Proprietors of SP 20297 v G & S Developments Pty Limited

PARTIES : Proprietors Strata Plan 20297 (Plaintiff) G & S Developments (Defendant)

COUNSEL : Mr B Debuse (Plaintiff) Mr P Dodson (Defendant)

SOLICITORS : Moloney Lawyers (Plaintiff) Curwoods Lawyers (Defendant)

• 7 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2642/03 THE PROPRIETORS OF STRATA PLAN 20297 V G & S DEVELOPMENTS PTY LIMITED JUDGMENT 1 The Proprietors of Strata Plan 20297, the plaintiff in this action, is the registered proprietor of the common property of the land in Strata Plan 20297 upon which is erected the building known as 19-21 Surfside Avenue Clovelly. The strata development consists of five residential home units. 2 The defendant, G & S Developments Pty Limited, was at the relevant time, the registered proprietor of the next door land being that in Folio Identifier 61/705547 known as 17 Surfside Avenue, Clovelly. The properties have a common boundary. 3 In about July 2002 the defendant company commenced construction of an apartment building at 17 Surfside Avenue, Clovelly. At the time of purchase by the defendant there was a development consent for the erection of a building with four residential units upon the land at number 17. 4 For the purpose of the construction, a number of rock anchors were inserted and drilled from the defendant's land into the land of the plaintiff. As a result of the insertion of those anchors considerable damage was occasioned to the building at 19-21 Surfside Avenue. This is admitted. The plaintiff claims in trespass, in nuisance and in negligence. This judgment relates solely to the question of liability which I ordered be tried separately from the question of damages. 5 Paragraph 7 of the statement of claim alleged: 7. A number of holes were drilled and excavation undertaken on the Plaintiff's land by the Defendant, its servants or agents without the permission or consent of the Plaintiff.

The defendant admitted this paragraph apart from the words "without the permission or consent of the plaintiff". There was in the defence a non-admission of that allegation. There was no denial of it. At the commencement of the hearing when some attention was being given to the pleadings which had existed in an unamended form since 2003, it was accepted that in light of the plaintiff's pleading the defence could stand with the question of the onus of establishing consent or lack of consent being left for subsequent argument. The matter proceeded on that basis. 6 It is desirable to deal with this matter now. Consent or licence is a defence to a claim in trespass because one cannot complain about the conduct undertaken as a result of consent or a licence. So far as trespass to land is concerned there are authoritative statements in Dillon v Plenty (1991) 171 CLR 635 at 647 and Secretary Department of Health and Community Services v JWB & SMB (Marion's case) (1992) 175 CLR 218 at 310-311 that the burden of establishing consent lies with the defendant. I proceed on the basis that this is correct. 7 In this case it is perfectly clear that there is a trespass unless there was consent. Thus I turn to the question of consent. One of the conditions of the development approval required written consent of adjoining owners to the installation of rock anchors underneath the adjoining property. While some attention was paid to that it does not seem to me that it is a relevant consideration other than in helping to determine whether any form of consent was given. It seems to me to be clear that as between the parties consent could be given orally or it could be given in writing. In either case, consent would have to be consent of the Proprietors of Strata Plan 20297 being the Body Corporate and not just the consent of one of the proprietors of a lot in that strata plan. 8 The case of the defendant as to consent is that in evidence given by Mr Brad Stevens. He said that there was some urgency with the matter; that he had heavy machinery about to arrive on site for drilling and excavation; that it was expensive to have that machinery lying idle as it came from a separate contractor; that he had realized that he had omitted to obtain written consent seven days before the activity took place, as he thought was required by a combination of conditions 19 and 29 of the development consent; that he had spoken to Mr O'Neill, the proprietor of unit 3 and had a conversation with him as set out in paragraph 14 of his affidavit of 14 March 2008 which is as follows: 14. When I realised that consent for the installation of the rock anchors had not yet been obtained from the neighbours I spoke to Mr O'Neill. This conversation occurred a day or so before the installation of the rock anchors was due to start so it would have been about 13 November 2002. I remember I saw Mr O'Neill and called out to him and we had a conversation to the following effect: I said: "We have to drill and insert some rock anchors under your property to retain the pilings that will support your building. We've got to get written permission from you to go under the property to do it but I've just realised I haven't sent you the notice. I've already organised the machinery to start. Would there be any chance that we could go ahead with the work and we can sort out the documentation later?" He said:

There should be no problem with that, Brad. Get it going and we'll sort it all out later." To the best of my recollection we had this conversation at the laneway at the southern boundaries of the properties during the morning. 9 Mr Stevens said that prior to this in a conversation he and his father had with Mr O'Neill, Mr O'Neill said that he was the person to talk to on behalf of the residents. Mr O'Neill in an affidavit sworn 17 March 2008, denies the conversation set out in paragraph 9. He said that in about September 2002, Mr Brad Stevens had told him that he needed to get the consent of the building owner before the ground anchors were installed and that he had told him that he would have to make a written request to the body corporate, saying "I don't mind if you put in my letterbox, but it must go to the secretary of the body corporate", to which Mr Stevens said he would get on to that soon. He then said that one or two weeks prior to the 14 November 2002, which was the date the drilling actually occurred, Mr Stevens had approached him again and stated that he needed to get the consent for the ground anchors and that he had said that he could not give the consent, and that a request would have to be made to the body corporate so that it could consider it. Mr Stevens denied this version of events. 10 On 12 July 2002, Mr O'Neill had sent a facsimile transmission to Mr Gary Stevens, the father of Mr Brad Stevens, in the following terms: Hi Gary, You will remember we met outside #7 about 6 weeks ago or so and you gave me your business card. I have since spoken to everyone in our building (#19-21) and they have asked me to manage all correspondence between you and us. I will make sure that I keep them informed about what is going on. To this end, I would be grateful if you could provide me with any planning detail or schedule that would help us to understand what you will be doing especially in relation to 1. Any temporary or permanent changes to the fencing between your property and ours.

2. Any shoring or drilling work especially if it encroaches on our [sic] under our property.

3. Any other work that could affect the condition or use of our property. I look forward to hearing from you. You can contact me anytime on my mobile, XXXX XXX XXX or at the address on the top right corner of this fax. Regards Gary O'Neill 11 It is that letter and the verbal consent which Mr Stevens said that Mr O'Neill gave to the commencement of the work which the defendant relies upon as constituting consent. 12 While most of the hearing time was spent in cross-examination of the witnesses and submissions as to which witness should be believed, I think the case can be decided without detailed findings as to credit and reliability and by accepting for present purposes the version of Mr Stevens. 13 An agent cannot give himself authority to act for persons or a person or corporate body as principal. Authority must come from the principal. In the circumstances which exist here, as a matter of law, consent was required from the plaintiff body corporate. Unless Mr O'Neill was the agent of that body corporate, no such consent was given. There is no evidence that he was the agent. Even if the facsimile transmission had appointed Mr O'Neill as agent of the body corporate, which it did not, the letter, on any proper reading of it, would not have authorized him to consent to any entry upon the property of the plaintiff body corporate. In any event Mr Brad Stevens was not aware of the contents of the facsimile transmission which was sent to his father and not to him. He could rely on nothing else other than the conversation which he said that he had with Mr O'Neill. He knew that he had not otherwise obtained the consent required. 14 It seems to me to follow from this that there was no consent to the entry, that it was therefore unauthorized, and that it amounted to a trespass. It is equally clear, although it is not necessary to establish damage, that substantial damage was caused to the building of the body corporate as a result of the trespass. The experts in a joint report accept that. What happened was that the defendant company, and particularly Mr Brad Stevens, took the risk of obtaining consent after the event, and no consent was obtained before or after the event which caused the damage. 15 It follows from this that there should be judgment for the plaintiff for damages to be assessed and that there should be a reference out to determine the damages. 16 It was accepted that the claim in nuisance would fail if the claim in trespass failed and that there was no need to consider it if the claim in trespass succeeded. So far as the claim in negligence is concerned, for the same reason, it is not necessary to consider it. It was based on allegations that the defendant knew or ought to have known that the work envisaged could cause damage to the plaintiffs and that there was accordingly a duty of care to the plaintiff. There is no doubt about the duty of care. However, it was not established that the defendant knew or ought to have known that insertion of the rock anchors could cause damage to the plaintiff's property; nor is it established there was unreasonable conduct which caused the damage or any departure from reasonable care. This negligence claim fails. The other pleaded claim in negligence was not pursued as the particulars were not made out. Course of the proceedings 17 The action commenced in May 2003. After a few preliminary skirmishes some injunctive orders were made ultimately by consent by me on 28 July 2003. Since then the action has been before the Registrar or Deputy Registrar on 37 occasions. On many of these occasions all that was done was to extend the existing timetable. Vast expense must have been incurred as a result of this which is really a scandal, although no doubt each party will blame the other. The real dispute is whether the plaintiff's building, to be properly repaired and made safe as a result of damage caused by the defendant, requires some demolition and underpinning or whether all that is required is filling and repairing of cracks in a far more simple procedure. That is the real dispute. The questions of consent were raised for the first time in affidavits sworn a few days before the hearing. The difference between the parties is $700,000 or less. Rather than spend days on a reference the parties should consider mediation. 18 I will consider the draft orders the parties are to bring in.

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