Galea v Farrugia

Background 10The plaintiffs and their two adult children, Paul Jnr and Catherine, resided in and/or owned properties in Bernera Road, Prestons. In November 2001 those properties were sold to AV Jennings Limited ("Jennings"), a building company, which purchased the land for subdivision. Part of the agreement with Jennings was that it would construct a residence for Catherine on property A. This would complement an existing house on property A in which the plaintiffs proposed to live. 11The first and second defendants conducted an earthmoving business "D & M Farrugia Excavating" in which they contracted the services of the first defendant and his equipment to others. In March 2002 the business was incorporated as Farrugia Excavating Pty Limited. 12Between October 2001 and February 2002 the first plaintiff, on behalf of Lepipi, retained the first and second defendants to repair and extend dams and to repair a driveway located on property B. The work was done. This was the first time that the plaintiffs had employed the first and second defendants. In early 2002 the plaintiffs retained the first and second defendants to repair the driveway and remove a telegraph pole on property A. The work was done. All work done by the first and second defendants was promptly paid for. Payment arrangements were that if an invoice issued it would be paid by cheque and if no invoice was issued the first and second defendants would be paid cash. 13Whilst the work on the driveway on property A was being done, or shortly after its conclusion, there was a conversation between the first plaintiff and the first defendant in which the plaintiffs' need for fill for property A was mentioned. The first plaintiff stressed he was uncertain of dates but he accepted that this conversation occurred on 20 March 2002. There is a conflict in the evidence as to the precise terms of the conversation and its legal effect. This will be considered in more detail later in this judgment. It suffices for present purposes that the first defendant referred in that conversation to the fourth defendant as a potential supplier of the fill required by the plaintiffs. 14The third defendant carried on business as an excavator, demolisher and earthmoving contractor from premises at The Northern Road, Londonderry (the fourth defendant's home) and Church Street, Cranebrook (the fourth defendant's father's residence and truck yard). The fourth defendant and his wife were the directors of the third defendant. 15Approximately one to two weeks after the conversation between the first plaintiff and the first defendant fill commenced to be deposited on property A by the third and/or fourth defendant. The fill was levelled and compacted by the first defendant. 16The period during which fill was deposited by the third and/or fourth defendant on property A was pleaded by the plaintiffs as being between March 2002 and 12 August 2002 (statement of claim), 20 March 2002 and 31 May 2002 (amended statement of claim), 20 March 2002 and 31 August 2002 (further amended statement of claim), 20 March 2002 and 25 July 2002 (second further amended statement of claim), 20 March 2002 and 25 July 2002 (third further amended statement of claim). 17On Monday 29 April 2002 a telephone call was received by Mr McLaggan, the Council's Senior Environmental Health Officer, from the plaintiffs' neighbour, Mr Bryant who said that: "Waste material is being brought onto premises located at [property A] over Saturday and Sunday. It started early in the morning and finished late in the night. There is a huge pile. Does it have approval?" 18On the same day Mr Muscat, another neighbour, telephoned Mr McLaggan and said: "Are you one of the environmental blokes because on the weekend, all day Saturday and Sunday, there were lots of trucks coming into the premises at [property A] and dumping. I have contacted Council before. Something needs to be done." 19On 30 April 2002 in response to the complaint a site visit was made to property A by Mr McLaggan. 20On 2 May 2002 Mr Muscat wrote to the Council stating: "there have been thousands of tones of fill dumped on this property approximately 3/4 the size of a football field of concrete covered by clay... Our concerns are, is this fill contaminated, has it been checked? If this fill is contaminated it can only end up in the waterway there is nowhere else it can go. It is elevated above our property to the South East; this also causes a noise problem. When they are dumping fill, slamming tailgates shut, and their trailers bounce on the way out. Furthermore, the dust created by earthwork and trucks looks like a dust storm especially on weekend, it doesn't stop. They have started as early as 4.30 in the morning and finished as late as 11.30 at night..." 21A letter of complaint was received by the Council from a neighbour, Mr Tabone, on or about 8 May 2002. Mr Tabone wrote: "There has been a lot of land fill being delivered to this address. The noise and dust that these trucks are creating are making life extremely unpleasant for myself and my family. This has been going on for several weeks and I am now very annoyed about it, especially as they are operating from 6.30 am on a Sunday morning...I am a boundary neighbour to this property and am mostly concerned about what type of fill is being used. I have not received any notice from Council regarding this activity and therefore am concerned that what is happening may be illegal. Because I am unaware of the type of fill being used, I am worried about the run-off and possible contaminants onto my property beyond which is part of the catchment area and head water of Duncan Creek..." 22On Monday 13 May 2002 a telephone complaint was made by Mr Muscat to Mr McLaggan that "over the weekend more fill has come onto the site". 23A further site visit was made on 13 May 2002 by Mr McLaggan, together with another Council officer, Mr Stone. Mr Stone directed the plaintiffs to stop depositing fill on property A until the development application "is sorted out". Pursuant to that instruction, the first plaintiff notified the first and second defendants on 4 June 2002 and the fourth defendant on 5 June 2002 that no more fill was to be delivered. Further site visits by the Council officers occurred over the following months. 24Mr Bryant wrote on 14 May 2002: "This letter is to bring to your attention that at [property A] the amount of dumping that has been taking place on the said property and the ridiculous times both day and night as late as 10.00 pm (on Saturday 27/4/02) and as early as 6.30 pm [sic am] (on Sunday 28/4/02) with trucks and machines making excessive noise. With the height they have filled to, and no silt fencing to safeguard against rain runoff. As we live on an elevated position we are getting dust from the dump site. We have not complained before this as we assumed that it was not going to be that great amount of fill that went into the site, but it just kept comming [sic] mostly after hours or weekends. Now we see them filling the back paddocks (on 13/5/02) and once again no silt fencing." 25On 30 May 2002 Mr Stone, on behalf of the Council, issued to the plaintiffs a Notice of Proposed Order under s 121B of the Environment Planning Assessment Act 1979. The terms of the proposed order were: "1. To remove the unauthorised landfill placed on the premises. 2. To cease using the premises for the purpose of landfilling. 3. To restore the premises back to the natural level before the unauthorised landfill was placed on it. 4. To show that the premises is free of any contaminated material... The reasons why the order is proposed to be given are:

1. Premises are being used for a purpose that needs development consent under the Liverpool Local Environmental Plan 1997 that applies to the premises, but has not been obtained..." On 5 July 2002 the order was made pursuant to s 121B. 26On or about 8 July 2002 a development application dated 15 May 2002 was lodged with the Council by the plaintiffs. The application sought approval for the erection of farm machinery sheds on property A. The application was rejected by the Council. 27On 7 August 2002, 19 September 2002, and in March 2003 samples were taken from the fill on property A by Mr McLaggan and on 12 September 2002 by Ms Leo, an authorised officer of the EPA. 28On 12 August 2002 Mr McLaggan issued to the plaintiffs a direction to take clean-up action pursuant to s 91 of the Protection of the Environment Operations Act 1997. The direction required, inter alia, the removal of all "waste material and other excavated or landfill materials from the premises" by 23 September 2002. Clean-up notices under s 91 were also issued to the first, second and third defendants in respect of property A, to the third defendant in respect of property B and the fourth defendant's properties at Londonderry and Cranebrook and properties at Garfield Road, Marsden Park and Belmore Road, Bringelly. 29On 19 September 2002 there was a meeting between Messrs McLaggan, Stone, the first plaintiff, the first defendant and the fourth defendant. At that meeting Mr McLaggan approved an extension of time for removal of the land fill to 31 October 2002. The defendants came to an arrangement with the plaintiffs to remove some of the fill. 30Pursuant to that arrangement, the third defendant, between 21 and 24 September 2002, allegedly removed some of the fill from property A and disposed of it at Lansdowne tip. No fill was removed by the defendants thereafter. There are issues between the parties as to the terms of the arrangement to remove the fill, the amount of fill removed, whether the fill was properly disposed of and why the removal ceased. These matters are considered later in this judgment. 31On 30 January 2003 the Council served on the plaintiffs an Application in the Land and Environment Court. The Application claimed the following relief: "1. A Declaration that the Respondents have carried out or caused to be carried out development at [property A] being landfill and earthworks without consent in breach of the Environmental Planning and Assessment Act 1979.
2. An Order that the Respondents, their servants and agents be restrained from carrying out any further landfill or earthworks at the Property otherwise than with the consent of the Applicant.
3. An Order that the Respondents remove all waste material and other excavated or landfill materials from the Property.
4. An Order that the Respondents transport the waste materials and other excavated or landfill materials to an approved waste facility licensed by the NSW Environment Protection Authority.
5. An Order that the Respondents provide suitable sediment control measures along the boundary/ies of the Property to prevent the egress from the Property or discharge of pollutants from the Property to the natural watercourse or flow past drainage system or other receiving water system.

The issues 38Many issues have been joined by the parties in these proceedings. They are considered hereunder.

The contract for the supply of fill 39The plaintiffs allege there was a contractual relationship between them and the defendants in respect of the supply of the fill. The contract is pleaded in the following terms in the third further amended statement of claim: "3. ...In or about early March 2002 the first defendant on behalf of himself, the second defendant and/or on behalf of the third or fourth defendant entered into an oral agreement with the plaintiffs pursuant to which the plaintiffs agreed for the first and/or second defendants for and on behalf of the third or fourth defendants to bring to the Land, deposit thereon and to level so as to raise the level of the land to the stipulated height for which the plaintiffs agreed that they would accept the fill without requiring the first and second defendants and/or the third or fourth defendants paying to the plaintiffs a fee. 4. Prior to the conversation and agreement referred to in paragraph 4 above the first defendant on behalf of himself, the second and third defendants made the following representations to the plaintiffs: REPRESENTATIONS (i) That the third defendant would bring fill to the Land. (ii) That the fill would be 'clean fill'. (iii) That the first and second defendants would spread the fill on the Land to the height stipulated by the plaintiffs. 5. A short time later and in or about early March 2002 Mr Joe Cauchi, the fourth defendant on behalf of himself and the third defendant met with the first defendant on behalf of himself and the second defendant and Mr Paul Galea on behalf of himself and Mrs Galea at which time the fourth defendant on behalf of himself and/or the third defendant agreed with the plaintiffs that the fourth defendant on behalf of the third defendant could bring fill to the Land, and that the first and second defendants would spread the fill to the level required by the plaintiffs for which agreed to accept the fill without cost. 6. At the time of the making of the agreement referred to in the preceding paragraph, and prior thereto the fourth defendant on behalf of himself and the third defendant made the following representations to Mr Paul Galea on behalf of the plaintiffs: REPRESENTATIONS (i) That the third defendant would bring fill to the Land. (ii) That the fill would be 'clean fill'. (iii) That the first and second defendants would spread the fill on the Land to the height stipulated by the plaintiffs. 7. Induced by the representations set out in paragraphs 4 and 6 above, and in reliance thereon Mr Paul Galea on behalf of the plaintiffs entered into each of the agreements referred to in paragraphs 4 and 6 above." 40The initial agreement was alleged to have arisen out of the conversation between the first plaintiff and the first defendant on 20 March 2002. The first plaintiff's version of that conversation, as asserted in his affidavit, was in the following terms: "Paul Galea: 'I am going to build a shed right behind Catherine's house over there. It is going to be a machinery shed so that I can put all my tractors, trucks and everything inside.' David Farrugia: 'If you are going to build there you will need to level out the land. Leave it to me, I can get the fill for you. I will get good fill so that it will never move. I known a fellow called Joe Cauchi, and he can get the fill for you. This is for free. We will level it out for you. You don't have to pay anything.' Paul Galea: 'That's good. As long as you do a good job, David, I will leave it to you.' David Farrugia: 'You don't have to worry. I'll do a good job for you.' Paul Galea: 'Whenever you want to get into the property tell me, and I'll unlock the gates for you.' David Farrugia: 'I will telephone you when we are ready to commence.'" 41The first defendant's version as asserted in his affidavit is in the following terms: "Galea: 'We are going to fill up this area to a level from the deep part (pointing towards the north western wire fence met the smaller white pipe fence) to the driveway and I am going to put a shed here.' Farrugia: 'You are going to need plenty of fill and I can't get any fill. You know Joe Cauchi? You should speak to him, he can organise it. I'll give you his number if you need it.' Galea: 'I think I've got his number but give it to me anyway, I'll speak to him and see if he can organise me some fill. Can you spread it for me?' Farrugia: 'Yes.'" 42In support of his version of the conversation the first defendant asserted he provided the fourth defendant's phone number to the first plaintiff at that time. The first plaintiff denies this. His evidence was he did not know the fourth defendant and was not provided with his telephone number until immediately before the first defendant departed for an overseas holiday on 28 May 2002. 43A schedule of telephone calls is in evidence. The schedule identified the following phone calls made by the first defendant to the fourth defendant on 20 March 2002: Time Duration

5.20pm 9.26 minutes 5.38pm 4.36 minutes 6.35pm 5.55 minutes The exhibit also discloses the absence of any telephone calls from any of the numbers employed by the fourth defendant to the plaintiffs until 24 May 2002. Similarly, the telephone records disclose no telephone calls from the first plaintiff to the fourth defendant prior to 5 June 2002. 44The schedule revealed the first telephone call from the first defendant to the first plaintiff was on 24 May 2002 and the first telephone call from the first plaintiff to the fourth defendant was on 5 June 2002. Counsel for the first and second defendants conceded the first defendant had told the fourth defendant the plaintiffs wanted fill. I do not accept that the first defendant gave the first plaintiff the fourth defendant's telephone number on 20 March 2002. 45I note, though it is not necessary to my conclusion, that the first defendant said in his affidavit that he "similarly arranged fill for Mr Shallala at a property at 108 Belmore Road, Bringelly." Mr Shallala denied he had been provided with the fourth defendant's phone number by the first defendant. The first defendant conceded he may have said to Mr Shallala that he would get onto the fourth defendant and organise the soil for him. 46There was no evidence of contact between the fourth defendant and the first plaintiff prior to commencement of the delivery of the fill. The fourth defendant did not give any evidence as to how he came to be involved in the delivery of the fill to property A. 47Excavation work gives rise to the need to dispose of the material excavated. Disposal of excavated material at a public tip requires the payment of significant tipping fees. Disposal of the excavated material as landfill on a private site avoids the need to pay tipping fees, providing the excavator with an economic advantage over competitors and providing an opportunity to charge the client tipping fees when such were not incurred by the excavator. It was in the third and fourth defendants' interests to acquire access to private tipping sites. 48The first and second defendants were longstanding friends of the fourth defendant and his wife. They holidayed together in Malta and other places in 2002. I accept that the first defendant would, on occasions, notify the fourth defendant if he observed a prospective private tipping site which may be of interest to the fourth defendant. 49In my opinion, the first defendant had no intention to legally bind himself to supply the fill. There was insufficient evidence he had, or represented that he had, authority to bind the third and/or the fourth defendant to supply the fill. He lacked the capacity to do so himself, possessing neither substantial quantities of fill nor the trucks with which to move it. 50In my opinion, the first defendant's role insofar as the supply of the fill was concerned was to convey an offer on behalf of the plaintiffs to accept good, clean fill free of charge from the fourth defendant as undisclosed agent for the third defendant. The first defendant conveyed the offer on 20 March 2002 to the fourth defendant, which offer was accepted by delivery of fill to property A by the third defendant. 51The contract was confirmed at the first meeting of the first plaintiff (on behalf of himself and the second plaintiff) and the fourth defendant, on behalf of the third defendant. Alternatively, the contract between the plaintiffs and the third and/or fourth defendant was made at that time. 52The defendants attempted to distinguish clean fill from good fill. Reference was made to Watson v Foxman (1995) 49 NSWLR 315 at 318.9. It was submitted that asbestos contaminated fill could be good, though not clean, fill and that the first plaintiff's version of the conversation was unclear. Accordingly, it was necessary to determine whether it was fill which was "clean" or "good" or both that was sought. 53In my opinion, in this matter the words "good" and "clean" are used interchangeably in relation to fill. Each would exclude fill containing asbestos, such fill being neither good nor clean. It was an implied term that the fill should be clear of asbestos contamination irrespective of whether the words used were good, clean or both.

Agreement for levelling and compacting the fill 54The first defendant alleged the plaintiffs had agreed to pay him to level and compact the fill delivered to property A by the third and/or fourth defendant. 55The plaintiffs conceded that the first and second defendants did level and compact the fill but said that payment for that work was to be made by the third and/or fourth defendant, not the plaintiffs, the basis of the agreement being that the fill, including the levelling and compacting of it, would be free to the plaintiffs and there was no agreement by the plaintiffs to pay for such work. 56The first defendant gave evidence he performed levelling and compacting work using a drott at property A on 5, 6, 7, 10, 16 and 17 April 2002. He produced invoice 0001 dated 30 April 2002 allegedly issued to the first plaintiff for that work as evidencing that his contract for payment for levelling and compacting was with the plaintiffs. The amount of the invoice attributed to drott hire, the use of a float and GST was $1155. The first defendant initially asserted the invoice had been paid in cash by the plaintiffs though he became uncertain under cross examination, ultimately stating that it had not been paid. The plaintiffs asserted the invoice had not been paid. The plaintiffs denied ever receiving it. No account rendered or other steps were taken to obtain payment from the plaintiffs. 57Farrugia Excavating Pty Limited issued invoices 003-007 inclusive to All On Landscaping, a business name used by the third and/or fourth defendant. Invoice 005 included a charge of $595 plus GST for work by Farrugia Excavations Limited in respect of property A. These invoices were paid by the third or fourth defendant. 58The first and second defendants produced all invoices between invoice 001 and 0013 save for invoice 004 which was not produced by any defendant despite requests, subpoenas and notices to produce. No explanation for the absence of that invoice was given save that it must have been lost. 59The plaintiffs calculated the amount claimed in invoice 004 at $1155. This coincided with the charge for drott hire, use of a float and GST on invoice 0001. The plaintiffs submitted that invoice 004 was a charge for the drott hire, use of float and GST referred to in invoice 0001. 60Invoice 004, if as contended by the plaintiffs, was sought to be explained away by the defendants as an error both in its preparation and delivery to the third and/or fourth defendant and in its payment by the third and/or fourth defendant. The explanations were unconvincing. 61The second defendant did not accept that invoice 0001 was prepared well after 30 April 2002 in order to support the first defendant's submission that he had been retained by the plaintiffs to level and compact the fill on property A. 62In my opinion, the first defendant, on behalf of himself and the second defendant, agreed with the plaintiffs to level and compact the fill deposited by the third and fourth defendant on property A without charge to the plaintiffs. The third defendant agreed to pay the first and second defendants for such work it being the business cost of obtaining access to a valuable tip site.

Was asbestos present in the fill on property A? 63The fill was used primarily to construct an earth platform. The platform had a flat top that was compacted with batters down the sides. 64I accept the expert evidence that in order to establish the presence of asbestos in the fill, it was necessary to conduct laboratory tests on samples taken from the fill generally using either a polarised light microscopy or dispersion straining method. These laboratory tests were the most widely used though other laboratory methods do exist. I accept there were no tests other than laboratory tests to conclusively determine the presence of asbestos in a sample, though experienced or NATA qualified persons could visually identify materials likely to contain asbestos. A stereo microscope could be used in the field to assist in visual identification of material likely to contain asbestos but it was not, by itself, an adequate scientific test. 65The laboratory tests did not, and were not intended to, determine the quantity or distribution of asbestos on site. It was sufficient for the EPA and Council purposes that the presence of asbestos in the fill be demonstrated. 66Four samples were taken from the fill on property A by Ms Leo (EPA) on 12 September 2002. The samples were taken by Ms Leo because she believed they may have contained asbestos. They were taken from an area where it was likely a third party, rather than the third defendant, had deposited fill. Subsequent laboratory testing detected asbestos in three of the four samples. 67Samples were taken from the fill on property A by Mr McLaggan on 7 August 2002, 19 September 2002, 13 March 2003 and 16-20 March 2003 inclusive. In all, 13 samples were taken. Laboratory testing of these samples detected asbestos in 12 of them. The samples taken by Mr McLaggan in 2003 were taken during the removal process from different positions and different heights as layers of fill were removed. 68In my opinion, this testing established that, at least at the date the positive samples were taken, asbestos was present in the fill on property A.

Was the fill deposited on property A by the third and/or fourth defendants contaminated by asbestos at the time of deposit? 69As previously stated, the plaintiffs allege the whole of the fill deposited on property A was deposited by the third and/or fourth defendant and that that fill was contaminated by asbestos. The defendants accept that some of the fill, but not all, was deposited by the third defendant but they assert the fill deposited by the third defendant was not contaminated by asbestos, and if there was asbestos contamination in the fill on property A then it was deposited there by a third party or third parties. The fourth defendant did not separately supply fill to the plaintiffs. 70It is fundamental to the success of the plaintiffs' claim against the defendants that the plaintiffs establish that the third and/or fourth defendant deposited (a) the whole of the fill on property A or (b) at least some of the fill and that the fill deposited by the third and/or fourth defendant was contaminated by asbestos at the time of its deposit.

Did the third and/or fourth defendant deposit the whole of the fill on property A?

Business records 71In the ordinary course, it may have been expected that the business records of the third and/or fourth defendant would have revealed the total amount of fill delivered to property A by the third defendant and a comparison of that figure with the amount of fill subsequently removed from property A would have established whether the whole of the fill on property A had been deposited by the third defendant or not. 72As earlier stated, the fourth defendant and his wife were the directors of the third defendant. Mrs Cauchi was responsible for the day to day administration of the business, the fourth defendant for the day to day management and operation of trucks, plant and equipment. Mrs Cauchi gave evidence that the third defendant had the following relevant business records: (a) the Cauchi Civil diary recording the allocations of drivers by name and vehicles by registration number, and Mr Attard's diary; (b) truck dockets. These were contained in a booklet issued to drivers. The dockets were in quadruplicate, the top copy being white, the last copy being pink, the intermediate copies being blue and yellow. Mrs Cauchi gave evidence that in respect of each delivery the white copy was forwarded with the invoice to the client, the pink copy was retained in the booklet, the other copies were given to the appropriate persons at the loading and unloading sites; (c) daily run sheets. These were completed by the drivers and recorded arrival and tip times and hours of work; (d) invoices to customers for work done, recording registration number and number of loads (or hours if on hourly hire); (e) bank statements recording the payment of the invoices. 73The truck dockets and daily run sheets made provision for the entry of the destination of the delivery. However, in the majority of cases there was no entry under that heading or the entry was not sufficient to enable identification of the delivery site. The documents generally identified the site to which the fill was delivered as "Our tip". That could have meant property A or any of the other private tips accessed by the third and fourth defendants. 74In these circumstances, it is not possible to deduce from the records how many tonnes of fill were delivered by the third defendant to property A or to correlate that figure to the total amount of fill removed from property A. 75The plaintiffs kept no record of deliveries made to property A by the third defendant. Calculations 76In the absence of business records identifying each delivery, the plaintiffs sought to establish the amount of fill deposited by the third defendant based upon calculations as to the capacity of the first defendant's drott and excavator working full time on the working days recorded by the first defendant. These calculations are speculative and in my opinion they cannot be relied upon to establish the amount of fill deposited on property A, nor do I accept the fourth defendant's calculation that the amount delivered to property A and property B by the third and fourth defendants was between 2000 and 3375 tonnes. The basis for such calculation was not sufficiently revealed to enable any conclusion in this regard to be reached and appears to bear too small a relationship to the amount of fill removed from property A.

Admission by the fourth defendant on behalf of himself and the third defendant 77It was submitted that in the course of an interview with Mr Stone, recorded in a record of interview dated 19 September 2002, the fourth defendant, on behalf of himself and the third defendant, admitted that he brought all of the fill to property A. For reasons which appear later in this judgment, I do not consider the admission which was made was as wide as is contended for.

Access to property A 78The plaintiffs sought to establish that access to property A was controlled by them in such a manner that the Court should infer the whole of the fill was deposited by the third defendant. 79Property A comprised 25 acres. It was fenced with a 6 foot chain wire fence topped by barbed wire. There was no evidence that the fence was damaged or in a state of disrepair so as to permit entry of trucks. At the relevant time no-one resided at the property. There was only one means of access and that was provided by two six foot double chain wire gates. 80The first plaintiff gave evidence that following the purchase of property A he always kept the gates locked with a chain and padlock; initially there was only one lock; only the first plaintiff and Integral Energy had a key to that lock; the first defendant would telephone the first plaintiff when the third defendant's trucks required access to property A; the first plaintiff would then unlock the gates on the morning of the designated day to enable access to those trucks when they arrived; deliveries could be as early as 6.30 or 7.00 am; he would open the gates but leave them with the appearance of being locked (dummy locking); no person was assigned to control the entry of trucks through the gates; the first plaintiff on occasions would be present when tipping was occurring or the first defendant was working on the fill; the gates would be locked by the first plaintiff at about 4.30 pm or if trucks were present at that time, when the last truck departed; he did not leave the gates open after he had informed the first defendant not to bring any more fill onto the site following the Council visit on 13 May 2002. 81The first plaintiff gave evidence that there was an occasion when he opened the gates for Jennings upon its request but thereafter Jennings had its own lock and the Jennings' supervisor had the key to that lock. After that lock was fitted the first plaintiff never opened the gates for Jennings. 82The defendants submitted that the first plaintiff's evidence as to access to property A should be rejected as it was inconsistent with the evidence of the plaintiffs' family members, the EPA and Council inspectors, Jennings' supervisor and the defendants. That evidence was, in brief, as follows: (a) Catherine Azzopardi gave evidence the chain on the gates was cut by Jennings. She was informed of this in a telephone conversation with Mr Bryce, the Jennings' building supervisor. Thereafter there were three locks on the gates but such that persons with the key to one lock could open the gates. She had her own key to the gates. The gates were always kept closed except when opened to allow admittance of persons retained to perform work on the property; (b) Mr Bryce visited property A four days a week at random times to supervise the building of Ms Azzopardi's home. He could not recall any padlock on the gates. He said Jennings did not have a padlock on the gates. Sometimes he arrived there when there was no-one else on the site and the gates were unlocked. He had no telephone conversation with Ms Azzopardi of the kind she claimed. An entry for 30 January 2002 in the Jennings correspondence report noted: "AV Jennings advised Catherine Azzopardi the pad lock on the gate needs to be taken off. The gate needs to be open otherwise the trade and delivery people will come and if they cannot get in they will leave. The excavator is booked to come on Monday and Tuesday. Catherine Azzopardi said OK." There was evidence from Ms Azzopardi that her house was under construction from approximately March 2002 to September 2002 though, having regard to the Jennings note, some work may have been done a little earlier; (c) Anthony Azzopardi said there were two locks on the gates, one the plaintiffs', the other belonged to Integral Energy. He had always had a key himself; (d) Mr Leibeck gave evidence there was only one lock on the gates. The gates were often not locked when he got to the property as his was not the first vehicle to arrive. He said he was told by the fourth defendant there was a further key under a rock near the gates. He had used that key to open the gates; (e) Mr McLaggan gave evidence that on most occasions when he visited property A the gates were open. He denied he had telephoned the plaintiff to arrange for the gates to be opened for him; (f) Mr Stone gave evidence that mostly the gates were open and generally there were workmen there working on Ms Azzopardi's house; (g) Ms Leo gave evidence that when she visited the site on 12 September 2002 the gates were unlocked and there was no-one on the site; (h) the first defendant said the gates were open when he attended to discuss removal of the pole and when he attended to do the work; (i) the fourth defendant said the gates were never closed when he attended. He denied any conversation with Mr Leibeck in which he said that a key was kept under a rock. Thirty percent of the time there was a chain on the gates to give the impression it was locked but it was not locked. The other 70 percent of the time the gates were open; (j) the third and/or fourth defendants' drivers Cummins, Zammit and Iraia gave evidence that when they attended the gates were not closed. 83The first defendant denied he notified the first plaintiff of the delivery of fill. This appears to be borne out by the telephone records between the first defendant and the first plaintiff. He also denied the fourth defendant informed him when a load was to be delivered, a matter which the fourth defendant did not recall although he accepted that for business efficiency it was necessary that the first defendant know when fill was to be delivered. 84The third and fourth defendants submitted that the first plaintiff's account of access to the property was entirely discredited as, in consequence, was his and Ms Azzopardi's evidence generally. 85I am unable to reconcile the first plaintiff's evidence on this issue with that of the other witnesses, particularly those witnesses who seemingly were independent. I accept that access to the property was often not secure and enabled entry to unauthorised vehicles. However, it does not necessarily follow that third parties were entering the property or that trucks of third parties were depositing asbestos contaminated fill on the land.

Was asbestos contamination present before any fill was deposited on property A? 86The first defendant submitted that the plaintiffs had not proved there was no fibro already on the site prior to the fill being deposited. He referred to the presence of a cottage on the site, the bathroom and kitchen of which were constructed of fibro cement and were to be removed prior to the commencement of the building of the Jennings home. However, the demolition had not occurred. No other basis was advanced. In my opinion, the submission was speculative and should be disregarded.

Did third parties deposit fill on property A? 87On the plaintiffs' evidence, delivery of fill commenced at the end of March and lasted 6-8 weeks, ie to approximately 31 May 2002 or the first week of June. This was consistent with the fourth defendant's evidence and the evidence of Catherine Azzopardi as well as the amended statement of claim. However, the third further amended statement of claim alleged that deliveries by the third defendant occurred between 20 March 2002 and 25 July 2002. 88There was evidence that: (a) on 5 June 2002 the first plaintiff told the fourth defendant not to deliver any more fill to property A; (b) Messrs McLaggan and Stone last saw trucks of the third and/or fourth defendant on property A on 1 June 2002; (c) the fourth defendant believed the third defendant did not take any fill to property A after the first week of June 2002. He went on an overseas holiday on 23 June 2002, leaving the business in the charge of Mr Attard. Mr Attard did not give evidence; (d) the plaintiffs did not cross examine the fourth defendant to the effect that the third defendant and/or fourth defendant had deposited any fill on property A after 1 June 2002. 89Evidence was adduced which, it was submitted, established that third parties had deposited fill on property A both before and after the first week of June 2002. This was against the background that in September 2002 a large investigation of alleged dumping of asbestos contaminated fill on private semi-rural land on the fringes of Sydney's west commenced and the suggestions that unauthorised trucks would deposit asbestos contaminated material on unsecured sites. 90The evidence in respect of the period prior to the first week of June was as follows: (a) Mr McLaggan gave evidence that on 30 April 2002 he observed four trucks depositing fill at property A. Two of the trucks were registered to the fourth defendant's wife. One of the others bore the registration plates of Honda Prelude WFS 960 owned by a Mr Tran and the other bore registration plates TZT 550 and was registered to a Ms Cremona. He observed that the trucks, after tipping their loads, proceeded into Greendale Road toward The Northern Road. The third and fourth defendant asserted the trucks bearing registration numbers WFS 960 and TZT 550 were not recorded as trucks owned by the third defendant or its contractors and were not known to them. Subsequently TZT 550 was recognised as a vehicle owned by a contractor to the third and/or fourth defendant. On 13 May 2002 Mr McLaggan observed three trucks, WYR 804, UIZ 796 and TZT 550, tipping at property A. WYR 304 was registered to the fourth defendant's wife, UIZ 796 to Mr Attard. On Saturday 1 June 2002 Mr McLaggan observed 12 trucks tipping on property A. All of those trucks were identified as owned or operated by the third and/or fourth defendant except for trucks XNV 439 and XYS 253. On one occasion that day Mr McLaggan followed several of the trucks to the fourth defendant's Londonderry site. The identity of the vehicles followed was not recorded or now recalled. The defendants contended that the three unidentified vehicles were being operated by third parties depositing asbestos contaminated fill on property A. In my opinion, it is equally likely that the vehicles were being operated by contractors for the third and fourth defendant and that their identity had, for some reason, not been recorded at the time and in respect of which the passage of time has dulled memory. It seems to me unlikely that the third and/or fourth defendant would have permitted third party vehicles to deposit fill on property A by joining part of the third and/or fourth defendant's convoy of trucks. However I acknowledge that, as the fourth defendant remarked, he lacked authority to give orders to third parties on property A and there were many occasions when other trucks deposited fill on private property which the third and/or fourth defendant was permitted to use by the owner; (b) the plaintiffs' neighbours complained of deliveries starting early in the morning and finishing late in the night on 27 and 28 April 2002. The third and fourth defendants acknowledged depositing a lot of fill on property A on 27 and 28 April 2002 but denied working there at night. The third and fourth defendants submitted the hours recorded on the third defendant's daily run sheets for 27 April 2002 show the earliest time a truck of the third and/or fourth defendant arrived at any tip site was 7.20 am and departure was no later than 6.30 pm. On Sunday the earliest deposit was 7.00 am and the latest 1.55 pm. Prima facie it would seem unlikely that third parties would be on hand to commence work directly after the third and/or fourth defendants completed work and then continue into the night unless arrangements had been made by the first plaintiff that this should occur. However, the authenticity of the third defendant's records was not challenged. There is no record of any employee or contractor of the third and/or fourth defendant working into the night. The possibility of work being continued into the night by employees and contractors for unrecorded cash payments is rebutted by the fourth defendant and his wife and was not supported by evidence other than that of Mr Leibeck. Mr Cummins, the third defendant's truck supervisor, gave evidence he was never on property A at night. He was not cross examined about the weekend of 27 and 28 April 2002; (c) the neighbours reported the depositing of fill on the weekend of 11 and 12 May 2002. However, the third and fourth defendant asserted that four of their five trucks were engaged from 10 May 2002 to 13 May 2002 in relation to an accidental spillage of a load of paper and the fifth truck was engaged elsewhere. This was confirmed by the third defendant's records for that period which were not challenged. There was no record of subcontractors being hired by the third defendant that weekend. If the neighbours' evidence is accepted, and there appears to be no reason to doubt it, it being admitted as evidence of the facts without a request for cross examination, then, prima facie deposits of fill were made on property A by third parties on that weekend. There is some confirmation in that on 13 May 2002 some fill was seen to have been deposited in the back paddocks of property A. The first plaintiff conceded he did not know who had made that deposit; (d) the first and second defendants asserted that third parties brought asbestos contaminated fill to property A pursuant to arrangements made by the plaintiffs with the third parties. Whilst Jennings cut and filled on site, there was no evidence that it brought any fill to property A. Third parties were identified as including Kari & Ghossayn, Steve Gregor Excavations and Hassarati Excavations. There was no direct evidence to prove the allegations. The allegations against Kari & Ghossayn seemed to be based in part upon alleged observations by the first defendant of tipper trucks of Kari & Ghossayn depositing crushed demolition material on property B in October 2001. The material involved was crushed sandstone. There was no evidence it was contaminated with asbestos. Steve Gregor Excavations owned a bobcat and truck and was employed from time to time by the plaintiffs. Hassarati Excavations was in the excavation business. The principals of Steve Gregor Excavations and Hassarati Excavations had been telephoned by or on behalf of the first plaintiff during the relevant period on occasions shortly before or after a telephone conversation by the first plaintiff with the first defendant. This evidence may raise an index of suspicion but, standing alone, it does not establish that the plaintiffs had made arrangements with the named entities to deposit fill on property A. 91The evidence in respect of the period after the first week of June is as follows: (a) the plaintiffs, by their pleading, accepted that any fill deposited after 25 July 2002 was not deposited by the third and/or fourth defendant. I find, more probably than not, that deposits of fill were made to property A after 25 July 2002 by unidentified third parties; (b) the first plaintiff gave evidence that on some occasions after the first defendant had agreed to stop, additional fill was deposited on property A. The first plaintiff had no idea, on the basis of any evidence, who deposited that fill; (c) two or three weeks after the first plaintiff had told the defendants to cease bringing fill to property A the first plaintiff observed two truck loads of fill had been deposited in the back cow paddock. The first plaintiff said he believed the third and/or fourth defendant delivered the fill but he did not see who did it. It occurred, he said, at night on an occasion when he had inadvertently left the gates open. He informed the defendants that thereafter the gates would be kept locked and not opened for anyone; (d) subsequent to this the first plaintiff called on Keith Farrugia, the first defendant's son, on five or six occasions over two to three months to level piles of fill on property A. The piles normally consisted of about 20 truck and dog loads. Keith Farrugia did not observe any truck depositing fill and had no idea as to the identity of any person who deposited the fill. This work was done after the third defendant, on the evidence, had ceased to deliver fill to property A; (e) on 1 July 2002 Messrs McLaggan and Stone observed the presence of more fill on property A. On 25 July 2002 Mr McLaggan observed more fill on the site. It was only at this time that he felt any concern that there may be asbestos contamination in the fill. On 7 August 2002 Mr Stone observed more fill on the site. Mr McLaggan gave evidence that he thought it was around September/October 2002 when the fill was at its maximum on the site. 92I accept the evidence of Messrs McLaggan and Stone on this issue. I also accept the evidence of Keith Farrugia, save that I consider his estimate of the increase in the size of the platform and his sketch in relation thereto was somewhat exaggerated, particularly when contrasted with the contour plan lodged with the development application. 93The tests for the presence of asbestos were not conclusive as to the initial position of the asbestos as the use of an excavator to level and compact the fill could have caused asbestos deposited by third parties to be intermingled with the asbestos free deposits by the third and/or fourth defendant. There was evidence, which I accept, that the effect of levelling and compacting the fill, the use of heavy machinery, the mixing of contaminated and non-contaminated material when digging at depth (through surface in-fill) and the cross contamination from tools all may give rise to the danger of cross contamination. The samples taken in September 2002 from property A were taken when the platform was being destroyed. 94In my opinion, the onus of proof rests with the plaintiffs to establish that third parties did not deposit asbestos contaminated fill on property A during the period 20 March 2002 to September 2002. This they have not done. Alternatively, I find it is more probable than not that asbestos contaminated fill was deposited on property A by third parties during that period.

Did the third and/or fourth defendant deposit asbestos contaminated fill on property A? 95Senior counsel for the plaintiffs opened a case that there was a substantial amount of asbestos being removed from a demolition site at Meadowbank, some of which ended up being deposited on property A by the third and/or fourth defendant. He also submitted that irrespective of the identification of the source of the fill there was direct evidence that asbestos contaminated fill had been deposited on property A by the third defendant. Proof of either matter would result in this issue being determined in favour of the plaintiffs. 96Cardinal Holdings Australia (Cardinal) was retained to demolish and remove buildings and structures at the Meadowbank site and to excavate part of the land. The demolition work was to be performed in three stages. A Statement of Environmental Effects provided that stages 1 and 2 were consented to by the local Council on 5 March 2002 and involved the removal of 10 and 40 tonnes of fibro/asbestos respectively. Stage 3 involved the removal of 250 tonnes of fibro/asbestos and was consented to by Council on 16 July 2002. In addition the contract provided for the removal of asbestos vinyl tiles and lagged steam pipes. 97Cardinal is expert in removal of asbestos and specified appropriate work methods to be employed in demolishing stages 1, 2 and 3 and for the transportation by Cardinal to Penrith Waste Service Pty Limited of contaminated material. The demolition work was separate from the excavation work and was at a different level. 98It was submitted by the plaintiffs that there was a significant shortfall between the total amount of asbestos referred to in the waste dockets issued to Cardinal by Penrith Waste Service Pty Limited which bore the reference "Project 366" and the estimate of asbestos made in the Statement of Environmental Effect. Why this is so is unclear. It may be explicable on the basis "Project 366" was inadvertently omitted from some documents, that other project numbers were also used or that there were a number of documents that were not obtained or for some other reason. It is noted that none of the documents refer to sheet asbestos and it may be they were separately recorded. The deficit is not apparent if all documents produced on the relevant subpoena are taken into account. Evidence was not led by any party to explain these matters. 99The plaintiffs suggested that the Court should, at least, conclude there was a significant quantity of asbestos unaccounted for and presumably infer it was disposed of inappropriately. I am not prepared to draw that inference from the documents or lack thereof. The evidence is insufficient to justify such a finding. 100No laboratory test was performed by the EPA or the relevant council to determine if asbestos was present in the excavated material being removed from the Meadowbank site. 101The plaintiffs' case relied heavily upon Mr Leibeck, a driver employed by the third defendant at the relevant time, to give evidence as to the source of asbestos contamination and its deposit on property A by him and other employees of the third defendant. Mr Leibeck provided the only direct evidence for the plaintiffs as to contamination at Meadowbank and the deposit of contaminated fill on property A by the third and/or fourth defendant. 102Mr Leibeck, in essence, gave the following evidence: (a) he was born in 1964, completed year 8 at school, had worked as a truck driver from age 18. He commenced employment as a truck driver on a trial basis with the third defendant on 19 April 2002. He was made a casual employee on 15 May 2002. His employment came to an end in September/October 2002. His initial employment to 15 May 2002 was "off the books", he was paid cash and no records were kept. From 15 May 2002 he was paid by direct debit into his bank account for his ordinary hours of work but was paid cash for any work out of his normal working hours. Generally, the ordinary working hours were 7.00 am to 6.00 pm; (b) he kept a personal work diary in addition to a diary kept at the request of the employer. The latter diary was not available. The former was tendered in evidence. It was entered weekly and contained brief particulars of work undertaken each day. The relevant entries commenced on 15 May 2002 under the heading "New job". There were no entries from 19 April 2002 to 14 May 2002 inclusive. There were no entries from 14 June 2002 to 10 July 2002, from 1 August 2002 to 2 October 2002 inclusive though he did work during these periods. The diary entries noted loads delivered from Meadowbank to "Greendale" on 15, 16, 17 May 2002, 23, 24 May 2002, 28 May 2002, 7 June 2002, 11 June 2002, 11, 12 July 2002, 15 July 2002 and 16 July 2002. There were loads delivered from Meadowbank to the yard on 17 May 2002, 13 June 2002, 11 July and 18 July 2002, loads delivered from Penrith to "Greendale" on 18 May 2002, 27 May 2002, 28 May 2002, 1 June 2002, 16 July 2002, and 25 July 2002 to 31 July 2002, loads delivered from Meadowbank to Bringelly on 5 June 2002, and Meadowbank to Londonderry on 6 June 2002; (c) each entry had the truck registration number JCR 600 noted. There were no entries for delivery to Greendale from any source other than Meadowbank or Penrith and no specific identification of the place or places at Greendale to which delivery was made, there being a number of different tipping sites in Greendale. The entry for Monday 27 May 2002 contains a note "Shit in loads"; (d) he first attended the Meadowbank site shortly after 16 April 2002. Because of Council's parking requirements neither he nor other drivers attended Meadowbank for approximately two weeks from late April or early May; (e) in the first or second week after 15 May 2002 he agreed to be paid cash to mix piles of excavated material at Cranebrook (and later at Penrith) at the end of the day's work. This work was "off the books". No record was kept. The majority of the fill for property A came from Penrith and Cranebrook. He delivered this after hours and was paid cash. On one occasion there were bits of asbestos and asbestos sheeting in the material deposited at property A. He remembered this "because it meant I didn't mix it properly"; (f) he had deposited fill at many sites in the western suburbs of Sydney. Some 40 sites were nominated. He provided a list of addresses as to where he took loads. That was written by him. The sites included "Greendale". In his first affidavit he said that although he was not certain he estimated he had deposited not less than six loads on property A. The loads were obtained from a number of sites. A number of the loads were obtained from Meadowbank, Penrith and Cranebrook. In his second affidavit he said that the first affidavit was in error. It should have read "no less than six separate days". In late June the fourth defendant or Mr Attard instructed him he was no longer to unload at property A; (g) he attended Meadowbank on 1 August 2002. In the preceding weeks he had observed persons there to throw from the roof of a building large sheets of what appeared to be corrugated fibro. This sheeting was thrown onto the ground adjacent to the building. He observed a large 80 tonne excavator travel across the sheets, crushing them. He then observed the sheets when broken into small pieces were mixed with the surrounding soil and pushed up to form a mound on site, from which fill was taken by the third defendant; (h) on 1 August 2002 he had become concerned regarding the fibro sheeting he had observed and thought it may contain asbestos. Prior to departing the site, he inspected his load and observed a significant number of what, he said, appeared to be small pieces of corrugated fibro; (i) he took the load to Cranebrook where he was directed by Mr Attard to take it back to Meadowbank. On his return to Meadowbank he told John Kinsella, a principal of Bilberger, the head contractor, that the material had asbestos in it. He was told to tip it on the stockpile from which it had been taken. This was confirmed by Mr Cummins who was driving a truck accompanying him. However Mr Cummins described the so-called asbestos as "white stones half an inch thick". It would not appear from that description to be asbestos material; (j) on 13 August 2002 he was directed by Mr Attard to take a load to Garfield Road, Marsden Park from Penrith. On arrival at Garfield Road the tipper jammed. Officers of Blacktown City Council arrived and issued Mr Leibeck with an infringement notice for transporting contaminated fill, the alleged contaminant being asbestos. The fourth defendant said he would pay the infringement notice. He did not do so. The infringement notice was for $1500. Mr Leibeck observed that had the fourth defendant paid the infringement notice they would not be here now; (k) he generally attended property A between 7.00 am and 6.00 pm but also attended it on a number of nights, including a Saturday evening. He recalled that on the Saturday evening he delivered loads of fill to property A until 3.00 am. 103Mr Leibeck gave further evidence which, in short, was as follows: (a) he obtained employment with the third defendant by answering an advertisement. In fact, he was introduced by a friend, as he later conceded. No job had been advertised; (b) he was a licensed asbestos remover and had received training in asbestos removal. No confirmation of this was proffered. He did not make such a claim when previously interviewed by an EPA officer as to his knowledge and experience of asbestos; (c) the white copy of the truck docket contained information which was for the benefit for the third and fourth defendants only and which was not duplicated on the coloured sheets. He had been asked on occasions by the fourth defendant to falsify information on the dockets. He said the white copy was kept by the third or fourth defendant. Mrs Cauchi said that the white copy was sent to the customer along with the invoice, there was no request to falsify information; (d) he had difficulty reading and writing. He said even some of the writing in his personal diary was made by others. His writing could be distinguished from the writing of others by reason of its slope. However, in a number of cases the slope differed in the one word, with the result that some part of the writing of a word was attributed to Mr Leibeck and other parts not. He asserted the words "New job" in the diary were not his writing. He said he could not read a list of delivery points which had been written by another for him. This conflicted with the evidence of Mr Riding, the Council officer who obtained the document. His evidence was the document had been wholly written by Mr Leibeck in the presence of Mr Riding; (e) he had observed the first defendant recording on a pad or daily run sheet each truck which deposited fill on property A. He later withdrew this assertion; (f) he observed the first defendant operating an excavator at the Penrith site and at the Meadowbank site. Under cross examination he recanted; (g) he agreed in cross examination that he ordinarily drove truck registration XIG-789. He agreed he had identified the truck he drove in the diary as JCR-600 on all occasions but said that this was because it was the only number he could remember; (h) he was instructed by the fourth defendant to make sure no-one else dumped on the sites at Greendale Road. This was denied by the fourth defendant; (i) the third and/or fourth defendant employed contractors of Asian or Indian appearance. This was denied by the fourth defendant and his wife; (j) there was a practice whereby the registration plates were taken off one vehicle and placed on another to enable defective vehicles to continue to operate. He recalled that the registration number of a Honda sedan was substituted on a truck by Mr Iraia. The alleged practice and the actions alleged against Mr Iraia were denied. 104The fourth defendant and Mrs Cauchi asserted that Mr Leibeck was employed from 15 May 2002 and not before. He had not been employed off the books and was not paid cash. He was not paid cash for after hours work. No employees were paid cash. The Court was not taken to any material, other than Mr Leibeck's evidence, to substantiate his claims in this regard. A number of the truck drivers employed by the third defendant gave evidence. None of them confirmed Mr Leibeck's evidence in this regard. Indeed, it was not put to them. 105The fourth defendant and Mrs Cauchi denied that asbestos was mixed with clean fill by the third and/or fourth defendant. No employee of the third defendant gave evidence which confirmed this practice. None gave evidence of delivering fill containing asbestos to property A. 106The personal diary gave the appearance of being compiled well after the event and not on a regular weekly basis. The use of the same registration number for the truck seems to confirm this. The contents of the diary conflicted almost completely with the matters recorded in the third defendant's records. It was not contended those records had been falsified by the third and/or fourth defendant. 107There is a seeming inconsistency between Mr Leibeck's asserted concern in respect of asbestos on 1 August 2002 and his evidence that he had willingly mixed asbestos and clean fill since shortly after commencing employment by the third defendant in May. 108The matters referred to create a serious doubt as to the reliability of Mr Leibeck's oral evidence and the documents created by him. 109That doubt is compounded by his demeanour in the witness box. That was recorded in the following terms by senior counsel. 110Senior counsel for the plaintiffs, whose witness he was, described Mr Leibeck's presentation in the witness box as "less than amicable". He continued: "[Mr Leibeck's] presentation must be viewed from the perspective that Mr Leibeck is uneducated, illiterate, ill-tempered and labours under a suspicion and fear of authority. It was also plain from his time in the witness box that Mr Leibeck was suffering significant chronic pain from a work-related injury to his back. Whilst these factors affected Mr Leibeck's demeanour, it is submitted that they do not detract from the fact that he is a witness of truth and should be believed." 111Senior counsel for the third and fourth defendants described Mr Leibeck as: "an entirely unsatisfactory witness. Substantial parts of his evidence were fabricated. Mr Leibeck appears to have a significantly damaged personality which appears to have led him to instigate an unwarranted investigation by the EPA into the affairs of Billberger at Meadowbank and the trucking business of the Cauchis. Mr Leibeck was not candid in cross examination and his truculent approach to the questions he was asked thwarted the proper testing of his evidence. Much of what he said was literally fantastic. The evidence which Mr Leibeck gave was thoroughly inconsistent with the objective evidence and that given by other witnesses. Nothing he said should be accepted as inherently credible. Mr Leibeck's evidence should simply not be believed unless it is supported by independent evidence or testimony...the fate of [the plaintiffs] claims is bound to the credibility of Mr Leibeck's evidence. As Mr Leibeck's credit is in tatters, the plaintiffs' case has correspondingly collapsed." 112However, the events of 1 August 2002 recounted by Mr Leibeck are, in part confirmed by the accompanying truck driver Mr Cummins. Mr Attard has not been called to give evidence to the contrary. The events of 13 August 2002 have the objective underpinning of the infringement notice though it does not establish that there was in fact asbestos in the truck. Accordingly, it cannot be said all of Mr Leibeck's evidence was false. However, the effect of much of his evidence and his demeanour causes me to conclude that his evidence, both oral and documentary, cannot be accepted unless satisfactorily corroborated. 113The plaintiffs initially submitted, based on the evidence of Mr Leibeck, that since approximately the end of May 2002 until at least 1 August 2002 Mr Leibeck, at the request of the third or fourth defendant, was deliberately mixing asbestos and clean fill and causing it to be transported to tip sites in the western suburbs. I do not accept that the evidence of Mr Leibeck is sufficiently reliable to enable me to reach that conclusion. There is no acceptable evidence to support the mixing of clean fill and asbestos at this site. The reaction of Mr Attard to the suggestion of asbestos in the load on 1 August 2002 was to send it back immediately. This provides some confirmation that Mr Leibeck's evidence was unreliable. 114In these circumstances, the source of the contaminant which the plaintiffs fell back upon was the alleged throwing of materials and crushing by excavator at Meadowbank. 115The thrust of Mr Leibeck's evidence was that the throwing down and crushing was a deliberate practice. The evidence does not establish that the material being thrown down was asbestos. The dangers of such a practice would be obvious if it was. Mr Cummins said he did not see anyone throwing sheets of fibro off the roof. He said he took only dirt from the site. Mr Kinsella did not observe asbestos like material being thrown from the roof of buildings on the site and denies that material was crushed by the tracks of an excavator whilst lying on the ground or that crushed asbestos material was then blended with virgin excavated material on the Meadowbank site before being loaded into trucks of the third and/or fourth defendant. Mr Kinsella was on site early and for the most of any day. I do not accept Mr Leibeck's evidence on this aspect. 116I accept that the event on 13 August 2002 occurred, so far as apprehension by Council officers, generally as alleged by Mr Leibeck. However, his evidence as to the source of the contaminant was confused. He gave different answers on different occasions as to the source and ultimately said he did not know. The sites he suggested are not relevant to property A so far as the evidence extends. The date of the occurrence is well after 1 June 2002. 117It is highly improbable any fill was taken from Meadowbank to property A in the period up to 1 June 2002 as during that period the third and fourth defendant transported only 20 loads from Meadowbank over two days. There was no direct evidence apart from Mr Leibeck that excavated material was delivered to property A. Indeed, so far as there are records of the destination to which fill from that site was delivered, it was to sites much closer than property A to the Meadowbank site. 118The principal source of fill for property A was Penrith, which was considerably closer to property A than the Meadowbank site. The third defendant had a validation certificate for excavated materials from that site. There is no acceptable evidence the material for excavation at that site was contaminated with asbestos. 119I do not accept the evidence of the mixing of fill at Cranebrook and Penrith given by Mr Leibeck. I do not accept the evidence of fibro poking out of a load due to inept mixing by Mr Leibeck. I do not consider the entry in Mr Leibeck's diary of "Shit in load" is a reliable, near contemporaneous note. 120There was reference to evidence pursuant to ss 97 and 98 of the Evidence Act 1995 in respect of the properties at Garfield Road, Marsden Park and Belmore Road, Bringelly. The evidence established that there was asbestos found in samples taken from each property and that the third and/or fourth defendant had delivered fill free of charge to each site. In my opinion, this evidence is admissible without resort to ss 97 or 98. The circumstances of the arrangements for the payment for compacting differ between the two properties. Each site was unsecured and there was evidence one had contained a large heap of building material and the other had been a building site. There were allegations of third parties delivering fill to these sites and an alleged admission in this regard by one of the owners, which was denied. 121The fourth defendant and Mrs Cauchi gave evidence that no fill was moved from Cranebrook or Londonderry to any private tip. 122The events on 1 August 2002 and 13 August 2002 each occurred outside the period claimed by the plaintiffs, arose from delivery to sites other than property A, and probably had a different source. They provide no direct evidence to support the plaintiffs' claim. 123The onus lies upon the plaintiffs to prove that the third and/or fourth defendant deposited asbestos contaminated fill on property A. In my opinion, the plaintiffs have not proved asbestos contaminated fill was deposited by the third and/or fourth defendant on property A.

Conclusion 124For these reasons I find that the plaintiffs have not established that the defendants deposited fill contaminated by asbestos on property A. As proof of this matter was fundamental to the plaintiffs' case, the result of that finding is that there will be judgment for the defendants against the plaintiffs. 125The defendants had also submitted that the plaintiffs' claim must fail by reason of a failure to prove any loss. This failure, it is submitted, arises in two ways. They are discussed hereunder.

Payment by Lepipi 126Lepipi is a family company controlled by the plaintiffs and/or their children. The accounts of Lepipi Pty Limited included a loan account for the plaintiffs. Catherine and Paul Galea Jnr deposited $1million from the sale of the Bernera Road premises into the account of Lepipi for the benefit of the first plaintiff. 127A quotation from Recyclers for the removal of the fill was received. The quotation was dated 21 February 2003 and was from Recyclers addressed to Paul Galea. It quoted $99 per tonne to remove and dispose of the fill. A written "contractual agreement between [Recyclers] and Mr Paul Galea" was signed by the first plaintiff and Recyclers. It is undated. It provided for the removal of the contaminated soil from property A. Subsequently tax invoices were received. These stated "Bill to: Lepipi Pty Limited". 128The cheques for payment of Recyclers' invoices were drawn on Lepipi's bank account, signed by the first plaintiff and paid by Lepipi to Recyclers for the cost of removing the fill from property A. The defendants submitted that as the expense had been borne by Lepipi, not by the plaintiffs, the plaintiffs' claim must fail. 129The first and second defendants submitted that as the cost of removing the fill was borne by Lepipi the plaintiffs themselves were not worse off economically and therefore suffered no economic loss. Lepipi never made a claim upon the plaintiffs at any time within six years of incurring the liability and the plaintiffs therefore have no legal obligation to pay any amount back to that company. The adjustment of the accounts was a purely voluntary act on behalf of the plaintiffs. It was not economic loss. 130Ms Azzopardi gave unchallenged evidence Lepipi did not operate an "egg business". Property B was leased to Pace Farms. Lepipi did not operate a poultry farm at property B. There was, by this time, no intention of doing so on property A. 131The accountant for Lepipi gave evidence that in his opinion the payment had been incorrectly treated as an expense of Lepipi's when the payment should have been made on behalf of the plaintiffs. He gave evidence he would not have treated this payment other than as a charge against the plaintiffs' loan account if he had been provided with the quotation relating to this payment which was addressed to the plaintiff. The error had since been corrected in the company's books and taxation records. 132The plaintiffs are and were the owners of property A. The obligation to remove the fill was upon the plaintiffs as the owners of property A. The contract for the removal of the fill was between the plaintiffs and Recyclers. The cost of removing the contaminated fill was not an expense of a business conducted by Lepipi. In my opinion, the action is properly brought by the plaintiffs who are entitled to make a claim in respect of the alleged losses.

Development application 133It was common ground the plaintiffs required the Council's consent to deposit fill upon property A. Consent had not been sought or obtained, as a result of which the Council required the fill be removed. 134The proceedings instituted by the Council against the plaintiffs in 2003 were under the Environmental Planning and Assessment Act for depositing land fill without development consent. The reason why the plaintiffs had to remove the fill from property A was that they caused fill to be deposited unlawfully in the absence of development consent not because of asbestos contamination. 135The defendants submitted that if the plaintiffs had complied within a reasonable time with the Council's order for removal the removal would have taken place before the presence of contamination had been recognised and the higher tipping fees for contaminated fill incurred. Accordingly, the plaintiff's loss was wholly due to the actions of the plaintiff and any claim against the defendants must fail. 136The plaintiffs' subsequent application for development consent was rejected. The plaintiffs submitted the development application more probably than not would have been approved had it not been for the asbestos contamination. 137In my opinion, the deposit of asbestos contaminated fill by the third defendant, if such occurred, caused damage to the plaintiffs in that it impacted upon the prospect of obtaining a consent to the development application without removing the whole of the fill. The plaintiffs would be entitled to maintain their claim.

The third defendant's cross claim against the first plaintiff and Lepipi Pty Limited (First cross claim) 138The third defendant in its cross claim sought to recover $66,105 plus interest from the first plaintiff, alternatively Lepipi, for fuel and fees incurred in removing and disposing of part of the fill on property A pursuant to an arrangement made on about 19 September 2002 or, alternatively, on the basis of a quantum meruit, unjust enrichment or restitution. 139The first plaintiff and Lepipi denied the agreement alleged or that they were otherwise liable to the third defendant. They submitted the defendants agreed to remove the whole of the fill without charge. 140The background to the alleged agreement appears from a record of interview dated 19 September 2000 between Messrs McLaggan and Stone, the first plaintiff and the first and fourth defendants as follows: "I said 'Joe brought the material onto the premises and he levelled it out and basically built this platform.' David said 'Yeah'. I said 'Is that right Joe?' Joe said 'Yeah'. I said, 'So David and yourself Joe organised to bring the material onto the site.' Joe said 'Yeah, I own the trucks'... I said 'And Joe you brought all the demolition and excavated material here?' Joe said 'No, not the demo just the dirt.' I said 'Joe, where did all the bricks, concrete, building rubble and other demo waste in the stock pile come from? You don't normally find concrete slabs this size at house sites. You said before you brought all the material onto the premises.' Joe said 'I didn't bring it all on. There were Chinese blokes dumping too.' I said 'And these Chinese, did they work for you?' Joe said 'No fucken way...' I said 'There is asbestos in this material.' Joe said 'I don't know about that.' I said 'This may be acceptable for the material waste that is not contaminated with asbestos.'...Joe said 'We could screen it with the bucket and separate it into stockpiles. When the Council approves his shed, we use it for that. That way we wouldn't have to take it off site'...I said 'This may be acceptable for the material waste that is not contaminated with asbestos. The asbestos material has to be taken off the site and taken to an approved waste facility licensed by the EPA. That must occur. There are public health and safety issues that need to be resolved. All the asbestos contaminated material and waste cannot be dumped or left on the premises.'...I said 'Is there anything else Paul, Joe or you, David, want to ask me or Robert?' Paul said 'No, it will be all done like you want.' Joe said 'Not really.'" 141The first plaintiff gave evidence that after the interview the fourth defendant said "If we have to take it away, we'll just have to take it." The first plaintiff denied he or Lepipi had agreed to pay tipping fees and the cost of drivers' wages and fuel. He said it was the fourth defendant's problem since he had brought the fill to property A. 142The fourth defendant gave evidence he did not recall how much fill he was going to take away. He said he agreed to take it away to help the first plaintiff and would take away what the first plaintiff wanted him to take. 143In my opinion, it is more probable than not that there was no agreement by the first plaintiff to pay the third defendant in respect of the removal of the fill. The agreement to remove the fill came at a time when notices under the Protection of the Environment Act had issued to the plaintiffs and to the first, second and third defendants. That the third defendant agreed to remove the fill was consistent with it seeking to avoid proceedings against it by the authorities and consistent with the comment attributed to the fourth defendant following the interview. It is also consistent with the desire to avoid litigation with the plaintiffs. I am not satisfied that any agreement has been established for the payment by the first plaintiff or Lepipi to the third defendant for the removal of fill or that it is otherwise entitled to payment. 144The fourth defendant gave evidence he ceased to remove the fill because the first plaintiff "did not show his face" on site. The fourth defendant thought there was "something fishy" going on. He could not afford to keep paying the tipping fees. 145The first plaintiff in his affidavit gave a different version of the matter. He said the conversation was as follows: "FOURTH DEFENDANT: I didn't bring all of this. A Chinese man did and an Indian man did. I'm not going to do any more. FIRST PLAINTIFF: Joe, you brought all of this stuff here. David levelled it off and nobody else came here and dropped any fill here except you. FOURTH DEFENDANT: Well, if you are going to take that attitude, I will see you in court." 146The plaintiffs submitted the third defendant had not removed the amount of fill alleged as: (i) the removal of 1450 tonnes from a platform of about 7250 tonnes would have left a very large and noticeable hole and on the evidence of the first plaintiff and Mr McLaggan it had not; (ii) Mr Stone considered that the fill had been removed but had merely been removed from the platform to another part of the property where it was to be used to cover a septic tank. Mr Stone observed that in fact no fill had been taken from the property; (iii) the material delivered to Bransdown tip did not come from property A as it was categorised as "mixed industrial" not contaminated fill. 147I am not satisfied the third defendant has discharged the onus of establishing it removed fill as alleged. 148I do not find that there was an admission of liability by conduct by reason of the third defendant agreeing to remove the fill as: (a) the fourth defendant indicated at the time he did not accept liability and that third parties had deposited fill on property A and that he had not deposited other than soil; (b) it was likely the fourth defendant agreed on behalf of the third defendant in order to avoid litigation with public authorities and/or the third defendant; (c) the agreement was limited to the amount of fill brought by the third defendant. 149There will be judgment for the first plaintiff and Lepipi on the third defendant's cross claim.

The first and second defendants' cross claim against the third and fourth defendants (Second cross claim) 150This was a claim for indemnity in the event the plaintiffs received a verdict against the first and second defendants. 151The first and second defendants have been held not liable to the plaintiffs. Accordingly, there will be judgment for the third and fourth defendants upon the first cross claim.

Lepipi's cross claim against the defendants (Third cross claim) - property B 152The first plaintiff raised with the first defendant delivery of fill to property B on or around mid to late April 2002. The first defendant and his son did levelling work at property B though no invoice was raised in respect of that work. 153No development application was lodged in respect of depositing fill on property B. Any proceedings in relation to development are now apparently statute barred. 154The fourth defendant conceded he delivered fill to property B. The first plaintiff observed this and employees and contractors were also observed to be delivering fill. 155On 11 September 2002 ten samples were taken from fill on that site. Laboratory testing detected asbestos in six of those samples. 156The plaintiffs alleged 2400 tonnes of fill was delivered to property B. The fourth defendant has denied that that amount was delivered. The first plaintiff's evidence is based on a quotation of City Bins (NSW) Pty Limited (Mr Kotistatis). The amount alleged in that quotation is the amount claimed by Lepipi. 157Little attention was paid to this claim during the hearing, it being, it seems, tacitly assumed the result in respect of property A would be determinative of the result in respect of property B. 158Lepipi's farm manager who was present on property B at all relevant times was not called to give evidence. The defendants submit that the Jones v Dunkel principle has application. 159The claim fails on the basis that the plaintiffs have not established the defendants deposited contaminated fill on property B. 160The defendants also submitted that Lepipi had suffered no loss and the claim by it should also fail on that basis. 161On 6 October 2004 the first plaintiff obtained the quotation from City Bins for the removal of contaminated fill from property B. The fill has been on the land since that time and no steps have been taken to remove it. Lepipi has not been required to remove it. It has become overgrown with vegetation. There is no evidence from Lepipi that it does not have the wherewithal to do so had it wished to remove the fill from the land. It has chosen not to. There is no acceptable evidence it has any intention to remove the fill. 162There is no evidence that any work was done following on from the quotation or any expenses incurred by Lepipi or otherwise to effect such works. The area of fill is insignificant having regard to the size of the property (250 acres). There is no evidence a purchaser would pay any less for the property or that the present or future user would be affected. There is no evidence its present condition creates any risk. Lepipi has not proved it has suffered, or will suffer, any loss or damage in respect to property B.

Miscellaneous 163In his final submissions, senior counsel for the plaintiffs disavowed any reliance upon a conspiracy or deliberately releasing asbestos material. 164Issues of credit were raised. Apart from Mr Leibeck, I was not assisted in determining the issues by the demeanour of the witnesses. 165The various possible factual conclusions should the matter go further make it inappropriate to consider the residual issues at this time.

Orders 166I make the following orders:

1. Judgment for the defendants against the plaintiffs in the principal action.
2. The plaintiffs to pay the defendants' costs of the principal action.
3. Judgment for the first plaintiff and Lepipi Pty Limited against the third defendant on the first cross claim.
4. The third defendant to pay the first plaintiff's and Lepipi's costs of the first cross claim.
5. Judgment for the third and fourth defendants against the first and second defendants in respect of the second cross claim.
6. The first and second defendants to pay the third and fourth defendants' costs of the second cross claim.
7. Judgment for the defendants against Lepipi Pty Limited on the third cross claim.
8. Lepipi to pay the defendants' costs of the third cross claim.

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: 22 February 2012