Australia, Feb. 26 -- New South Wales Land and Environment Court issued text of the following judgement on Jan. 29:

1. The Plaintiffs move on a Notice of Motion seeking leave to file an amended Statement of Claim. The application is made pursuant to s 64 of the Civil Procedure Act 2005 (NSW) ("CPA") and r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").

2. The matter is a negligence and private nuisance case involving alleged water ingress from the Defendant's property onto the Plaintiffs' property. The water ingress is alleged to have been caused by certain construction works performed for the Defendant, at the Defendant's property, Manly Vale Public School, by Lahey Constructions Pty Ltd ("Lahey Constructions").

3. The proposed amendments to the Statement of Claim seek to join Lahey Constructions as the second defendant, refine the existing negligence and nuisance pleadings and include a claim under s 177 of the Conveyancing Act 1919 (NSW).

4. The Defendant neither consents to nor opposes the application.

5. This application has been placed before me in my capacity as the Duty Judge. A brief outline of submissions filed on behalf of the Plaintiffs sets out the requirements for urgency and an overview of the relevant considerations. I am grateful for that assistance.

Requirement for Urgency

6. The Plaintiffs submit that the Statement of Claim alleges that the Plaintiffs experienced water ingress during 2019, at a time proximate to the refurbishment of the "Administration Block" on the Defendant's land. The Administration Block is adjacent to the back of the Plaintiffs' property.

7. In the Defendant's defence, filed on 25 October 2024, the Defendant pleads that Lahey Constructions is a concurrent wrongdoer under the proportionate liability provisions of the Civil Liability Act 2002 (NSW) ("CLA"). The Plaintiffs contend that the first discovery of damage that they allege was caused by the water ingress the subject of these proceedings was in February 2019.

8. Pursuant to r 19.2 of the UCPR, where an amendment adds a party to proceedings, the date of commencement of the proceedings in relation to that person or entity, is taken to be the date on which the amended document is filed.

9. The limitation period for negligence is six years from the date on which the cause of action first accrues to the Plaintiffs (s 14 of the Limitation Act 1969 (NSW)). A cause of action accrues to a Plaintiff when the elements of the action are complete.

10. It is submitted on behalf of the Plaintiffs that given the first damage to their property occurred in February 2019, they are at risk of being out of time as against Lahey Constructions unless an amended pleading joining them is filed by 31 January 2025.

Consideration

11. Section 64(2) of the CPA provides:

64 Amendment of documents generally ... (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

12) Section 58(1) of the CPA provides that in deciding whether to make any order or direction for the management of proceedings, including any order for the amendment of a document, the court is to have regard to the dictates of justice. For the purpose of determining what are the dictates of justice in a particular case, s 58(2) provides a non-exhaustive list of considerations including (at vi), the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.

13) The case is at an early stage of preparation. Evidence has not yet been served and a hearing date has not been fixed. I am of the view that the proposed amendment to join the second defendant to the proceedings is necessary to avoid a multiplicity of proceedings. The amendment would permit the whole of the real issues in dispute to be resolved in the one set of proceedings which is both appropriate and efficient.

14) I have also had regard to the fact that orders will be made that the Plaintiffs pay the Defendant's costs thrown away by virtue of the amendment. In all of the circumstances I am not of the view that the amendment causes any material prejudice to the Defendant.

15.Accordingly, I make the following orders:

1) Leave to file an amended Statement of Claim is granted pursuant to s 64 of the Civil Procedure Act 2005 (NSW) and r 19.1 of the Uniform Civil Procedure Rules 2005 (NSW).

2) The Plaintiffs pay the Defendant's costs thrown away by virtue of the amendment.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/194ddea0ec5cab34cfb43aaa)

Disclaimer: Curated by HT Syndication.