Site Demolition Pty Limited v Kang [2023] NSWDC 487

District Court New South Wales

Medium Neutral Citation: Site Demolition Pty Limited v Kang [2023] NSWDC 487 Hearing dates: 17, 18 and 20 October 2023 Date of orders: 17 November 2023 Decision date: 17 November 2023 Jurisdiction: Civil Before: Acting Judge I Coleman SC Decision: (1) Judgment for the Plaintiff. (2) The parties are to bring in Short Minutes of Order, in 14 days, reflecting the agreed mathematical calculation of damages, inclusive of GST and interest. (3) The Cross-Claim is dismissed. (4) The Plaintiff's legal representatives to have access to the sealed envelope containing the Defendant's current residential address. (5) The Defendant/Cross-Claimant is to pay the Plaintiff's/Cross-Defendant's costs as agreed or assessed on the ordinary basis, with liberty to vary this order subject to order (7) below. (6) Matter relisted on 11 December 2023 for entry of judgment and any costs application. (7) Any party wish to bring a costs application to vary order (5) above ("costs applicant") is to file and serve written submissions on costs by 4.00pm 29 November 2023, and to email a copy of any such submissions to my Associate. (8) The costs respondent is to file and serve written submissions in reply by 4.00pm 6 December 2023. (9) Exhibits retained for 28 days. (10) Liberty to restore. Catchwords: CONTRACT- where plaintiff contracts with defendant to remove and dispose of asbestos contaminated material (ACM) on defendant's property- whether 168.68 tonnes of material removed from defendant's property was ACM- whether plaintiff entitled to recover cost of other minor works pursuant to parties' contract – no disputed issue of contractual interpretation Legislation Cited: Australian Consumer Law Evidence Act 1995 (NSW), s 79 Fair Trading Act 1987 (NSW), Part 3 Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cl 77 Protection of Environment Operations Act 2014 (NSW) Work Health and Safety Act 2011 (NSW), s 274 Work Health and Safety Regulation 2017 (NSW), rr 459, 460, 529 Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144 Dasreef Pty Limited v Hawchar [2011] HCA 21 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 HG v The Queen (1999) 197 CLR 414 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Valevski v The Queen (2002) 76 ALJR 402 Watson v Foxman (1995) 45 NSWLR 315 Texts Cited: National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth), Schs B1 and B2 SafeWork Australia, "Code of Practice, How to Safely Remove Asbestos" (NSW Government, August 2019) Category: Principal judgment Parties: Plaintiff: Site Demolition Pty Limited ACN 155 806 947 Defendant: Ze Kang Representation: Counsel: Plaintiff: Mr M A Collins Defendant: Mr R A Parsons