2020] NSWSC 650 Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 24) [2020] NSWSC 1498 Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 25) [2020] NSWSC 1544 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657 Sayeng v Kellog Superannuation Pty Ltd [2003] NSWSC 945 Thomas v Powercor Australia Ltd [2011] VSC 586 Thorpe v Lochel (2005) 31 WAR 500 Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91 Zheng v Cai (2009) 239 CLR 446; [2009] HCA 52 Category: Consequential orders (other than Costs) Parties: Rodriguez & Sons Pty Limited (Plaintiff) Queensland Bulk Water Supply Authority t/as Seqwater (First Defendant) SunWater Limited (Second Defendant) State of Queensland (Third Defendant) Representation: Counsel: J Sexton SC; N Owens SC; R May; S Chordia (Plaintiff) J Stoljar SC; D Klineberg; T Prince (First Defendant) D Williams SC; HJA Neal; A Barnett (Second Defendant) JM Horton QC; E Morzone; D Bampton (Third Defendant)