Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 27) [2021] NSWSC 145

Supreme Court New South Wales

Medium Neutral Citation: Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 27) [2021] NSWSC 145 Hearing dates: 26-29 October 2020 and 11 December 2020 Date of orders: 26 February 2021 Decision date: 26 February 2021 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The following question is to be determined separately and in advance of all remaining issues in the proceedings: "Q 41: Should the award of interest payable on the determined amount of damages be reduced on account of loans made to Group Members under the QRAA [ie payments made by the Queensland Rural Adjustment Authority] and NDRRA [the Natural Disaster Relief and Recovery Arrangements]?" (2) The question posed by Order 1 be answered as follows: A: In circumstances where a group member received a loan with an interest subsidy conferred by Part 8 of the Rural and Regional Adjustment Regulation 2000 (Qld) which was used to repair property then statutory interest will not be allowed on the cost of repairs at statutory rates to the extent that there is a separate claim to recover the interest paid on the subsided loan to effect those repairs. If there is no such claim then an award of statutory interest will not be made in an amount that exceeded the interest paid on the subsided loan to effect those repairs. Otherwise, unable to answer. (3) Order 2 made on 29 May 2020 be varied so that the answers to Questions 37 and 38 in Schedule 1 to the judgment in Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 23) [2020] NSWSC 650 be amended in accordance with Schedule 1 to this judgment. (4) On or before 4 March 2021 the parties to confer in relation to the calculation of the damages to be awarded to each of Mr and Mrs Keller, Ms Visser and Ms Lynch; (5) On or before 11 March 2021 the parties file agreed, or failing agreement, draft short minutes in respect of the damages to be awarded to Mr and Mrs Keller, Ms Visser and Ms Lynch as at 18 March 2021; (6) The third defendant's notice of motion filed 10 September 2020 is otherwise dismissed. (7) Paragraph 20 of the affidavit of Oliver Threlfall sworn 9 December 2020 is rejected. Catchwords: REPRESENTATIVE ACTION – Queensland Floods – quantum issues – recovery of damage to fixtures and chattels – measure of damages – clean‑up costs – reasonable commercial cost of cleaning or cost of labour of individuals who undertook clean‑up? – Powercor Australia Pty Ltd v Thomas considered Held: commercial cost is appropriate measure – ASSESSMENT – individual group member – farm enterprise – losses to farming business – inconvenience – subsidised interest on loan Legislation Cited: Civil Procedure Act 2005 Rural Adjustment Act 1992 (Cth) Rural and Regional Adjustment Act 1994 Rural and Regional Adjustment Regulation 2000 (Qld) Cases Cited: CSR Ltd v Eddy (2006) 226 CLR 1 Dang v Chea [2013] NSWCA 80 Griffiths v Kerkemeyer (1977) 139 CLR 161; [1977] HCA 45 Haines v Bendall (1991) 172 CLR 60 at 67; [1991] HCA 15 Hungerfords v Walker (1988) 171 CLR 125 La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4 Lee v Strelnicks [2020] NSWCA 115 Malec v JC Hutton Pty Ltd (1990) 169 CLR 63; [1990] HCA 201 Marine Board of Launceston v Minister of State for the Navy (1945) 70 CLR 518 MBP (SA) Pty Ltd v Gogic (1990) 171 CLR 657 at 663; [1991] HCA 3 Palasty v Parlby [2007] NSWCA 345 Powercor Australia Ltd v Thomas (2012) 43 VR 220 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 Limited v Queensland Bulk Water Supply Authority t/as Seqwater (No 26) [2020] NSWSC 1728 Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 22) [2019] NSWSC 1657 Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 Sempra Metals v Inland Revenue Commissioners [2008] AC 561 Category: Consequential orders 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)