Wilkinson v McCabe [2009] NSWDC 6

Wilkinson v McCabe [2009] NSWDC 6

Although the pleading did not precisely identify the broken pipe, it sufficiently identified the issues and was not utterly without substance. The defendants acted unreasonably by continuing to decline investigation of subsoil conditions in the area most likely causing the water penetration until October 2007, but the plaintiff also delayed notifying the defendants after discovering the leaking pipe in June 2007 and two adjournments were beyond the defendants' control. Costs were therefore apportioned rather than awarded wholly to either side.

Jurisdiction
Australia
Judgment Date
03 February 2009
Procedural Posture
Civil Nuisance and Damage Claim Concerning Water Penetration / Costs Determination After the Plaintiff Elected Not to Pursue the Substantive Claims and Sought Dismissal
Outcome
The proceedings were otherwise dismissed, with costs apportioned between the parties.
Legal Topics
['private Nuisance' 'water Penetration' 'costs Where Substantive Proceedings Are Not Pursued' 'reasonableness of Conduct in Litigation']
['civil Procedure' 'costs' 'torts'] ['private Nuisance' 'water Penetration' 'costs Where Substantive Proceedings Are Not Pursued' 'reasonableness of Conduct in Litigation']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Nuisance and Damage Claim Concerning Water Penetration / Costs Determination After the Plaintiff Elected Not to Pursue the Substantive Claims and Sought Dismissal

Legal Issues

  1. 1 ['What costs order was appropriate where the substantive nuisance proceedings were not pursued and there had been no trial of the issues.' "Whether the defendants acted unreasonably in responding to the plaintiff's claim of nuisance causing water penetration." "Whether the plaintiff's pleaded claim was utterly without substance because it did not precisely identify the broken pipe as a cause of the nuisance."]

Ratio Decidendi

Although the pleading did not precisely identify the broken pipe, it sufficiently identified the issues and was not utterly without substance. The defendants acted unreasonably by continuing to decline investigation of subsoil conditions in the area most likely causing the water penetration until October 2007, but the plaintiff also delayed notifying the defendants after discovering the leaking pipe in June 2007 and two adjournments were beyond the defendants' control. Costs were therefore apportioned rather than awarded wholly to either side.

Court Disposition

The proceedings were otherwise dismissed, with costs apportioned between the parties.

Orders

  • ["The plaintiff is to pay the defendants' costs occasioned by reason of the adjournments of the proceedings granted on 5 November 2007 and 29 April 2008." "The defendants are to pay the plaintiff's costs of the proceedings up to and including 30 August 2007 and those incurred after 20 October 2008, with the...