Bell v Hunters Hill Council

Judgment 1These proceedings, whilst initially a suit for injunction against an alleged nuisance, have now become an action for damages for breach of a deed. 2This state of affairs came about because the equity suit was settled on the basis that the parties would enter into a deed. They did so, but the plaintiff complaints that the defendant breached the terms of that deed causing her damages. 3The plaintiff is the registered proprietor of land at Hunters Hill fronting a street I will call X street. The plaintiff's land is at the low point of X street. Whilst X street is drained, there are some good reasons for saying that the drainage is now inadequate and that such inadequate drainage was the cause of flooding to the plaintiff's land and house. 4The plaintiff sought an injunction to protect her property from further flooding. The case was provisionally settled by the parties entering into a deed on 4 November 2009 ("The Deed"). 5Clause 5. 2 of The Deed provided that within 28 days of the obligations of the Deed being satisfied, the Equity proceedings would be discontinued with no order as to costs. 6It is necessary to set out clauses 3, 9.1 and 16.1: 3 The Works 3.1 Council agrees to undertake the Works. 3.2 Council agrees that it will use its best endeavours to have the Works designed by 30 November 2009. 3.3 Council will ensure that Bell is provided with a reasonable opportunity to meet and discuss the Works with the Consultant Engineers prior to the design for the carrying out of the Works being finalised. 3.4 Council will provide to the Consulting Engineers with a copy of the report obtained by Bell from LHO Group Pty Limited dated March 2008 (copy of which is Annexure C) for consideration by the Consulting Engineers in preparing the most appropriate design for the Works. 3.5 The design for the Works will: 3.5.A include necessary structures within the road reserve to capture the 1 in 100 year ARI calculated flows with any overflow to be discharged within the drainage easement; 3.5.B include removal of the Existing Pipeline; 3.5.C include installation of a replacement pipeline of capacity of at least a 1 in 20 year ARK 3.5.D be in accordance with the appropriate engineering standards, but generally for the new pipeline to safely convey a 1 in 20 year ARI event within the pipeline, and any additional flow of up to the 1 in 100 year ARI event to be contained within the drainage easement; 3.5.E incorporate the Works Conditions (annexure B). 3 6 Construction of the Works will be in accordance with clause 3.5. 3.7 Council will ensure that the Works are commenced by no later than 30 March 2010. 3.8 Notwithstanding any other provision of this agreement, Council undertakes to complete the Works as expeditiously as possible. . . . 9 Entire Agreement 9.1 This document contains everything the parties have agreed in relation to the matters it deals with. No party can rely on an earlier document, or anything said or done by another party before this document was executed, except as permitted by law. . . . 16 Waiver 16.1 The fact that a party fails to do, or delays in doing, something the party is entitled to do under this document, does not amount to a waiver of any obligation of, or breach of obligation by, another party. A waiver by a party is only effective if it is in writing. A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion. 7Clause 2.1 contained a definition of "Works" as follows:- Works means an upgrade to the existing stormwater drainage system in the vicinity of the Property as proposed under this agreement including the replacement of the Existing Pipeline, construction of additional drainage pits and other works deemed necessary including landscaping. 8The Works Conditions relevantly contained the following:- Works Conditions 1. . . . . 2. . . . . 3. . . . . 4. Before the start of the Works, Council shall engage an independent vibration monitoring consultant to install vibration monitoring stations along the base of the foundation walls of the adjoining house on the east side for future vibration monitoring. These monitoring stations, which must not be less than 4 in number equally spaced along the lengths of the east boundaries, are to be sufficient in number so that the vibration sensing meter, when placed on the station, is effectively in line between the source of the vibrations and the house being protected. 5. . . . . 6. . . . . 7. . . . . 8. Where excavations extend below the level of the base of the footings of a building on the Property, the person causing the excavation must give the owner of the adjoining property at least seven (7) days written notice of their intention to excavate below the level of the base of the footing and furnish the adjoining property owner with particulars of the proposed work. 9. Suppression of vibrations emitted from the Works is to be undertaken in accordance with industry best practice, to ensure excessive levels of vibration do not occur to minimise adverse effects experienced on any adjoining land. 10. The use of machine operated excavation equipment or other heavy machine operated construction equipment likely to cause ground vibrations is only to be operated when ground vibration monitoring equipment is operating and in place at the east boundary of the Easement site. The equipment is to be placed so that it is always in a direct line (i.e. the shortest distance) between the operating plant and the residence at the Property being protected. The monitoring equipment must be able to provide a continuous (hard copy) record of the vibrations generated and these records made available each day for review by the supervising engineer. The maximum level of vibration at the residence foundations is not to exceed 5 mm per second for 6mm at the property boundary). Any occurrence where the vibration level exceeds 5 mm per second is to result in the machine responsible for the vibration to stop operating and the situation reported to the supervising engineer. The machine can only resume operating after any damage to the adjoining property has been assessed by the engineer and a revised excavation method recommended by the engineer. 11. Any rock breaking or associated work is to be carried out with the use of rock saw. A hydraulic hammer is only to be used to assist in removing rock from the site after it has been sawn. 12. . . . 13. . . . . 9The plaintiff claims that the defendant breached the terms of The Deed in a number of respects, namely: A. It did not use its best endeavours to have design completed by 30 November 2009; B. Delay in providing the final design to the plaintiff for review; C. Failing to provide a design which met the design criteria of The Deed; D. Delay in addressing design issues; E. Issuing tender documents that did not comply with The Deed; F The defendant's contractors contrary to Work Condition 11 began using rock hammers to break up rock without first cutting the rock with a rock saw. 10The plaintiff claims damages under four heads: (1) Costs of repair (including repairing cracking) ($31,600); (2) Legal costs incurred to mitigate damages ($76,118 to date of Further Amended Statement of Claim); (3) Costs of mounting a surveillance camera ($9,009); (4) Cost of retaining a private investigator ($18,545). 11As to (1), the defendant now agrees that it should pay the plaintiff $31,600, but it says there was never any dispute about its liability to pay a sum under The Deed which it is now prepared to accept is $31,600 and that there is no breach of The Deed involved. 12With respect, it does not matter whether there was a breach involved with this $31,600 or whether it is due on the true construction of The Deed. The fact is that it was demanded and had not been conceded until after the present part of the proceedings had been commenced. Although the Council's point may be relevant on the question of costs, there is no reason to my mind why the $31,600 should not form part of the plaintiff's verdict. 13The plaintiff says that I need to find that there were breaches of The Deed and what damages flow from such breaches. I am also asked to deal with the costs of the proceedings after the execution of The Deed (costs before then being dealt with by The Deed itself). 14It can be seen from above that, realistically, I am concerned with the liability of the defendant for the damages claimed under heads (2), (3) and (4) above. 15The proceedings were heard by me on 22 November 2012, Mr M Hadley of counsel appearing for the plaintiff and Mr S Glascott of counsel appearing for the defendant. 16The defendant's case can be summarised as follows: 1. The Council committed no breach of The Deed; 2. If there was any breach, no damages flowed from it. 3. The claims under heads (2), (3) and (4) are all too remote and, in particular, the claim for legal costs is not a proper head of damage; 4. Insofar as the plaintiff's claim is for expenses caused in an attempt to mitigate her damages, it is excessive; 5. The plaintiff did not act reasonably in incurring costs and expenses in alleged mitigation; 6. The plaintiff waived the alleged breaches; 7. Most of the claims made are for money paid by the plaintiff's husband and not moneys for which the plaintiff was liable to pay; 8. The plaintiff's claim is an apportionable claim under the Civil Liability Act 2002. 17It is necessary to note that, after the execution of The Deed, the parties returned to the Court on at least two occasions to deal with problems that had arisen in carrying out The Deed's provisions, mainly to do with delay. Both on 29 March 2010 and 13 October 2010, these forays resulted in consent orders being made setting new deadlines for steps to occur. The defendant says, but the plaintiff denies that these consent orders varied The Deed's obligations or that the plaintiff is estopped from saying otherwise. 18Over 1400 pages of evidence was tendered before me. Unfortunately (for me) a considerable amount was inadmissible, but not the subject of objection. Apart from assistance given by some concessions, I had to consider how much weight to give to this material. 19Alleged breaches A to E detailed above are of little consequence as, if they were not swept away by variation or by an estoppel, they did not cause any damage. However, they are relevant as setting the background on the issue as to whether the plaintiff was reasonably justified in attempting to mitigate feared damage by taking the steps she did. 20Thus, it seems logical to focus first on alleged breach F and then, if necessary, deal with the question of damages, particularly questions of mitigation and remoteness. 21The defendant Council retained a contractor to carry out the work to be done under The Deed. The contractor was Wilkie Group Pty Ltd. 22The contract made between the Council and Wilkie Group was entered into after a tender process. The plaintiff's advisors had considerable input into the documentation. 23The contract contained, among many others, the following term: SP5.4 Any rock breaking or associated work is to be carried out with the use of a rock saw. A hydraulic hammer is only to be used to assist in removing rock from the site after it has been sawn. 24There is little doubt that Wilkie Group was an independent contractor to the Council to carry out the Work required by The Deed. 25Where a Council or other person retains an independent contractor and that contractor causes damage to the plaintiff, there can be a number of different scenarios presented. I will deal with these in summary form.