Sydney Water v Asset Geotechnical Engineering & Ors [2013] NSWSC 1274

Supreme Court New South Wales

Medium Neutral Citation: Sydney Water v Asset Geotechnical Engineering & Ors [2013] NSWSC 1274 Hearing dates: 30, 31 July 2012; 1, 2, 3, 6, 7, 8, 9,10 August 2012 Decision date: 06 September 2013 Jurisdiction: Common Law Before: Campbell J Decision: (1) Judgment for the plaintiff against the first defendant in the sum of $643,517.55; (2) Judgment for the plaintiff against the second and third defendants jointly in the sum of $99,002.70; (3) Judgment for the plaintiff against the fourth defendant in the sum of $247,506.75; (4) Judgment in favour of the fourth cross-defendant to the third cross claim; (5) Cross claims otherwise dismissed with no order as to costs; (6) The first defendant to pay the costs of the fourth cross defendant to the third cross claim on the ordinary basis forthwith after they have been agreed or assessed; (7) The defendants to pay the plaintiff's costs of the proceedings pro rata on the ordinary basis forthwith after they have been agreed or assessed; (8) Liberty to apply in respect of my assessment of interest and for any special order as to costs to be exercised by notice of motion filed within 14 days of today; (9) Any motion filed pursuant to Order 8 may be listed before me for directions at 9:30am on Friday, 11th October 2013. Catchwords: TORTS - negligence - landslip at building site - damage caused to sewer main owned by the plaintiff - whether geotechnical engineer, occupiers, principal contractor or excavator liable - apportionable claim covered by Part 4 Civil Liability Act 2002 (NSW) - whether local council is a concurrent wrongdoer under s35(3) Civil Liability Act 2002 (NSW) REAL PROPERTY - statutory covenant - whether second and third defendants liable for breach of statutory covenant created by s44 Sydney Water Act 1994 (NSW) - whether claim is an apportionable claim Legislation Cited: -Civil Procedure Act 2005 (NSW) -Civil Liability Act 2002 (NSW) -Environmental Planning and Assessment Regulation 2000 (NSW) -Home Building Act 1989 (NSW) -Law Reform Miscellaneous Provisions Act 1946 (NSW) -Sydney Water Act 1994 (NSW) -Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: -Baden Cranes Pty Ltd v Smith [2013] NSWCA 136 -Bennett v Minister of Community Welfare (1992) 176 CLR 408 -Bryan v Maloney [1995] HCA 17; 182 CLR 609 -Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 -De Pasquale Bros Pty Ltd v Cavanagh Biggs & Partners Pty Ltd [1999] QSC 171; Aust Torts Reports 81-521 -Donoghue v Stevenson (1932) AC 562 -Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195 -Environment Protection Authority v N (1992) 26 NSWLR 352 -George v Webb [2011] NSWSC 1608 -Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; 87 ALJR 505 -Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 -March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 -MM Constructions (Aust) Pty Ltd v Port Stephens Council (No 7) [2012] NSWCA 417 -Pantalone v Alaouie (1989) 18 NSWLR 119 -Reinhold v New South Wales Lotteries Corporation (No. 2) [2008] NSWSC 187; 82 NSWLR 762 -Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182 -TNT Australia Pty Ltd v Christie [2003] NSWSC 47; 65 NSWLR 1 -Voli v Inglewood Shire Council (1963) 110 CLR 74 -Wallace v Kam [2013] HCA 19; 87 ALJR 648 -Warren Shire Council v Kuehne [2012] NSWCA 81 -Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; 216 CLR 515 -Wyong Shire Council v Shirt (1980) 146 CLR 40 Category: Principal judgment Parties: Sydney Water Corporation (plaintiff) Asset Geotechnical Engineering Pty Ltd (first defendant) Peter Anthony John Liddy (second defendant) Michelle Ann Liddy (third defendant) Lindsay Hyde Page (fourth defendant) Flexible Excavations Pty Limited (cross-defendant) Representation: Counsel: GM Watson SC with MC Sheller (plaintiff) L Reid (first defendant) D Toomey (second and third defendant) MB Evans (fourth defendant) S Donaldson SC with Mr M Gollan (cross-defendant) Solicitors: DLA Piper Australia (plaintiff) Kennedys (Australasia) Pty Ltd (first defendant) Walkom Lawyers (second and third defendant) O'Brien Lawyers (fourth defendant) Hicksons (cross-defendant) File Number(s): 2010/00066127