Di Liristi v Matautia Developments Pty Ltd

Supreme Court of NSW|2021-06-23|Before: Cavanagh J

EX TEMPORE JUDGMENT (REVISED)

This matter comes before me today for the purposes identified in paragraph [205] of my judgment of 11 June 2021 [1] . Reference should be made to that decision for a proper understanding of this judgment.
As I indicated in paragraph [205], in final submissions the defendants made a submission that assessment of damages should await the actual remediation of the land by the defendants. This suggestion had not previously been foreshadowed on behalf of the defendants. There was no application to split the hearing. There was no application that I should only make the declarations sought and stand over the damages issues for another time.
However, as I indicated in my judgment of 11 June 2021, I wished to ensure that there was no agreement or discussion between the parties which might have resulted in the case being conducted on damages in a certain way.
At the commencement of today's hearing, Mr Di Liristi foreshadowed that he wished to make four applications; as it turned out it was really five. I will deal with each of those applications. However, in terms of why the matter was again listed before me today, Ms Avery-Williams, who again appeared on behalf of the first and fourth defendants, informed me that there was no discussion, statement or agreement during the course of the hearing that any damages issues would be deferred for final determination to a later date.
Mr Di Liristi also stated that there was no discussion about what the defendants proposed in their final submissions.
It follows that nothing that occurred during the running of the case was influenced by or affected by what the first and fourth defendants submitted should happen with damages during their final submissions.
The case was run and concluded on all issues. All parties were given an opportunity to adduce the evidence that they wished to adduce, subject of course to my rulings on objections and my rulings on aspects of the evidence. In particular, Mr David Whitting, on whom the defendants rely for the purposes of their damages claim, prepared two affidavits and was extensively cross-examined by the plaintiff. The plaintiff did not ask Mr Whitting any questions about paragraph 56 of his affidavit of 10 December 2020. Nor did the plaintiff raise any issue in respect of the quotes attached to the affidavit. In the circumstances, I am satisfied that there is no reason why the judgment should not now be finalised on all issues.

Application 1

The plaintiff submits that I should disqualify myself for apprehended or actual bias. He points to a number of factors, primarily being the findings that I have already made as contained in my judgment of 11 June 2021. He points to my finding about Mr Whitting, one of the defendants' principal witnesses, as being in effect so wrong that it must demonstrate bias or actual bias. He points to my failure to refer to parts of his evidence. He points to my use of the term "purported dishonesty" when referring to the evidence of the defendants as demonstrating actual bias. He also refers to my decision during the conduct of the hearing to refuse his request for an adjournment, despite his medical condition.
Further, he points to my interruption of him during the hearing which he has counted up at 37 times as indicative of actual bias. Finally, he has obviously done some research as he has ascertained that I used to be a partner at Henry Davis York from the period 1988 to 1998, and he says that he was involved in a case during that period, which cost Henry Davis York a lot of money, and it is impossible to believe that I was not aware of that case and thus was biased against him.
Just dealing with the last point first, unfortunately I am not aware of that case so I confess to having no idea what Mr Di Liristi is talking about. As for the other points, subject to finalisation of the precise amount of the damages recoverable by the defendants, the case is over. I have already made findings which, as Mr Di Liristi submits and acknowledges, were adverse to him. I understand that he rejects the findings. He has informed me on many occasions that he will be going to the Court of Appeal. That is a matter for him. However, as a matter of principle, a complaint about findings in a judgment when the matter comes on for finalisation of the judgment is not a basis for the type of application he makes.
In the circumstances, that application is rejected.

Application 2

The second application the plaintiff makes is an application that this hearing today be adjourned. He relies on medical evidence which I have admitted for the purposes of the application. That medical evidence tends to support the proposition that the plaintiff suffers from a lumbar spine problem and that he will need some steroid injection.
He had a steroid injection last Monday. I did receive emails from Mr Di Liristi about this matter not proceeding today and him being allowed further opportunity when he felt better. I acknowledge that Mr Di Liristi also complained of back problems during the hearing of the matter.
However, Mr Di Liristi is here, and consistent with the way he presented the case, he has demonstrated that he has been quite able to make the submissions that he wanted to make.
His application for an adjournment is refused.

Application 3

The third application he makes is an application for the damages issues hearing to be set down for another day. Again, Mr Di Liristi may misunderstand the nature of what was to happen today. The only reason the judgment was not finalised in written form on 11 June 2020 is because I wished to ensure that Mr Di Liristi was not disadvantaged by anything that might have been said by the legal representatives of the defendants during the course of the hearing about deferring any damages issues. I wished to ensure that Mr Di Liristi had not misunderstood what would be happening on the hearing by reason of any statements made by the defendants, that is the legal representatives of the defendants, during the hearing as to what they intended in terms of dealing with the damages issues.
Both Ms Avery-Williams and Mr Di Liristi have confirmed to me today that there was no discussion, statement or mention during the hearing of any deferral of any damages issues. In the circumstances, nothing said by the defendants caused Mr Di Liristi to take any particular position in cross-examination of Mr Whitting.
The matter has not been listed today for the purposes of any party adducing further evidence on damages. It has only been listed for one purpose and I have dealt with that purpose.
The application for an adjournment to hear further evidence on damages issues is rejected.

Application 4

The plaintiff applies for a seven day stay so that he may obtain legal advice. He says he wished to obtain legal advice from a Mr Norrie of counsel about the judgment. He has not adduced any evidence in support of his application for a stay. He simply says he wants a stay to obtain legal advice.
Mr Di Liristi corrects me during this oral judgment to say he wanted legal advice to finalise the appeal.
It is not necessary that I grant a stay to enable Mr Di Liristi to obtain legal advice to finalise an appeal. If he wishes to obtain legal advice to pursue an appeal he may do so. It is not my function to advise him of how long he has to lodge an appeal. No doubt he can obtain advice about that.
His application for a stay so that he may obtain legal advice about an appeal is refused.
I should say that it seems to me that the application is another application to defer the finalisation of the issues between the parties.
Mr Di Liristi made a number of applications during the hearing on the basis that he needed to seek legal advice on the basis of his medical condition. His email exchanges with me subsequent to the judgment have again indicated his desire to defer the finalisation of these proceedings. If the plaintiff wishes to make a proper application for a stay supported by an affidavit and based on any legal advice, he may do so.
At this stage his application is rejected.

Application 5

The fifth application was to re-open the matter to tender documents about the clean-up costs. In the judgment I referred to the fact that the Clean-Up Notice remained in force as against the first defendant. Over objection, I admitted into evidence an email from Mr Di Liristi dated 16 June 2021 to the Liverpool Council and a response from the Liverpool Council attaching a Clean-Up Notice addressed to him rather than the first defendant.
I asked Mr Di Liristi where in the document I would find any reference to his proposition that the council had withdrawn its Clean-Up Notice against the first defendant. He said that was in his email. As he says in his email: "May I kindly have a copy of that clean up notice as now withdrawn from Matautia Developments Pty Ltd and now issued to me and Tony Di Liristi the tenants."
I observed in my judgment that Mr Di Liristi adopted the approach of sending self-serving emails and then relying on his assertion of fact in the emails to prove the disputed fact [2] . This is another example of that practice.
In any event, the findings that I have made are that the plaintiff was in breach of the residential tenancy agreement for the reasons set out in my judgment. The reason is that he brought onto the defendants' land soil that was contaminated with asbestos. Whilst the fact that the council issued a Clean-Up Notice is a relevant fact, there is no suggestion that any soil has been removed and whether or not a Clean-Up Notice has now been issued to Mr Di Liristi does not impact upon my findings between him and the defendants.
I will now move on to deal with the finalisation of the judgment.

Calculation of Rent

As directed, the first defendant has provided a schedule of rent up to today. It is calculated on the figure of $600 per week from 11 September 2019. Prior thereto it is calculated on the figure of $300 per week. The plaintiff submits that the sum allowed should only be $300 per week because he says that the agreement was that he would only pay $300 per week at times when he was not able to sublease the premises. He says that he was forced to cancel the sublease back in December 2019.
I asked the plaintiff as to where I might find the evidence of the agreement that the rent payable would only be $300 per week if he was not able to sublease. He informed me that that evidence would have come from a Mr Ryan Strauss, whom he thought was going to give evidence, and in some way I indicated would be giving evidence. I take it therefore that there is no evidence of this alleged agreement that rent would be reduced to $300.
In the circumstances, I am satisfied that the first defendant is entitled to recover the amount of the rent set out in the schedule including interest.
The second aspect of the damages that requires finalisation is the costs of remediation. Again, as I indicated in the judgment of 11 June, I would only allow the lower of the quotes provided by the defendants [3] .
The plaintiff complains today that in some way no damages should be awarded, both because he was not given the opportunity to cross-examine on these issues and, secondly, because the costs have not yet been incurred. He further complains that as a matter of law there can be no evidence of loss in a case such as this in circumstances in which the persons providing the quote did not even attend his property.
I reject his submissions. The defendants adduced evidence of the cost of remediating their land. Obviously that evidence would only be of relevance if I found, as I did, that the plaintiff had brought contaminated soil onto the land.
The defendants relied on two quotes. Again, I will only allow the lower of those quotes and, further, even in respect of the lower of those quotes, I will only allow the lower estimate in that particular quote. The estimate is thus that the work to be undertaken will take three days, that is the removal of the soil, which based on the Argus report is estimated to be 950 tonnes.
The final issue on damages relates to the defendants' claim for the additional items, which are set out in paragraph 56 of the affidavit of David Whitting of 10 December 2020. I had not made reference to the sum in paragraph 56 because I had overlooked paragraph 56 when preparing my initial judgment. Paragraph 56 was admitted into evidence. Mr Whitting gave evidence and he was there to be cross-examined by the plaintiff if the plaintiff wished to question him on these issues.
Today the plaintiff makes various submissions about the vagueness of Mr Whitting's estimate and again makes a submission that Mr Whitting should not have been accepted as an experienced project manager or, indeed, as I understand it, that none of his evidence should have been accepted.
Ms Avery-Williams directed my attention to the support for the items referred to in paragraphs (a), (b) and (c) of paragraph 56 of Mr Whitting's affidavit. I will deal with each.
The defendants seek traffic control costs in the sum of $350 per day. The estimate of EMS Enviromanage Systems Pty Ltd of 6 May 2020 at the low end suggests three days. I allow three days at $350 per day.
Mr Whitting refers to environmental consultation costs, which he estimates at 5 per cent of the total cost. Again the defendants point to the Clean-Up Notice and the reference to the need for an environmental consultant. There being no challenge to the 5 per cent estimate during the hearing of the matter, I accept that it is a proper estimate.
Similarly, having regard to the work which EMS suggests it will be undertaking, which essentially involves removal of the soil, it must be that in a project such as this it will be necessary for there to be a project manager. On my findings, the plaintiff introduced soil onto the land which contains asbestos. It must be removed. It is inevitable that there will need to be a project manager. I accept the estimate of 2.5 per cent.
The defendants further claim an additional 20 per cent on account of contingencies. I do not accept that estimate. The evidence is not sufficiently detailed to allow an additional 20 per cent on account of contingencies. If the defendants wished to add 20 per cent to their quote they could have called evidence from EMS to establish evidence about all the various things that might have happened and why the estimate should be increased by 20 per cent. That sum is not allowed.
The first defendant is entitled to damages on its cross-claim assessed as follows:- Head of Damage Amount Unpaid Rent (including interest) $60,238.42 Remediation costs $232,652.00 Traffic control costs $1,050.00 Environmental consultation costs $11,632.60 Project management costs $5,816.30 Total $311,389.00

The defendant seeks costs of the proceedings. The plaintiff initially opposed any order for costs. The plaintiff relies upon two emails from him to the solicitor for the defendants, that is of 16 and 17 February 2021. The first email is expressed to be without prejudice save as to costs. In that email, the plaintiff made an offer in terms that: "1. All litigation cease forthwith, or at least when the agreement is signed. 2. He will leave the premises within six months from that of signing the agreement. 3. Everyone walk away with no further cost to any party. 4. You can prepare the agreement for me to sign."
The plaintiff sought to explain in his emails why the offer should be accepted and the basis of the offer. I apprehend that he submits that as he made an offer to walk away, he should not be liable to pay the defendants' costs.
The plaintiff did make an offer in the terms I have just recorded. However, the offer says nothing about the defendants' entitlement to damages. Further, the offer was to the effect that the plaintiff would leave the premises in six months in circumstances where on my finding he should have left the premises back in 2020.
Plainly the defendants have done significantly better than the offer made to them. No other reason has been advanced why the plaintiff should not pay the costs, and I order that the plaintiff pay the costs of the proceedings.

Orders 1. Judgment for the First Defendant on the First Defendant's cross-claim against the plaintiff in the sum of $311,389.00. 2. Plaintiff to pay the Defendants' costs. 3. Order that the proceedings be transferred to the Tribunal for the making of an order for termination of the residential tenancy agreement dated 7 June 2019 and possession of the premises at 62 Kelly Street, Austral in accordance with the declarations of the Court made on 11 June 2021.

Endnotes

Di Liristi v Matautia Developments Pty Ltd (No 6) [2021] NSWSC 663 ("Di Liristi (No 6)")
Di Liristi (No 6) at [62]
Di Liristi (No 6) at [202] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 June 2021

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