Mir Bros Trading Co Pty Ltd v Cavasinni Constructions Pty Ltd

1. [1]

   HER HONOUR: By notice of motion filed 28 November 2014, the plaintiff seeks an order that it be granted leave to file and serve a further amended statement of claim pursuant to ss 64(1) and 65(2) of the Civil Procedure Act 2005 (NSW).

2. [2]

   The plaintiff is Mir Bros Trading Co Pty Ltd (“Mir Bros”). The current defendant is Cavasinni Constructions Pty Ltd (“Cavasinni Constructions”).

3. [3]

   Mir Bros seeks to amend its claim against Cavasinni Constructions and add two defendants, namely, the owner of adjoining land, Cavasinni Developments Pty Ltd (“Cavasinni Developments”) and the managing director of both Cavasinni Constructions and Cavasinni Developments, Mr Vittorio Cavasinni (“Mr Cavasinni”). For convenience, I shall refer to Cavasinni Constructions, Cavasinni Developments and Mr Cavasinni as “the Cavasinni Interests” except where the identity of the separate entities is required. The same counsel appeared on behalf of Cavasinni Constructions, Cavasinni Developments and Mr Cavasinni. As there have been a number of draft proposed further amended statements of claim, for ease of identification I have marked the latest version of the PFASC as MFI - 1.

4. [4]

   Mir Bros relied on the affidavit of Sam Mir dated 28 November 2013 and that of its solicitor, Marcus Graham dated 28 November 2014. The Cavasinni Interests relied on the affidavit of their solicitor Brett Wilson dated 30 January 2015.

Factual background

1. [5]

   The general manager of Mir Bros is Mr Sam Mir (“Sam Mir”). Sam Mir’s father, Mr John Mir (“John Mir”) is the director of the Mir Bros Group of companies. Mir Bros is the owner of a parcel of land at Wetherill Park (“the Mir Land”). Cavasinni Constructions was the owner of the adjoining land (“the Cavasinni Land”). Cavasinni Developments undertook a development of industrial units on its land, which included significant civil engineering works on the Mir Land and the construction of a retaining wall along the common boundary of the two properties. The Cavasinni Land has since been sold.

2. [6]

   I shall briefly outline Sam Mir’s version of events. For the purposes of this application only, I have accepted his version of events. I acknowledge that at trial, his version would be the subject of cross examination.

3. [7]

   It is common ground that in 2000, the parties entered into an oral agreement that formed the contract between them. Sam Mir says that in 2000 Mr Cavasinni, as managing director of Cavasinni Constructions, approached Mir Bros and said that, “he wanted to develop the Cavasinni Land by constructing factory units on it.” Sam Mir deposes that Mr Cavasinni also said “that due to the topography of the Mir Land and the Cavasinni Land, he would be required to cut and fill the Mir Land to achieve the desired floor level.” From this conversation it is unclear how Sam Mir knew that Mr Cavasinni was acting as managing director of Cavasinni Constructions.

4. [8]

   Sam Mir says that initially, he and John Mir said to Mr Cavasinni that Mir Bros would allow Cavasinni Constructions access to the Mir Land to construct walls along the boundary line, provided that the boundary walls were strong enough to withstand backfill to their full height and lateral load if Mir Bros was to construct a building on the Mir Land; and that the Mir Land was reinstated and compacted pursuant to a geotechnical engineer’s certificate following construction. This conversation, as deposed in Sam Mir’s affidavit of 28 November 2013, is not in the form required at trial. It is important as it forms the basis of the contract between them.

5. [9]

   By about 15 September 2000, Cavasinni Constructions commenced earthworks. Sam Mir says that at that time, Cavasinni Constructions did not have the permission of Mir Bros to do so. Nor had there been any agreement between them as to the terms of any permission.

6. [10]

   On 15 September 2000, John Mir wrote to the manager at “Cavasinni Constructions”, marked for the attention of “Mr Vic Cavasinni”. John Mir stated:

7. [11]

   On 1 October 2000, Mr Cavasinni, on a Cavasinni Construction letterhead, replied:

8. [12]

   Between 2001 and March 2007, the construction of factory walls by Cavasinni Constructions along the eastern boundary of the Mir Land and the Cavasinni Land took place.

9. [13]

   On 26 January 2007, Mr Cavasinni, on a Cavasinni Constructions letterhead, wrote to Mir Bros’ solicitor stating:

10. [14]

    On 30 January 2007, Mir Bros’ solicitor responded:

11. [15]

    As at 9 March 2007, the outstanding works still were not completed. On that day Mr Cavasinni, on a Cavasinni Constructions letterhead, wrote:

12. [16]

    It is important to appreciate that the terms of the contract and the identity of the parties to that contract were not identified when the contract was made. This is because the discussions in relation to the agreement that took place were oral ones. As at 9 March 2007, the work on the Cavasinni Land had not been completed. Hence, Cavasinni Constructions advised that it was not in a position to carry out the remedial works on the Mir Land. It is not clear the date by which the remedial work should have been completed, nor what was a reasonable time for that work to be finalised. The date of the breach of contract is one that can only be ascertained at trial after evidence has been given and factual findings made. It is from that date that damages can be calculated. However, it is also argued that there are latent defects in the works carried out on the Cavasinni Land (that have affected the Mir Land) that have only recently become apparent.

Procedural history

1. [17]

   On 12 February 2013, Mir Bros filed a statement of claim. On 11 April 2014, Mir Bros filed an amended statement of claim (“ASC”). Cavasinni Constructions consented to the amendments to the ASC on the basis that such consent was without prejudice and to its right to rely upon any limitation defences available to it.

2. [18]

   The pleadings in the ASC allege that:

3. [19]

   The following separate causes of action were alleged from [10]-[15] of the ASC:

4. [20]

   On 30 April 2014, Cavasinni Constructions filed its defence to the ASC. Cavasinni Constructions denies the terms of the oral contract as alleged by Mir Bros. It also denies that Mir Bros is entitled to orders in the nature of specific performance. It alleges that the proceedings are commenced out of time by reason of s 14 of the Limitation Act 1969 (NSW); and that Mir Bros is estopped, by its silence and inaction, from now bringing these proceedings 13 years after the alleged agreement.

5. [21]

   Since Mir Bros commenced proceedings, the preparation of its case for trial has been less than ideal. So much so that on 8 November 2013, while Registrar Kenna extended time for Mir Bros to file its evidence in chief to 29 November 2013, she ordered that it was not permitted to serve further evidence after that date except with leave of the Court.

6. [22]

   On 3 October 2014, Gadens filed a notice of change of solicitor on behalf of Mir Bros. The explanation for the delay in seeking leave to file a further amended statement of claim is provided by Mr Graham, Mir Bros’ current solicitor. Mr Graham deposed that at the time of Gadens’ initial instructions, there was an extant order of this Court that Mir Bros file the FASC by 3 October 2014. That order has not been complied with. The solicitor then outlined the steps he has taken to finalise a FASC. They include a number of meetings with representatives of Mir Bros, requesting and obtaining a copy of the file from the former solicitors, requesting and obtaining documentation from Mir Bros including Fairfield Council records and finally, he has considered the affidavit of Sam Mir dated 28 November 2013.

The proposed amendments in the PFASC

1. [23]

   The proposed further amended statement of claim (“PFASC”) is attached the motion filed by Mir Bros on 28 November 2014. The proposed amendments contained in the PFASC fall into three categories:

2. [24]

   Specifically, those amendments are as follows:

3. [25]

   The Cavasinni Interests oppose the amendments set out in the PFASC subject to a few exceptions. They are the [6A] trespass, subject to limiting the period to between 12 February 2007 and 31 March 2007; the first nuisance claim at [11] (but subject to limiting the period to between 12 February 2007 and 31 March 2007); the common law duty claim and statutory claim at [12] and [13]; and the claim for indemnity at [15] and [16].

Leave to amend - general principles

1. [26]

   Mir Bros seeks leave pursuant to ss 64 and 65 of the Civil Procedure Act. Rule 19.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) applies to amendments to add parties.

2. [27]

   Sections 64 and 65 of the Civil Procedure Act read:

3. [28]

   UCPR 19.2(1) and (4) read:

4. [29]

   The specific provisions of s 65 do not limit the general power conferred by s 64. Under s 64 an amendment may be allowed even if its effect is to add a statute barred cause of action.

5. [30]

   The general principles that apply to an application for leave to amend are well known. Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 makes clear that the paramount consideration is one of the dictates of justice as between the parties: see also Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423 at [7]-[10] and [50].

6. [31]

   Mir Bros’ preferred position is to be granted leave to amend under s 65, as this allows the amendments to take effect from the date on which the proceedings were commenced, namely, 12 February 2013. Mir Bros’ fall back position is to rely upon s 64, where the amendments date from the date upon which the PFASC is filed. I shall firstly deal with the applications under s 65, then with the Court’s discretion to grant leave under s 64; and finally, with whether it would be futile to amend based on the strength of the Cavasinni Interests’ limitation defence and/or a want of evidence for the new claims.

Application of s 65(2)(b) - has there been a mistake?

1. [32]

   Mir Bros submitted that it is clear that it intended to claim against “the party who sought access and agreed to the conditions, the party who undertook the works and the party responsible for the works”. Mir Bros argued that Cavasinni Constructions, Cavasinni Developments and Mr Cavasinni all fall within, or are likely to fall in, one or more of the categories of that description, since:

2. [33]

   Mir Bros submitted that since Cavasinni Constructions, Cavasinni Developments and Mr Cavasinni were all intended to be parties, there has been a mistake made in limiting the claim to Cavasinni Constructions, and that the amendments are consequently necessary to identify the actual intended parties to the agreement.

3. [34]

   Section 65(2)(b) allows a party to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the Court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party.

4. [35]

   Counsel for Mir Bros submitted that these amendments fall within s 65(2)(b) since the mistake lies only in the name, not in the description of the parties, and so consequently the mistake is neither misleading nor as such to cause reasonable doubt as to their identity.

5. [36]

   Counsel for Mir Bros referred to the well known passage in Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 where McHugh J (at 259-260) explained:

6. [37]

   “Sub-r (4)” is r 36.01(4) of the Supreme Court (General Civil Procedure) Rules (1996) (repealed) (Vic) which has textual similarity with s 65(2)(b) of the Civil Procedure Act. In Greenwood v Papademetri [2007] NSWCA 221 at [58] Campbell JA commented on the application of Bridge Shipping to s 65(2)(b):

7. [38]

   I respectfully agree with those comments of Campbell JA.

8. [39]

   Mir Bros submitted that its broad proposition is that there was an agreement between two men, both of whom knew there were companies standing behind each other and that there could be no doubt that Mr Cavasinni was part of the agreement, acting for himself as the “directing mind”, and also on behalf of Cavasinni Developments, as the owner, and for Cavasinni Constructions, who undertook the work. Counsel for Mir Bros also submitted that after the interaction between John Mir and Mr Cavasinni, the correspondence concerning the agreement was from Cavasinni Constructions which may have led to Mir Bros, as counsel put it, “closing our eyes as to whether other parties were involved” and commencing proceedings against only Cavasinni Constructions. I accept that the correspondence from Mr Cavasinni was unusually on Cavasinni Construction’s letterhead. It was never on Cavasinni Development’s letterhead.

9. [40]

   Mir Bros again referred to Greenwood at [61] and [62], where Campbell JA considered whether s 65(2)(b) applied to multiple parties. His Honour referred to passages from Greentree v G D Searle & Co (Supreme Court of NSW, 31 July 1992, unreported) at [14] and [15] that he found to be instructive:

10. [41]

    In these current proceedings, Mir Bros intends to leave the original defendant as a party in the action.

11. [42]

    Counsel for Mir Bros also referred to Greenwood at [34] and [35] where Campbell JA explained:

12. [43]

    In response, the Cavasinni Interests submitted that the assertion that there has been a mistake should be rejected as no direct evidence of any mistake has been given by Mir Bros. It was submitted that Mir Bros contention that the mistake can be inferred from the pleadings fails, since the original version of the pleadings expressly identified both Mr Cavasinni, as the person engaged in the alleged discussions in 2000, and Cavasinni Developments, as a related entity to Cavasinni Constructions and as the owner and occupier of the Cavasinni Land prior to its subdivision and sale in 2007 or 2008, indicating that Mir Bros always knew of the identities of Mr Cavasinni and Cavasinni Developments and of their respective roles in the factual matrix.

13. [44]

    Consequently, the Cavasinni Interests submitted that Mir Bros knew of Cavasinni Constructions identity as a builder and did not erroneously think that it was the owner and developer of the land. Nor did Mir Bros erroneously conflate Cavasinni Constructions and Mr Cavasinni. Rather, Mir Bros knew that Mr Cavasinni was the managing director of Cavasinni Constructions and the person who, on a practical level, Mir Bros’ representatives had dealt with. The crux of those submissions was that Mir Bros made a forensic decision not to make a claim against Mr Cavasinni and Cavasinni Developments, not a mistake, and that s 65(2)(b) does not apply to permit a plaintiff to reverse informed strategic decisions from which it later wishes to resile.

14. [45]

    The issue for this Court is who Mir Bros intended to sue. In ascertaining those intentions it is necessary to again briefly refer to the comments of Campbell JA in Greenwood at [56]-[57] and [59]-[60]:

15. [46]

    It is possible that Mir Bros, in naming the entities who answer a particular description, may have made a mistake in the sense explained in Bridge Shipping. Mir Bros may have intended to claim against “the party who sought access and agreed to the conditions, the party who undertook the works and the party responsible for the works” and has made a mistake in naming that party as only Cavasinni Constructions.

16. [47]

    However, there is no evidence from Mir Bros to establish that it had intended to sue all the entities involved in the works undertaken on the Mir Land. Although statements were made by counsel in submissions about the possibility that “confusion” arose from the way in which the correspondence between the parties was conducted, no direct evidence of this “confusion” on Mir Bros part was proffered, other than the correspondence itself. Without such critical evidence, this Court cannot be satisfied that there has been a mistake in the name of a party.

17. [48]

    The application of Mir Bros to add Mr Cavasinni and Cavasinni Developments as defendants under s 65(2)(b) fails. However, for reasons set out below, I would grant leave for the proposed defendants to be added under s 64. The consequence of that, however is that the amendment will only take effect from the date upon which the PFASC is filed: UCPR 6.28 and 19.2(4); Street v Luna Park Sydney Pty Ltd [2006] NSWSC 230 per Brereton J at [47], leaving for determination the issue of limitation periods, that, for reasons articulated below, should be determined at a final hearing.

Application of s 65(2)(c) - do the causes of action arise from substantially the same facts?

1. [49]

   Mir Bros also seeks leave to add several new causes of action against Cavasinni Constructions. Section 65(2)(c) allows a party to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

2. [50]

   Mir Bros submitted that the facts central to the claims made in the ASC are those relevant to the agreement made between John Mir and Mr Cavasinni, and what was done or not done pursuant to that agreement. Counsel for Mir Bros argued that it was clear that the claims made in the PFASC rely on the same or substantially the same facts that are central to the claims made in the ASC. Mir Bros further submitted that s 65(2)(c) does not require the facts to be the same, just substantially the same, and that whether that test is met is a question of “degree and impression”: Dymocks Book Arcade at [7].

3. [51]

   Mir Bros referred to Becket v Le [2012] NSWSC 1193, where Garling J at [17] set out the approach this Court should take in determining whether there are the same or substantially the same facts. His Honour lists several features to be considered in making such a determination, including where the parties to the cause of action for relief claimed are identical and where the relief claimed is identical. His Honour stated:

4. [52]

   Counsel for Mir Bros submitted that as in Becket, the parties are common members of a group, and the causes of action arise from a single interaction (between Mr Cavasinni and John Mir).

5. [53]

   In Becket, Garling J also stated at [18]:

6. [54]

   Mir Bros submitted that as in Becket, Cavasinni Constructions have not advanced any evidence of, nor have they raised any suggestion that they might suffer, any prejudice from the proposed amendments.

7. [55]

   In response, Cavasinni Constructions submitted that the new claims are based upon causes of action which do not arise from the same (or substantially the same) facts. Counsel for the Cavasinni Interests argued that the trespass and nuisance claims involving the stockpiles of excess material and the drainage are entirely new claims independent of the facts already pleaded. In relation to the Trade Practices Act claim, counsel for the Cavasinni Interests submitted that since there is no previously pleaded fact going to the question of reliance or misleading or deceptive conduct, this action also does not arise from substantially the same facts.

8. [56]

   It is my view that the new causes of action against Cavasinni Constructions arise out of substantially the same facts. I respectfully adopt the reasoning of Garling J in Becket, all of the claims essentially result from a single interaction (the meeting between Mr Cavasinni and Mr Mir). While the actual relief claimed may differ, the relief arises from the same or substantially the same set of facts set out in the original pleading. Importantly, there is no evidence of any prejudice suffered by the defendants in allowing the new claims to be made. In these circumstances, the new causes of action against Cavasinni Constructions should be allowed pursuant to s 65(2)(c).

9. [57]

   For reasons I will briefly set out below, even if I was not satisfied that the statutory criteria for s 65(2)(c) were met, I would allow Mir Bros to add the new causes of action pursuant to s 64. Again, that would leave for determination the issue of limitation periods, which for reasons given below, should be left until final hearing.

Does the justice of the case require leave to amend under s 64?

1. [58]

   Leaving issues of limitation periods aside, Mir Bros submitted that the Court should grant leave to amend pursuant to s 64, because the justice of the case requires it: Greater Lithgow City Council v Wolfenden [2007] NSWCA 180. Counsel for Mir Bros referred to Dymocks Book Arcade, where Ward J stated at [7]-[8]:

2. [59]

   Mir Bros also referred to Dymocks Book Arcade at [9] and [10] where Ward J discussed Aon Risk Services:

3. [60]

   I have taken into account that Mir Bros’ explanation for delay is essentially that it occurred when its former solicitors were acting for it. The proceedings were commenced on 12 February 2013, and while affidavits have been filed, no hearing date has been allocated as yet. These amendments will allow for the ventilation of the true issues relevant to the roles that the Cavasinni Interests played in relation to the works carried out on the Mir Land.

4. [61]

   While I accept that there may be presumptive prejudice arising from the passing of approximately 13-14 years, it should be borne in mind that Mr Cavasinni is the controlling mind of both Cavasinni Constructions and Cavasinni Developments. He is the one who possesses the actual knowledge as to which entity was involved in the work carried out on the Mir Land and involved in the land’s remediation. Mr Cavasinni was in a position to outline any material prejudice that would be caused by the amendments, but neglected to do so.

5. [62]

   In the exercise of my discretion and taking these above factors into account as well as ss 56, 57 and 58 of the Civil Procedure Act, the dictates of justice are to allow the amendments set out in the PFASC.

Are the amendments futile?

1. [63]

   The last topic to be addressed is whether the amendments are futile. Overall, the Cavasinni Interests submitted that they are futile for two reasons. They are firstly, that since the actions claimed were already known in March 2007, they are all now time barred by virtue of s 14 of the Limitation Act; and secondly, that there is no evidence to support the viability of the new causes of action as Mir Bros can only file further evidence by leave of the Court. Mir Bros responded to this argument by saying that the limitation issues are not in the “clearest of cases” and should be determined at trial, that the relief sought is equitable in nature and that they should be given an opportunity to put on further evidence.

Clearest of cases?

1. [64]

   Recently, in Issa v Issa & Anor [2015] NSWSC 112, White J (at [2]) referred to the well known passage in Wardley Australia Limited v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, where the High Court stated at 533 that:

2. [65]

   The Cavasinni Interests accepted that, except in the clearest of cases, a question relating to a limitation period should not be decided at an interlocutory stage in advance of the hearing of the action. (my emphasis). However, they submitted that these circumstances are “clear” and it would be futile to allow the amendments. In support of this proposition they referred to Owners - Strata Plan 68372 v Allianz Australia Insurance Ltd [2012] NSWSC 691 where McDougall J at [5]-[6] and [32] stated:

3. [66]

   The Cavasinni Interests submitted that the limitation question in these circumstances falls within the clearest of cases, and that accordingly, it would be pointless for it to exercise its discretion to allow the amendments.

4. [67]

   Mir Bros submitted that the Cavasinni Interests have not advanced any evidence to show that the present facts fall within the clearest of cases, nor should the Court should finally determine questions of the limitation periods against it; since those issues depend on factual findings and it should be left to a final hearing.

5. [68]

   The above principles apply to all of the proposed amendments (with the exception to those referred to in the judgment at [25]) including the amendment to add Cavasinni Developments and Mr Cavasinni to the breach of contract claim, and the claim of estoppel.

6. [69]

   As previously stated, Mir Bros’ claim arises from an oral agreement which took place in 2000. The terms of that agreement can only be ascertained at trial, as can the date of the breach of the agreement (if any) and the date liability (if any) crystallises. While the proposed amendments may raise limitation issues, they do not fall within the “clearest of cases”. Hence, it is arguable that the amendments are not futile and they should be allowed. It is necessary for me to briefly examine firstly, the breach of contract claim and the estoppel claim and secondly, the new claims, in order to ascertain whether the limitation points are arguable.

The breach of contract and estoppel claim

1. [70]

   In regards to the breach of contract and the estoppel claim, Mir Bros submitted that both arguably relate to matters within the relevant limitation periods and consequently are not futile amendments. In regards to the proposed amendment to add Cavasinni Constructions and Mr Cavasinni to the breach of contract claim, Mir Bros argued that the structural deficiencies in the compacted fill on the Mir Land and in the wall included latent defects which were not discovered, or discoverable, until recently, and that accordingly, the limitation periods in relation to those defects commence to run from that time: Owners of Strata Plan 50946 v Multiplex Constructions (NSW) Pty Ltd & 4 Ors [2006] NSWSC 377 at [20]. As for the claim of estoppel, Mir Bros submitted that it is, in effect, a response to the failure by Cavasinni Constructions to admit the Agreement as alleged. Mir Bros argued that it does not raise a new cause of action since it is a matter that they could properly have raised in a reply to the defence: HP Mercantile Pty Ltd v Dierickx [2012] NSWSC 1005 at [253].

2. [71]

   In line with the reasoning above, these amendments are not futile as it is arguable that the Limitation Act does not apply.

New causes of action

1. [72]

   The Cavasinni Interests made specific performance in relation to the three new causes of action pleaded in the PFASC. They are trespass, nuisance and false or misleading conduct.

(i) Trespass

1. [73]

   Mir Bros submitted that the new trespass claims are continuing trespasses insofar as they include work which the Cavasinni Interests undertook, and so far as they arise from construction works at the foundation of the wall. Counsel for Mir Bros argued that the limitation period has no present operation to these continuing trespasses, and so accordingly, any limitation defence would fail. Mir Bros further submitted that to determine the issue at this stage, on an interlocutory application, would be inappropriate since such a decision would involve factual findings. He said that the Cavasinni Interests’ submissions are focussed on the time of the agreement and the time when the works were completed but lack any focus on, or evidence regarding, the process which should have taken place under the agreement as envisaged.

2. [74]

   Mir Bros submitted that since the trespass is continuing, the relief claimed is equitable in nature, and falls within s 23 of the Limitation Act. I shall refer to the s 23 argument later in this judgment as it applies to the other new causes of action and the relief sought in relation to all the claims.

3. [75]

   The Cavasinni Interests disputed the contention that the trespass was continuing, and rather, characterised the conduct as three separate trespasses: (1) the works on the land, (2) the stockpiles and (3) the drainage. It conceded that that the latter two may be continuing based on a failure to remove such material. However, so far as the works on the Mir Land is concerned, Cavasinni Interests submitted that the trespass was now time barred since there was trespass after the end of March 2007.

4. [76]

   An action of trespass to a plaintiff’s land will lie against a defendant, who, without the plaintiff’s permission or licence, enters the plaintiff’s land, unless the defendant’s entry is justified in some way: Halsbury’s Laws of Australia, Vol 26 at 787,123 [415-325]. Every unjustified entry directly by a person on land in possession of another, which is carried out either intentionally or negligently, is an actionable trespass, even though no damage is done thereby: Halsbury’s Laws of Australia, Vol 26 at 787,144 [415-480]. There must be physical intrusion onto the plaintiff’s land: Bathurst City Council v Saban (1985) 55 LGRA 165; (1985) 2 NSWLR 704 at 706, and the intrusion must be direct: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at 39.

5. [77]

   If chattel is placed on land with a possessor’s consent, the withdrawal of that consent creates a duty to remove that chattel, and a continuing trespass is committed by failure to do so within a reasonable time: Konskier v B Goodman Ltd [1928] 1 KB 421.

6. [78]

   In my view, it is at least arguable that there one, single, and continuing trespass that therefore is not time barred. It is arguable that the Cavasinni Interests continued to trespass on the Mir Land by leaving stockpiles there and that this is connected to the works done on the land, which conflicts with the Cavasinni Interests characterisation of its conduct as a series of separate trespasses. Even if that is not the case, in my view it cannot be said that Mir Bros “first trespass claim” faces a limitation defence that is so clear that it is appropriate for the matter to be decided before a final hearing.

7. [79]

   If the trespass is continuing, s 14 arguably does not bar the trespass claim by operation of s 23, since “a trespass which continues for a longer period of time may, of itself, be such that damages are not an adequate remedy and equity would grant relief: Blacktown City Council v Sharp (2000) 10 BPR 18,107; [2000] NSWSC 339 per Young J at [17].

(ii) Nuisance claim

1. [80]

   Mir Bros submitted that similarly to the claim in trespass, the claim in nuisance is a continuing tort to which the limitation period has no present operation, due to the continuing presence of stockpiles and drainage on its land.

2. [81]

   Counsel for the Cavasinni Interests argued that there is no continuing nuisance, and that damage accrued at the time the stockpiles/drainage came onto the Mir Land and that it is now too late to make a claim based on that damage.

3. [82]

   The tort of nuisance has been defined as condition or activity which unduly interferes with the use or enjoyment of land (Clark & Lindsell on Torts, 19th ed at 1162). Damages are recoverable in nuisance for the annoyance, inconvenience and discomfort caused by an interference with the use and enjoyment of land which does not cause material physical damage: see Commonwealth v Murray (1988) ATR 80-207. A plaintiff is not, however, entitled to recover damages for a mere inconvenience until actual damage is caused: Young v Wheeler (1987) ATR 80-126 at 68, 971-2 per Wood JA.

4. [83]

   An occupier of land “continues” a nuisance if, with actual or constructive knowledge of its existence, he or she fails, within a reasonable period of time, to take reasonable measures to bring it to an end: Robson v Leischke.

5. [84]

   The situation here is similar to trespass. The submissions of the parties again “raise questions of fact” about the terms of the oral agreement “which are not suitable for determination before a final hearing”: Owners of Strata Plan 50946 v Multiplex Constructions (NSW) Pty Ltd and 4 Ors [2006] NSWSC 377 White J at [20]. It is arguable that a continuing nuisance exists which is not affected by s 14, so it cannot be said that the limitation defence is, as put by McDougall J in Owners - Strata Plan 68372 v Allianz Australia Insurance Ltd at [5], “unarguably sound”. Further, on the basis that the nuisance is also continuing, it is arguable that the relief claimed is equitable and that s 23 applies. It is my view that the claim for nuisance is not futile.

6. [85]

   It is also inappropriate for this Court to determine this issue because a factual finding as to when was reasonable time was for the Cavasinni Interests to comply with the agreement has not occurred. Hence, it is my opinion that this is not a “clearest case”.

(iii) Misleading or deceptive conduct

1. [86]

   Mir Bros need to establish firstly, conduct on the part of Cavasinni Interests; secondly, conduct that is misleading or deceptive; thirdly that there was reliance on the conduct; and fourthly, loss or damage caused by the conduct - see Gould v Vaggelas (1984) 157 CLR 215; [1985] HCA 85 and Jebeli v Modir [2005] NSWCA 184.

2. [87]

   Mir Bros submitted that the claim for misleading or deceptive conduct under s 82 of the Trade Practices Act did not arise until there was any contravention of that Act, namely, until the Cavasinni Interests resiled from its obligation to be bound by its agreement. Counsel submitted that only then was a loss suffered by reason of the contravention, and that that event did not occur until about the time of the commencement of these proceedings - there was an agreement between the parties, the plaintiff was entitled to rely upon the fact or proceed upon the assumption that the agreement would be complied with and it wasn’t until the contingency that the agreement would not be complied with or disavowed arose that the damage was sustained.

3. [88]

   In support of this proposition, Mir Bros referred to the judgment of the Victorian Court of Appeal in Environmental Systems Pty Ltd v Peerless Holdings (2008) 19 VR 358; [2008] VSCA 26, where Nettle J at [105] discussed the different points at which limitation periods can begin to run in misleading or deceptive conduct cases, depending on the circumstances of the case:

4. [89]

   Mir Bros submitted that the circumstances here can be categorised as being in the second class of case, and that accordingly, time does not begin to run until the Cavasinni Interests failed to comply with and to adopt the agreement. The Cavasinni Interests say that the circumstances here do not fall into the second class of case as discussed in Environmental Systems. The Cavasinni Interests submitted that the loss started when the work was demanded, which was no later than January 2007, and that consequently the claim is out of time. For reasons given earlier it is not clear when time starts to run, so it is not clear that the cause of action of misleading or deceptive conduct is futile.

Equitable relief

1. [90]

   There is a further reason why Mir Bros says that the limitation periods do not apply to the proposed amendments. That is, because the main relief sought in the PFASC is equitable, the claims are not time barred due to the application of s 23 of the Limitation Act. The relief sought in the PFASC is as follows:

2. [91]

   While Mir Bros conceded that s 23 has not been the subject of uniform views it submitted that this Court should adopt the reasoning of Ball J in Alec Finlayson Pty Ltd v Royal Freemason Benevolent Institution of New South Wales Nominees Ltd [2013] NSWSC 1168 at [31]-[47] where it was held that a claim for specific performance of a contract was not subject to s 14. At [48] Ball J concluded

3. [92]

   Whether or not the false or misleading claim is statute barred depends on facts and circumstances that will be established at trial. Hence, it is not appropriate to determine whether this claim is statute barred.

4. [93]

   The relief sought is specific performance of a contract and for mandatory injunctive and other equitable relief. Section 23 reads:

5. [94]

   It is my view that as the relief sought is firstly, equitable in nature, and secondly, for specific performance, it is arguable that s 23 applies in relation to the amendments in the PFASC. This is another reason why the amendments are not futile and should be permitted.

Lack of evidence?

1. [95]

   Recently in Octaviar Administration Pty Ltd (in liquidation) v Craig [2013] NSWSC 1116, Adamson J at [17] commented:

2. [96]

   The Cavasinni Interests submitted, in a somewhat circular argument, that the amendments are futile on the basis that they cannot be proved on the available evidence, because Mir Bros has served its evidence and is not permitted to serve any further evidence without the leave of the Court and should not be permitted to rely upon supplementary evidence. The Cavasinni Interests submitted that this Court should proceed to assess the strength of the claim on what is currently before it in evidence, as leave to file a FASC should not serve as itself a “springboard” to come back and skirt around the earlier orders as to evidence. I disagree.

3. [97]

   While I accept that Mir Bros, to date, has been tardy in prosecuting its case, it has largely explained the cause of its delay. Registrar Kenna’s sanction on the service of further evidence based upon the past delay is appropriate. However, I do not think that Mir Bros should be denied the opportunity to have its case tried on its merits. For it to do so Mir Bros should to be given an opportunity to put on further evidence in relation to the amendments, provided that Mir Bros adheres to a strict timetable with the current sanctions.

Conclusion

1. [98]

   Mir Bros is granted leave to file a further amended statement of claim against Cavasinni Constructions pursuant to s 65(2)(c) of the Civil Procedure Act. Mir Bros is also granted to leave to join two additional defendants, Cavasinni Developments and Mr Vittorio Cavasinni, pursuant to s 64 of the Civil Procedure Act.

2. [99]

   Costs are reserved.