Anderson v Ausgrid [2015] NSWSC 1308

Supreme Court New South Wales

Medium Neutral Citation: Anderson v Ausgrid [2015] NSWSC 1308 Hearing dates: 31 August, 1 and 2 September 2015 Decision date: 09 September 2015 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for the plaintiffs in the sum of $819,676.50 plus pre-judgment interest to the date of entry of judgment, as agreed or determined by me.

(2) Direct the parties to notify my Associate of any agreed figure for interest or, failing agreement, the figure proposed by each party, and the contentions in support, within seven days.

(3) Unless an application for a different order is made in writing to my Associate within seven days hereof, order the defendant to pay the plaintiffs' costs of the proceedings. Catchwords: TORT – negligence – fire destroyed home – whether fire caused by defective installation of meter by defendant – inability to show precisely how fire started not fatal to discharge of plaintiffs' onus – negligent installation of the meter was a reasonable and probable explanation for fire – unnecessary to exclude other possible explanations for known facts PRACTICE AND PROCEDURE – defendant sought to rely on exclusion clause in supply contract – exclusion clause not pleaded – no application for leave to amend – reliance not permitted Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5O Contracts Review Act 1980 (NSW) Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 14.14 Cases Cited: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Curtis v Harden Shire Council [2014] NSWCA 314; 88 NSWLR 10 Fuller-Lyons v New South Wales [2015] HCA 31 Luxton v Vines (1952) 85 CLR 352 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Wallace v Kam [2013] HCA 19; 250 CLR 375 Category: Principal judgment Parties: Justin Anderson (First Plaintiff) Melissa Anderson (Second Plaintiff) Ausgrid (Defendant) Representation: Counsel: Ms T Berberian (First and Second Plaintiffs) Ms JA Wright (Defendant)