Piling v Prynew Nemeth v Prynew [2008] NSWSC 327

New South Wales Supreme Court

CITATION : Piling v Prynew Nemeth v Prynew [2008] NSWSC 327

HEARING DATE(S) : 26/02/2008

JUDGMENT DATE : 14 April 2008

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

CATCHWORDS : Building & Construction. Adoption of Referee's Report as to negligence in respect of excavation. - Torts - apportionment.

PARTIES : Piling Contractors (Qld) Pty Limited v Prynew Pty Limited Ferdinand Nemeth & Anor v Prynew Pty Limited and 2 Ors

FILE NUMBER(S) : SC 55019/03; 55037/03

Mr SM Kettle for Piling COUNSEL : Mr J Simpkins SC for Prynew & Tsu Mr JE Robson SC & DS Weinberger for Nemeths Mr A Hewitt SC & P Dodson for QBE

Thompson Cooper Lawyers for Piling SOLICITORS : Avendra Singh & Co for Prynew and Tsu Salim Rutherford Lawyers for Nemeths Curwood & Partners for QBE

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

Associate Justice Macready

Monday 14 April 2008

55019/2003 Piling Contractors (Qld) Pty Limited v Prynew Pty Limited

55037/03 Ferdinand Nemeth and Virginia Nemeth v Prynew Pty Limited, Peter Tsu and Piling Contractors (Qld) Pty Ltd JUDGMENT NO 2

1 His Honour: On 26 February 2008 I gave judgment in this matter. At paragraph 145 of the judgment I saidI would decide the question whether the first and second defendant were negligent by reference to the evidence which existed before the Referee. 2 I called for submissions on this aspect from all parties. Apart from the plaintiffs, Ferdinand Nemeth and Virginia Nemeth, in matter 55037/2003, I have received submissions from all the parties. 3 My reason for doing this is set out in paragraphs 142 to 145 in my earlier judgment which were as follows: "142. Although the Referee found the failure to set out was negligent she did so on the wrong basis but the fact of the matter is that as a result of her factual findings there was a set out of the pile 122 at an incorrect location. This leaves open for consideration support for the Referee's conclusion of negligence without relying upon the failure to use surveying equipment or surveying techniques. Obviously the set out of the piles at the right locations is critical to the success or failure of the construction of a contiguous wall and a failure in this respect could be classified as negligent. 143. It is plain that the Referee regarded correct set out as fundamental in this project. As I have mentioned Mr Malicia and Mr Little were not called to give evidence. On the evidence they were the men who did the pegging and, given the evidence to this effect, they could have provided answers in respect of the faulty pegging. They are non-party witnesses but in my view it would be natural for the first and second defendants to call them. Plainly their evidence as to what happened on 5 June 2001 would have shed some light on the matter. In my view their evidence would not have assisted the first and second defendants. 144. It is open to the Court to decide any matter on the evidence taken before the referee without any additional evidence and the motion of the first and second defendants invites that approach in relation to whether the first and second defendants breached their duty of care. 145. What happened here is something that would not ordinarily happen in the construction of a contiguous piling wall. The occurrence bespeaks negligence and the evidence points to two separate breaches of care by the defendants. The first and second defendants were responsible for setting out the location of the piles and the referee has found that this was not done correctly. Given the Referee's view of the fundamental importance of correct set out it is arguable that the first and second defendant breached their duty of care in this respect. I will decide the matter by reference to the existing evidence before the Referee and I will give directions for written submissions on this point."