District Court New South Wales Medium Neutral Citation: Jones v Lindsay [2020] NSWDC 885 Hearing dates: 10 July 2020 Date of orders: 10 July 2020 Decision date: 10 July 2020 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Plaintiff to file and serve the amended statement of claim in the form annexed to the affidavit of Richard Louis Mitry sworn 15 June 2020 by 15 July 2020. (2) The defendant to file and serve any defence to the amended Statement of claim by 29 July 202020. (3) The plaintiff to serve any further lay and expert evidence in reply to defendant's evidence by 26 August 2020. (4) The parties' geotechnical experts to meet and prepare a joint report setting the matters on which they agree and disagree by 18 September 2020. (5) The parties participate in a formal mediation by 30 September 2020. (6) List the matter for directions to allocate a hearing date on Thursday, 1 October 2020 at 9.30am before the Judicial Registrar. (7) Plaintiff pay the costs thrown away by reason of the amendment of the statement of claim. (8) Plaintiff's costs of the motion be costs in the proceedings. Catchwords: CIVIL PROCEDURE — Originating process — Amendment Legislation Cited: Civil Procedure Act 2005, s 56 Conveyancing Act 1919 (NSW), s 177 Uniform Civil Procedure Rules 2005, r 42.7 Category: Procedural rulings Parties: Caradog Vaughan Jones (plaintiff) Darren Lindsay (defendant) Representation: Counsel: Mr R Perla (plaintiff) Mr R Scheelings (defendant) Solicitors: Mitry Lawyers (plaintiff) Paradise Charnock O'Brien (defendant) File Number(s): 2018/143973 Publication restriction: None Judgment 1. The plaintiff seeks leave to amend the statement of claim. The claim alleges breaches of a duty of care in respect of support of land provided by the property neighbouring the plaintiff's property. 2. In accordance with the overriding purpose in s 56 of the Civil Procedure Act 2005, leave to amend should ordinarily be granted if it would enable the real issues in the proceedings to be ventilated. A tendency to grant leave may be overturned by other matters, commonly of three types: uncured prejudice, unexplained delay, and futility. The plaintiff accepts an obligation to meet the costs thrown away by the amendment, and although reference was made to the two-year history of the proceedings, no other prejudice from the amendment is claimed. No hearing date has been fixed in the proceedings. 3. The need for the amendment arises because the current pleading relies on a duty declared by s 177 of the Conveyancing Act 1919 (NSW). That provision speaks of a duty "not to do anything on or in relation to land" that removes the support provided by the supporting land. There is some authority for the proposition that the reference in s 177 does not include omissions. As a result of evidence put on by the defendant in February and March of this year, and an amended defence filed in May of this year, the claim by the plaintiff may be said to involve an assertion of an omission rather than an act of the defendant that caused damage. As an omission might not be within the duty declared by s 177 of the Conveyancing Act, an amendment to include an alternative claim of common law negligence is sought. 4. These matters, including the impact of the defence and the defendant's evidence, explain the delay of two years since the proceedings were commenced. I do not regard the lapse of a month or two since the filing of the defence, or three or four months since the filing of the defendant's evidence, as a reason to deny the amendment, especially in circumstances where no hearing date has been fixed. 5. The third potential problem with an amendment is that of futility, which seems to be the primary ground relied upon by the defendant. The defendant asserts that there is no other negligence claim in respect of supporting land available outside of the duty imposed by s 177 of the Conveyancing Act. No authority was provided in respect of that proposition. I was referred to other decisions which indicate that s 177 identifies a duty of care on a party, but does not remove any relevant duty. The Minister in the second reading speech was claimed to have stated that the statutory duty was created as "an addition to the common law of negligence". These matters suggest it might not be futile to rely upon a duty outside s 177. 6. This is not the occasion to determine whether such a common law duty exists or whether it applies to the circumstances of this case. The plaintiff is entitled to make a reasonably arguable allegation and have it determined. The amendment properly enables the real issues between the parties to be ventilated at a trial. For these reasons, I propose to grant leave to file the amended statement of claim. 7. The parties have proposed some directions in respect of the further conduct of the proceedings and I propose to make orders in accordance with those directions, namely that: 1. Plaintiff to file and serve the amended statement of claim in the form annexed to the affidavit of Richard Louis Mitry sworn 15 June 2020 by 15 July 2020. 2. The defendant to file and serve any defence to the amended statement of claim by 29 July 2020. 3. The plaintiff to serve any further lay and expert evidence in reply to defendant's evidence by 26 August 2020. 4. The parties' geotechnical experts to meet and prepare a joint report setting the matters on which they agree and disagree by 18 September 2020. 5. The parties participate in a formal mediation by 30 September 2020. 6. List the matter for directions to allocate a hearing date on Thursday, 1 October 2020 at 9.30am before the Judicial Registrar. 7. Plaintiff pay the costs thrown away by reason of the amendment of the statement of claim. 1. The plaintiff has acknowledged an obligation to meet the costs thrown away by reason of the amendment. 2. On two separate occasions - on 21 May 2020 and on 1 July 2020 - the plaintiff sought to avoid the costs of the motion by inviting the defendant to consent to the filing of the statement of claim. On those occasions, the plaintiff indicated that they would seek costs of the motion if it went ahead, on the basis that a refusal to consent to the amendments would be unreasonable. 3. I accept that this correspondence is relevant to the question of costs, and that opposition to the proposed amendment seems misplaced. 4. On the other hand, the question of costs in interlocutory matters is not uncommonly dealt with in accordance with r 42.7 of the Uniform Civil Procedure Rules 2005, which provides that, in the absence of any other order, the costs of an interlocutory matter become costs in the proceedings. There is also the assertion by the defendant that the plaintiff has been given an indulgence by the grant of leave to file the amended statement of claim, an argument that might not have so much force in recent times, but should also be taken into account. 5. Bearing all these matters in mind, and in particular the plaintiff's attempts to resolve the matter, I think that the defendant should not receive his costs of today, whatever be the result of the proceedings, but the plaintiff should, if he is successful in the proceedings. 6. The costs order in respect of the motion will be that the plaintiff's costs of the motion be costs in the proceedings. 7. Accordingly, the orders of the Court are: 1. Plaintiff to file and serve the amended statement of claim in the form annexed to the affidavit of Richard Louis Mitry sworn 15 June 2020 by 15 July 2020. 2. The defendant to file and serve any defence to the amended Statement of claim by 29 July 202020. 3. The plaintiff to serve any further lay and expert evidence in reply to defendant's evidence by 26 August 2020. 4. The parties' geotechnical experts to meet and prepare a joint report setting the matters on which they agree and disagree by 18 September 2020. 5. The parties participate in a formal mediation by 30 September 2020. 6. List the matter for directions to allocate a hearing date on Thursday, 1 October 2020 at 9.30am before the Judicial Registrar. 7. Plaintiff pay the costs thrown away by reason of the amendment of the statement of claim. 8. Plaintiff's costs of the motion be costs in the proceedings. ********** 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: 19 April 2021