The failure of each of the respondents to minimise Loss and Damages to the Applicant at the earliest point in 2007 by fulfilling their statutory and contractual obligations has exacerbated the quantum of the harmed and loss suffered by the applicant.

Victorian Civil and Administrative Tribunal|2013-03-28

The applicant's investigations have revealed that the responsibility for the collapse of the dwelling rests with the First and Second respondents...

(ii) The First Respondent failed to properly maintain its Sewer infrastructure leading to it becoming cracked and broken (Annexure "D") & (Annexure "E") which allowed it to leak and this lead to the saturation of the soil below the foundations of the dwelling leading to the collapse of the dwelling.

The are an number of cracks in all sewer lines, particularly in the line from PRC8-500 to PRC8-500P where they start where the sewer pipe joins the pit and continues on there after a number of which are on the property.

The failure of each of the respondents to minimise Loss and Damages to the Applicant at the earliest point in 2007 by fulfilling their statutory and contractual obligations has exacerbated the quantum of the harmed and loss suffered by the applicant.

The Dwelling in the first instance may have been able to be repaired now required demolition and reconstruction.
This has caused cost and harm to the applicant, which costs have increased over the period since 2007. [sic]
The claim against South East Water is further detailed in the Proposed Amendment and Addition to Points of Claim as follows:
1. In regards to the First Respondent South East Water (SEW) amending and adding to point 5 at subpoint (i) and (ii):

(a) Under the Water Act 1989 Sec. 16 the Applicant has protection arising from a flow of water to the property. SEW has a liability by way of their negligent conduct in allowing an unreasonable flow of water from the land in its jurisdiction via the created easements under the Water Act 1989 Sec. 136 to flow to the applicant's land and cause damage to the dwelling. The applicants seek remedies for the economic loss suffered.

(b) Under the Water Act 1989 Sec. 157 the applicant has protection from the flow of water to her property. SEW has a liability by way of being negligent conduct in allowing an unreasonable flow of water from its works on to the applicants land causing the applicant economic loss or damage to her dwelling. The applicant seeks remedies for the economic loss suffered.

(c) Under the Water Act 1989 Division 2 Part 2 Sec. 19 the applicant has protection via the jurisdiction of the Tribunal in relation to all causes of action. SEW wrongful acts of negligence have violated the applicants right and she seeks remedies for the subsequent damage.

In my view, the paragraphs extracted from the Points of Claim and the Proposed Amendment and Addition to Points of Claim identify the following allegations:
- (a) The applicant is the owner of land on which the residential dwelling is constructed.
- (b) Sewer pipes owned or maintained by South East Water service the Applicant's property.
- (c) The sewer pipes are damaged and leak.
- (d) The leaking sewer pipes have caused damage to the dwelling located on the Applicant's property.
- (e) The Applicant suffered loss and damage as a consequence thereof.
- (f) The Tribunal has jurisdiction to order that South East Water pay damages to the Applicant either pursuant to s.16 or s.157 of the Water Act 1989.
I accept that the Points of Claim and the Proposed Amendment and Addition to Points of Claim are convoluted and allege matters which are not relevant to the issues set out above. Nevertheless, it cannot be said that the Points of Claim and the Proposed Amendment and Addition to Points of Claim do not disclose a cause of action against South East Water justiciable in this Tribunal. Therefore, I am of the view that it is appropriate to adopt what I have stated above; namely, that the Applicant redraft her Points of Claim, bearing in mind that the claim should focus on her claim under the Water Act.
Allegations regarding the subdivision of the parent title, creation of easements, introduction of fill over the expunged road and other matters under the Planning and Environment Act are not, in my view, relevant to the claim under the Water Act. In particular, as I understand the claim against South East Water, it is relatively simple and relates to the allegation that it has been negligent in failing to maintain its infrastructure works, which have caused damage to the Applicant's property. The Points of Claim should be redrawn on that basis. The other matters pleaded are, in my view, irrelevant and should be omitted from the re-drafted document.

As indicated above, the Insurer also foreshadowed an application to strike out the claim against it. No submissions were made by Mr Sawkins who appeared on behalf of the Insurer. Therefore, I am not aware of what aspects of the claim against the Insurer are said to have no tenable basis in fact or law.
The claim against the Insurer rests on a finding that it has failed to perform its obligations under a contract of insurance between it and the Applicant, concerning damage to the Applicant's property. In my view, the Tribunal has jurisdiction to hear such a claim pursuant to the Fair Trading Act 1999 (if applicable) or alternatively, Australian Consumer Law. Both these Acts have been referred to in the Proposed Amendment and Addition to Points of Claim.
I accept, however, that the Points of Claim and the Proposed Amendment and Addition to Points of Claim over complicate such a claim by making reference to extraneous and irrelevant matters.
However, in the absence of an application to strike out the claim against the Insurer and without hearing any submission made by the Insurer on that point, it is inappropriate for me to deal with such an application at this time. Nevertheless, given that I will order that the Applicant re-draft her Points of Claim in its entirety and in a more succinct manner, it is appropriate that the claim against the Insurer also be revisited. In other words, I am of the opinion that it would be appropriate for the Applicant to amend her claim against the Insurer having regard to what I have said in these reasons so that the claim is expressed clearly and succinctly.
Having said that and given that the claim against the respondent exceeds $600,000, it may be of some utility if the revised Points of Claim is prepared or at the very least, settled by a legal practitioner before filing and serving the document.
Accordingly, I will order that the Applicant re-draft her points of claim. On that basis, the strike out applications by South East Water and the Council will be dismissed with liberty to re-apply, should the re-drafted document still suffer from defects.

[4] Fancourt v Mercantile Credits Pty Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; Lay v Alliswell Pty Ltd (2001) VSC 385 at paragraph 14; State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, and Forrester v AIMS Corporation [2004] VSC 506

[6] Taitapanui v HIA Insurances Services Pty Ltd [2002] VCAT at paragraph 8.

[7] Burke v Victoria [2002] VCAT 1397 at paragraph 3.

[8] Arrow International Australia Pty Ltd v Indevelco Pty Ltd [2005] VCAT 306.

[9] Zaparenko v Perpetual Trustees Victoria Ltd [2006] VCAT 2147 at paragraph 11.

[10] Klona v Cummins Engine Co Pty Ltd [2002] VCAT 733.

[11] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102,.

[12] Barbon v West Homes Australia Pty Ltd [2001] VSC 405 at paragraph 16-17.

[13] [2001] VCAT 406 at paragraph 11.

[15] Points of Claim dated 31 January 2013 at page 4.

Fleming v South East Water & Ors (Real Property) [2013] VCAT 349 (28 March 2013)

Fleming v South East Water & Ors

At a glance

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Decision date

Source

Judgment (25 paragraphs)

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Legislation Cited (3)

Cases Cited (2)

Fleming v South East Water & Ors (Real Property) [2013] VCAT 349 (28 March 2013)