Supreme Court New South Wales Medium Neutral Citation: Cohen v Double Bay Bowling Club (No 3) [2021] NSWSC 295 Hearing dates: On the papers Date of orders: 26 March 2021 Decision date: 26 March 2021 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Leave to amend Technology and Construction List Statement refused Catchwords: CIVIL PROCEDURE – Pleadings – Amendment –Application to amend Technology and Construction List Statement – Whether contentions as to duty and breach of duty were made with sufficient particularity Legislation Cited: Civil Liability Act 2002 (NSW) Conveyancing Act 1919 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Category: Procedural rulings Parties: Gregory Clive Cohen (First Plaintiff) Mariela Sverdloff (Second Plaintiff) Double Bay Bowling Club (First Defendant) Brianda Pty Ltd (Second Defendant) CF Group Piling Pty Ltd (Third Defendant) Representation: Counsel: D Weinberger (Plaintiffs) J Lazarus SC with M Sheldon (First Defendant) D Macfarlane (Third Defendant) Solicitors: Crisp Law (Plaintiffs) Lazarus Legal Group (First Defendant) McCabe Curwood (Second Defendant) Kennedys Law (Third Defendant) File Number(s): 2019/170616 Judgment 1. The plaintiffs, Mr Gregory Cohen and Ms Mariela Sverdloff, own and occupy a residential property in Double Bay. 2. The first defendant ("the Club") owns an adjoining property. The plaintiffs allege that the Club engaged the second defendant ("the Builder") to construct a dual occupancy on the Club's land and that the Builder engaged the third defendant ("the Piling Contractor") to carry out excavation and piling works. 3. The plaintiffs allege that these works have removed support to their land and caused damage to their home. 4. The proceedings were commenced almost two years ago on 31 May 2019 and have had what the plaintiffs' counsel accepted as being a "long and tortured history". 5. Now, by notice of motion filed on 26 February 2021, the plaintiffs seek leave to amend their Technology and Construction List Statement. 6. I have received submissions on behalf of the plaintiffs, the Club and the Piling Contractor. The Builder has indicated it adopts those of the Club and Piling Contractor. 7. The plaintiffs, the Club and the Piling Contractor agreed that I may deal with the matter on the papers. 8. In their submissions, counsel for the Club and the Piling Contractor made detailed criticism of the manner in which the proposed amendments were formulated and, in particular, of the lack of particularity of many of the allegations made. 9. That lack of particularity is said to be compounded by the plaintiffs' alleged failure, through their solicitors, to respond adequately to requests for particulars made in respect of earlier iterations of the plaintiffs' List Statement. 10. Counsel for the Club and Piling Contractor complained that the matter has been further exacerbated by the fact that counsel for the plaintiffs has, in the course of his submissions, sought further to particularise the claim made and, on a number of occasions, stated that certain proposed amendments are not pressed. 11. I am not prepared to grant the plaintiffs leave to amend the List Statement in the form proposed. 12. It is important in this case that the plaintiffs' List Statement contains, with full particularity, all of the allegations that they wish to make. 13. Some of the difficulties with the proposed List Statement are as follows. 14. The proposed List Statement alleges that the Club, the Builder and the Piling Contractor owed three different duties to the plaintiffs. 15. The first duty, specified at C7 and C7A, is an alleged statutory duty on the part of the Club, the Builder and the Piling Contractor to comply with certain conditions, on which Woollahra Municipal Council granted the Club development consent in relation to works on the Council's land. 16. The "pleading" [1] does not identify, in terms, which conditions of which development consent are referred to (although the plaintiffs' counsel stated they are those referred to at C6) nor by reason of what facts, matters or circumstances such a duty arises. 17. Nor does the pleading explain why, as is alleged at C7A, a breach of the alleged statutory duty gives rise to a private cause of action by the plaintiffs against the Club, the Builder and the Piling Contractor. 18. Evidently, the plaintiffs rely upon s 4.2 of the Environmental Planning and Assessment Act 1979, although that provision is not referred to in the pleading. 19. The second duty, pleaded at proposed C8, is a duty said to arise from "the matters set out above". This presumably includes terms of the development consent. The duty is also said to arise from the proximity of the plaintiffs' property to that of the Club, to the plaintiffs' "inability to protect themselves" and to s 177 of the Conveyancing Act 1919. 20. The duties are pleaded at a high level of abstraction and include alleged duties on each of the Club, the Builder and the Piling Contractor "to take reasonable steps" to ensure that the work was carried out in a proper and workmanlike manner so as not to damage the plaintiffs' property. 21. The defendants are entitled to know what "reasonable steps" each of them is alleged to have been obliged to take. This is particularly so in relation to the Club, which is not alleged actually to have done any of the work complained of but rather to have "caused" or "permitted" it to be done. 22. The third duty, pleaded separately against the Club, the Builder and the Piling Contractor in C8A, C8B and C8C of the List Statement, is the duty set out in s 177 of the Conveyancing Act. 23. This directs attention to the alleged breaches of these duties. 24. So far as concerns the Club, the breaches contended for at C10(a) to (d) and (f) to (g) are that it "permitted" the Builder and the Piling Contractor to take various steps in circumstances where it "knew or ought to have known" that identified conditions of the developer consent were not complied with. 25. The pleadings should identify how it is said that the Club "permitted" such matters and on what basis it has alleged that the Club "knew or ought to have known" of the nominated matters. 26. At proposed C10(e), it is alleged that the Club failed "promptly" to restore support to the plaintiffs' property. The pleadings do not identify what the plaintiffs say that the Club should have done and what is meant by "promptly". 27. The Piling Contractor points out that the breaches of duty alleged against it are identical to the breaches alleged against the Builder. 28. This may be significant as the Builder and the Piling Contractor (and indeed the Club) may wish, by resort to the proportionate liability legislation in Part 4 of the Civil Liability Act 2002, or otherwise, to seek to sheet home responsibility for the plaintiffs' loss to one or other of the defendants. 29. Further, the allegations of breach are expressed at a very high level. 30. They allege that the Piling Contractor (and the Builder) "failed to take precautions against the risk of harm to the plaintiffs" in various ways without specifying what precautions it is said that the Piling Contractor (and the Builder) should have made. 31. The pleading goes on to allege that the Piling Contractor (and the Builder) "carried out excavation of piling works" when "it knew or ought to have known" there was non-compliance with particular development consent conditions. The pleading does not attempt to identify what excavation or piling works were affected in contravention of any of those development consent conditions. 32. There are many other equally general allegations in the List Statement, including that the Piling Contractor and the Builder failed to take "appropriate steps" upon learning that damage had been sustained to the plaintiffs' property. No attempt is made to identify what those "appropriate steps" were. 33. Further, in each case, as a particular of breach, the pleading states that "the plaintiffs rely upon the expert reports of Mr de Silva and Dr Wu". As a matter of evidence, that may be true, but as a matter of pleading it is not satisfactory for the plaintiffs simply to refer, in such a global way, to expert reports and thus leave it to the Builder or the Piling Contractor to look through those reports to see what it is that is alleged against them. 34. There are other difficulties with the pleading which are identified in submissions made on behalf of the Club and the Piling Contractor. 35. I do not propose to go into those matters in any further detail. 36. Suffice to say that I am not satisfied that I should give leave to the plaintiffs to amend their List Statement in the form proposed. 37. Those advising the plaintiffs should formulate a further List Statement which makes clear exactly what duty is said to be owed to them by each of the Club, Builder and Piling Contractor, the bases upon which those duties are alleged, the precise breaches of duty alleged and, in each case, the facts, matters and circumstances upon which the plaintiffs rely to make out those breaches of duty. 38. All of those matters should be incorporated into a single document, being the List Statement itself. It should not be necessary for the defendants, or the Court, to search through requests for particulars and responses to those requests to understand exactly what it is the plaintiffs contend the Club, the Builder or the Piling Contractor did or did not do in breach of their alleged duties. 39. I make the following orders: 1. The plaintiffs' notice of motion of 26 February 2021 is dismissed with costs. 2. Those costs may be assessed forthwith and are to be payable forthwith on assessment. 3. If the plaintiffs wish to further to amend their List Statement they should file and serve a notice of motion seeking leave to do so no later than 5pm on 14 April 2021. 4. Such motion should be made returnable in the Motions List in the usual way. 5. The matter is listed for further directions on 16 April 2021. ********** Endnote 1. Although contentions in a List Statement are not, technically, "pleadings" because proceedings in the Technology and Construction List are not contested by a Statement of Claim, I will, for convenience, refer to "pleadings". Amendments 12 August 2021 - Case title amended 17 February 2022 - Case title corrected to (No 3) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2022