JURISDICTION	:	DISTRICT COURT OF WESTERN AUSTRALIA 
IN CIVIL 

LOCATION	:	ALBANY 

CITATION	:	CRUGNALE & ANOR -v- FAGENTS & ANOR [2001] WADC 213 

CORAM	:	BLAXELL DCJ 

HEARD	:	13 JUNE, 24 JULY 2001 

DELIVERED	:	7 SEPTEMBER 2001 

FILE NO/S	:	CIV 76 of 1994 

BETWEEN	:	FERNANDO ANTONIO CRUGNALE
MARISA GIVLIANA CRUGNALE
Plaintiffs
 
AND
 
ROBIN ANTHONY FAGENTS
JANET FAGENTS
Defendants 

Catchwords:
Practice and procedure - Application by defendants for summary judgment - Consequent application by plaintiffs for leave to amend statement of claim so as to plead cause of action which would otherwise be statute barred - Turns on own facts 
Legislation:
Rules of the Supreme Court of Western Australia  
Result:
Defendants' application for summary judgment refused 
Order that plaintiffs have leave to amend statement of claim 

Representation:
Counsel:
Plaintiffs	:	Mr L E James
Defendants	:	Mr I A Morison 
Solicitors:
Plaintiffs	:	Kott Gunning
Defendants	:	Haynes Robinson 

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil 

1	BLAXELL DCJ:  In this matter the defendants apply for leave to enter summary judgment against the plaintiffs pursuant to O 16 of the Rules of the Supreme Court.  In response to this application, and in light of an admitted shortcoming in the plaintiffs' cause of action as pleaded, they have applied for leave to amend their statement of claim.  The proposed amendment if granted will plead a new cause of action which would otherwise be statute barred.  
The background to the present application
2		At all material times the parties have been the respective owners of adjoining blocks of land in Albany.  The southern boundary of the plaintiffs' land (Lot 71) is contiguous with the northern boundary of the defendants' land (Lot 70) and there is a slope between the two lots so that the plaintiffs' land is higher than the other.  
3		During 1993 the defendants carried out substantial excavations on their land for the purpose of constructing a house.  Part of that construction comprised a concrete and brick retaining wall along the common boundary.  The present statement of claim pleads that at the time of excavating their land in 1993 the defendants entered upon the plaintiffs' land and excavated and took away soil the property of the plaintiffs.  It is further pleaded that this excavation by the defendants removed the natural support of the plaintiffs' land causing it to subside and become unstable.  The plaintiffs claim damages or alternatively orders that their land be reinstated to "its natural ground level" and that the existing retaining wall be rectified so as to withstand the load imposed by the plaintiffs' land in its properly compacted natural condition.  
4		Following the commencement of the action in 1994 the proceedings became very protracted, and for much of the intervening period also involved a third party (being the builder who constructed the retaining wall).  The issues seemed to turn on conflicting reports from the parties' respective surveyors, and consequently in February 2000 I ordered the appointment of an independent expert pursuant to O 40 r 2 of the Rules of the Supreme Court.  The subsequent report of that independent expert surveyor (Mr Colin Shipp) was adopted by the Court by way of a consent order made on 13 June 2001.  
5		The order appointing the independent expert had required him to determine and report on the height of the original natural soil level along the boundary between the subject lots.  Consequently Mr Shipp referred back to old surveys including aerial mapping performed by the Department of Land Administration in January 1991, and a more formal survey conducted by John Kinnear & Associates in June 1992.  
6		These old surveys reveal (and the parties accept) that most if not all of the relevant excavation on the plaintiffs' land occurred within the period between those two surveys (viz between January 1991 and June 1992, and at a time prior to construction of the defendants' house).  According to Mr Shipp, the excavation that occurred during this period was centred at the south east corner of Lot 70 where approximately 1.43m of soil was removed.  The area of this excavation extended in an east west direction by some 10 to 15m and in a north south direction by some 7m.  
7		It would appear to be common ground that this excavation in 1991/1992 was a substantial reduction in the natural surface of the land and must have required major earthmoving machinery and trucks for its removal.  However, the male parties have each deposed in affidavits that they were unaware of and had nothing to do with excavations along the common boundary during that period.  
8		Although not expressly conceded by the defendants, it seems obvious that the present retaining wall would not be adequate to support the plaintiffs' land in its pre‑1991 state.  The defendants, however, contend that they were entitled to construct a wall sufficient to support the land as they found it in 1993.  It is unclear from the materials before me whether a further minor excavation of the plaintiffs' land occurred in 1993.  If a further such excavation did occur it is also not clear to me whether there is any real issue as to the sufficiency of the existing retaining wall in that regard.  
The merits of the respective applications
9		The defendants require leave to bring their application out of time, and they explain their delay on the basis that the independent report from the Court appointed expert has revealed new information at a late stage.  I consider this explanation to be reasonable one, and in my view leave should be granted.  
10		The defendants' application for summary judgment will have obvious merit if I refuse the plaintiffs' application for leave to amend their statement of claim.  I will accordingly deal with this latter application first.  
11		The amendment proposed by the plaintiffs will add a new cause of action in respect of the 1991/1992 excavation for which the period of limitation has expired.  Accordingly, and pursuant to O 21 r 5(5) of the Rules of the Supreme Court I have a discretion to allow the amendment only if the new cause of action:  
"… arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed … ."  
12		The proposed amendment is to paragraph 4 of the statement of claim which presently alleges that the excavations by the defendants occurred "in or about July 1993".  If the amendment is allowed it will be alleged that the excavations occurred "in 1991 or early 1992 and also in or about July 1993".  Notwithstanding that the earlier excavations must have occurred in very different circumstances from those connected with construction of the defendants' house in 1993, the factual assertions in remaining paragraphs of the statement of claim are wide enough to encompass the same.  
13		This being so, I consider it fair to describe the new cause of action as arising out of the same facts or substantially the same facts as the existing cause of action.  Given the circumstances in which the need for amendment has arisen, I also consider that I should exercise my discretion to allow the amendment and to grant the plaintiffs' application.  
14		It follows that the defendants' application for summary judgment must be determined on the basis of the amended statement of claim.  The only reasonable inference from the materials in the affidavits before me is that one or other of the plaintiffs or defendants carried out the excavation in 1991/1992.  (An inference that some stranger came onto the plaintiffs' land to carry out the excavation at that time would be remote and fanciful.)  The determination as to which of the parties carried out the excavation will turn upon their credibility in the witness box.  It follows that there is a real issue to be tried because if the plaintiffs' version of events is accepted then they will have a valid claim.  Accordingly the defendants' application for summary judgment should be refused.  
15		In refusing the defendants' application I also propose to make directions pursuant to O 16 r 3 of the Rules of the Supreme Court.  Subject to submissions from counsel, it is my tentative view that I should order that the action be forthwith set down for trial of a preliminary issue limited to the question of the identity of the parties who carried out the excavation in 1991/1992.