Shoveller v Dak-Wal Constructions Pty Ltd (No 3) [2021] NSWSC 352

Supreme Court New South Wales

Medium Neutral Citation: Shoveller v Dak-Wal Constructions Pty Ltd (No 3) [2021] NSWSC 352 Hearing dates: 7-11 September 2020 Date of orders: 8 April 2021 Decision date: 08 April 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) Judgment on the Statement of Claim for the plaintiff against the first defendant and the third to seventh defendants; (2) Judgment on the Statement of Claim for the second defendant against the plaintiff; (3) Judgment on the First Cross-Claim for the third to seventh defendants/cross-claimants against the first defendant/second cross-defendant; (4) Judgment on the First Cross-Claim for the first cross-defendant; (5) Judgment on the Second Cross-Claim for the second defendant/first cross-defendant against the cross-claimant/first defendant; (6) Judgment on the Second Cross-Claim for the third to seventh defendants/second to sixth cross-defendants; (7) The Third and Fourth Cross-Claims are dismissed; (8) The first defendant shall pay the costs of and incidental to the proceedings and each Cross-Claim incurred by the plaintiff, the second defendant and the third to seventh defendants; (9) Leave is granted to any party to apply for a different order as to costs; for the inclusion of any agreed order as to damages; and any other aspect relating to damages or the form of the orders to be entered. Such application shall be made within seven days of the date of this judgment, with each party affected by any such application filing any response thereto within a further seven days of the application. All or any such application or response shall be made by email directly to the Associate to Justice Rothman. The Court will, if there be a contest in relation to such a matter, list the matter for directions to deal with the processing of any such application. Such directions hearing shall be by audio visual link. Catchwords: NEGLIGENCE - Occupiers' Liability – Duty of Care of builder/occupier for hazard created during building works and causing damage to invitee after handover to Owners – relative liability of Owners, builder and contractor. Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Law Reform (Miscellaneous provisions) Act 1946 (NSW) Cases Cited: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Amaca Pty Ltd v New South Wales (2003) 77 ALJR 1509 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA Baker v Gilbert [2003] NSWCA 113 Bell v Thompson (1934) 34 SR (NSW) 431 Blatch v Archer [1774] 1 Cowp 63; (1774) 98 ER 969 Council of the City of Greater Taree v Wells [2010] NSWCA 147 Hackshaw v Shaw (1984) 155 CLR 614 Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 Ridis v Strata Plan 10308 [2005] NSWCA 246 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Sutherland Shire Council v Safar [2017] NSWCA 203 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Wallace v Kam (2012) Aust Torts Reports 82–101; [2012] NSWCA 82 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12 Texts Cited: J Wigmore, A treatise on the Anglo-American system of evidence in trials at common law : including the statutes and judicial decisions of all jurisdictions of the United States and Canada (3rd ed, 1940, Little, Brown) Vol 2, s 285 Category: Principal judgment Parties: Alfred Shoveller (Plaintiff) Dak-Wal Constructions Pty Ltd (First Defendant) Akota Construction Pty Ltd (Second Defendant) Joanne Patricia Cunningham (Third Defendant) Merran Rosemary Doyle (Fourth Defendant) Susan Daintrey Virgona (Fifth Defendant) Wilfred James Luscombe (Sixth Defendant) Lucia Louise Luscombe (Seventh Defendant) Representation: Counsel: K Andrews (Plaintiff) D Priestley SC / T Berberian (First Defendant) N Chen SC / D Stretton (Second Defendant) B Hull (Third – Seventh Defendants)