Southern Region SLSA Helicopter Rescue Service Pty Ltd v New South Wales Golf Club Co Ltd t/as New South Wales Golf Club

1. [1]

   On 11 November 2021, I heard argument in relation to the defendant’s Notice of Motion filed 22 October 2021 in which it seeks leave to file and serve:

2. [2]

   During the course of argument, I indicated the orders I proposed to make and said that I would publish my reasons later.

3. [3]

   These are those reasons.

4. [4]

   The plaintiff, Southern Region SLSA Helicopter Rescue Service Pty Ltd owns land in La Perouse from which it operates a helicopter rescue service.

5. [5]

   The defendant, New South Wales Golf Club Co Ltd (the “Club”) owns the adjoining land on which a golf course is located.

6. [6]

   In 2006, a helicopter hanger and crew accommodation building was constructed on the plaintiff’s land, together with a retaining wall designed to retain some 5.5 m of earth lying between the wall and the Club’s golf course.

7. [7]

   On 14 June 2012, the wall failed causing damage to the plaintiff’s building.

8. [8]

   The plaintiff contends that the wall failed by reason of “landscaping work” that the Club effected in late 2007 or early 2008 designed to shield the plaintiff’s premises from the view of Club patrons.

9. [9]

   The plaintiff brings its case in trespass and negligence, including alleged breach of the statutory duty referred to in s 37 of the Design and Building Practitioners Act 2020 (NSW), and in nuisance.

10. [10]

    The proceedings have been on foot since the middle of 2017. Very shortly after the proceedings were commenced, an order was made referring the whole of the proceedings out for expert determination. The current referee is Mr George Inatey QC. The reference has not yet taken place.

Proposed amendment to the List Response

1. [11]

   Currently, cl C9(b) of the Club’s List Response provides:

2. [12]

   The Club seeks to amend sub-cl C9(b)(ii) so that it reads:

3. [13]

   The basis on which the Club wishes to make this allegation is an invoice sent by the Club to “Prince Henry Project Office/Landcom” on 30 September 2008.

4. [14]

   That invoice is in the form attached. Tax Invoice dated 30 September 2008 (30049, pdf)

5. [15]

   Mr Le Plastrier, who appeared for the Club, accepted that the only basis on which the Club would contend, as is proposed by the amendment, that the plaintiff “offered to and did pay for the full cost” of the planting of the native plants on the mounds was the submission by the Club of the invoice to Landcom, and the payment of that invoice by Landcom. Landcom was engaged on behalf of the New South Wales Government to effect the works on the plaintiff’s land.

6. [16]

   On that basis I propose to grant leave to the Club to amend sub-cl C9(b)(ii) as proposed.

7. [17]

   Clause C9(c) of the List Response is currently in this form:

8. [18]

   The Club seeks to amend this paragraph so that it reads:

9. [19]

   The basis on which the Club wishes to make the further allegation concerning the role of the National Trust is the reference to the National Trust in the invoice to which I have referred.

10. [20]

    No explanation was offered by the Club as to why this amendment has not been sought earlier.

11. [21]

    In relation to that proposed amendment, the plaintiff’s solicitor, Mr Maurice Lynch has deposed:

12. [22]

    That evidence persuaded me that I should not permit the Club to make this amendment.

13. [23]

    At the hearing before the referee, it will be open to the Club to tender the invoice and to submit, by reference to the current form of cl C9(c), that there was some involvement by the National Trust.

14. [24]

    That will be a matter for the referee. It is not a sufficient reason to allow the amendment proposed.

15. [25]

    Clause C24 in the current List Response in the following terms:

16. [26]

    That paragraph refers to cl C23 of the List Response which contends that:

17. [27]

    The Club proposes to amend cl C24 so that it reads:

18. [28]

    That unparticularised and very general allegation widens substantially the nature of the case that the Club seeks to make concerning the plaintiff’s alleged contribution to the collapse of the retaining wall.

19. [29]

    Mr Lynch deposed:

20. [30]

    In light of this evidence, my conclusion was that it would not be fair to the plaintiff to permit the Club, at this late stage, to make the amendment proposed.

21. [31]

    The Club proposes certain other minor amendments to its List Response which, as I understood it, are not opposed by the plaintiff.

The proposed evidence of Mr Burton and Mr Dempsey

1. [32]

   As developed Mr Le Plastrier in oral submissions, the only parts of the affidavits of Mr Burton and Mr Dempsey that the Club pressed were those that, in effect, dealt with an allegation by one of the plaintiff’s witnesses, Mr Peter Weir. Mr Weir was the project and construction manager of the work on the plaintiff’s site, having been appointed by Landcom (to whom the invoice to which I have referred was addressed).

2. [33]

   In his affidavit, Mr Weir gives an account of a meeting on 12 February 2008 which, the plaintiff alleges, a “warning” was given on behalf of the plaintiff to the Club that a stormwater control system was “integral to the design and use of the wall and must not be affected”.

3. [34]

   Mr Burton and Mr Dempsey responded to Mr Weir’s evidence by, in effect, deposing that neither of them recalled receiving any such warning from Mr Weir.

4. [35]

   In those circumstances, I propose to allow pars 1 of each affidavit, pars 2 and 23 of Mr Dempsey’s affidavit, and pars 37 and 38 of Mr Burton’s affidavit.

5. [36]

   Otherwise, each affidavit does no more than annex documents and make inadmissible assertions. I do not propose to allow the Club to adduce that evidence from these witnesses.

Conclusion

1. [37]

   The parties should confer and agree on the orders necessary to give effect to these reasons.

2. [38]

   In the meantime, I have directed that the matter be stood over for further directions on 19 November 2021 and that the parties confer and agree on the further directions that will be needed in order to ready the matter for hearing by Mr Inatey QC.