Southern Region SLSA Helicopter Rescue Service Pty Ltd v New South Wales Golf Club Co Ltd t/as New South Wales Golf Club [2021] NSWSC 1493

Supreme Court New South Wales

Medium Neutral Citation: Southern Region SLSA Helicopter Rescue Service Pty Ltd v New South Wales Golf Club Co Ltd t/as New South Wales Golf Club [2021] NSWSC 1493 Hearing dates: 11 November 2021 Decision date: 19 November 2021 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Proposed amendments allowed in part; proposed further evidence allowed in part. Catchwords: CIVIL PROCEDURE – application to amend List Response and serve further evidence Legislation Cited: Design and Building Practitioners Act 2020 (NSW) Limitation Act 1969 (NSW) Category: Procedural rulings Parties: Southern Region SLSA Helicopter Rescue Service Pty Ltd (Plaintiff/Respondent) New South Wales Golf Club Co Ltd trading as New South Wales Golf Club (Defendant/Applicant) Representation: Counsel: P Bambagiotti (Plaintiff/Respondent) B Le Plastrier (Defendant/Applicant)

Solicitors: Mills Oakley (Plaintiff/Respondent) McCabes Lawyers (Defendant/Applicant) File Number(s): 2017/111417

Judgment 1. On 11 November 2021, I heard argument in relation to the defendant's Notice of Motion filed 22 October 2021 in which it seeks leave to file and serve: 1. an Amended List Response; 2. an affidavit of David Burton made on 4 August 2021; and 3. an affidavit of Gary Dempsey made on 5 August 2021. 1. During the course of argument, I indicated the orders I proposed to make and said that I would publish my reasons later. 2. These are those reasons. 3. The plaintiff, Southern Region SLSA Helicopter Rescue Service Pty Ltd owns land in La Perouse from which it operates a helicopter rescue service. 4. The defendant, New South Wales Golf Club Co Ltd (the "Club") owns the adjoining land on which a golf course is located. 5. In 2006, a helicopter hanger and crew accommodation building was constructed on the plaintiff's land, together with a retaining wall designed to retain some 5.5 m of earth lying between the wall and the Club's golf course. 6. On 14 June 2012, the wall failed causing damage to the plaintiff's building. 7. The plaintiff contends that the wall failed by reason of "landscaping work" that the Club effected in late 2007 or early 2008 designed to shield the plaintiff's premises from the view of Club patrons. 8. The plaintiff brings its case in trespass and negligence, including alleged breach of the statutory duty referred to in s 37 of the Design and Building Practitioners Act 2020 (NSW), and in nuisance. 9. The proceedings have been on foot since the middle of 2017. Very shortly after the proceedings were commenced, an order was made referring the whole of the proceedings out for expert determination. The current referee is Mr George Inatey QC. The reference has not yet taken place.