Valherie v Strata Corporation No. 1841 Inc & Ors [2005] HCATrans 111 (4 March 2005)

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Valherie v Strata Corporation No. 1841 Inc & Ors [2005] HCATrans 111 (4 March 2005)

Last Updated: 16 March 2005

[2005] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A38 of 2004

B e t w e e n -

DANIELE VALHERIE

Applicant

and

STRATA CORPORATION NO. 1841 INC

First Respondent

IRENE M MITCHELL

Second Respondent

ANN ARNOTT

Third Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MARCH 2005, AT 11.23 AM

Copyright in the High Court of Australia

__________________

MS D. VALHERIE appeared in person.

MR T.R. BRYANT: May it please the Court, I appear for the first respondent. (instructed by Michael Hegarty & Associates)

MS I.M. MITCHELL appeared in person for the second and third respondents.

KIRBY J: You understand that you have a limited time.

MS VALHERIE: Yes.

KIRBY J: We have your written submissions and we have read those written submissions, so you do not have to repeat what is there. You proceed with your argument.

MS VALHERIE: That was my argument, your Honour, but I can summarise it. The first error in law that I am seeking leave to appeal from is the fact that the Full Court wrote that there had been no appeal from the orders concerning the third parties, which are the second and third respondents, and they did not discuss in their judgment the liability of these parties. My supplementary notice of appeal, like my notice of appeal, clearly indicates that I complain of the whole of the said orders.

The counsel for the first respondent has said that his Honour Justice Mullighan granted me leave to appeal to the Full Court on three grounds of appeal and that the wording of these grounds cannot be a basis for an appeal against the orders concerning the second and third respondents. Your Honours, the notice of appeal which was before his Honour contains 39 paragraphs and his Honour asked me at the hearing whether I had 39 grounds of appeal. My answer was, “No, I only have three grounds” and they are developed in all the paragraphs behind the grounds, that is the title of the ground. It is possible that the titles of my grounds were not very clear but the development behind them was extremely clear. In any case, his Honour ordered at point 2 in his orders of 3 October 2003:

Leave to appeal be granted in terms of that three grounds in exhibit DV1.

His Honour wrote “the three grounds” indicating through the use of the definite article that he had identified only three grounds of appeal in the entire notice before him. I will add that his Honour would have specified which paragraphs were allowed in the leave to appeal if he had thought that some grounds should not be contained in this order.

The title of ground 3 was his Honour erred in ruling that the appellant had caused the damage of the first respondent and in the following page, line 2 reads, “Liability for the first respondent’s alleged loss cannot lie with her, but with the first respondent itself and with the second and third respondents”. The argument, therefore, was that his Honour erred in ruling that I had caused the damage because I did not cause the damage, the first respondent did and the second and third respondents did. I believe that their Honours acknowledged that this reasoning of this ground in the first page of their reasons, when they write in the issues that have to be addressed in this case, whether the cause of the nuisance can be attributed to the second and third respondents. This issue was not addressed in the reasons for judgment.

I wish to quote his Honour Magistrate Clarke, page 17 of the application book, line 38. His Honour writes:

On all the evidence I find that the third parties maintained the lemon scented gum over a considerable period of time and took no steps to reduce, abate or eliminate the risk of damage to the plaintiff’s buildings which I find was reasonably foreseeable by the third parties.

The third parties had lived in this property for 19 years. I had been the owner of this property for 18 months at the time where the first respondent wrote its first and only letter to me with regard to some possible damage. I will again quote his Honour when he quotes the first respondent’s expert witness at page 18 of the application book, line 13:

No, the cracking tends to be accumulative over the years where there may even be a slight closing up of the cracks in winter periods when there’s sufficient rain to counterbalance to a certain degree the drying effect of the tree, but generally the cracks continue to increase in width over the seasons unless the tree is removed.

And line 22, his Honour asks:

So you believe that over the 25 years of the life of these units with this tree next to them that tree has over time contributed to the bad shape of the units today.

And the expert witness answers:

I do.

In other words, the second and third respondents had lived 19 years out of the 25 years of continual structural damage caused apparently by this tree where I had lived 18 months and I believe that I was simply in the wrong place at the wrong time. If I had purchased this property two years later it would have been the third party’s responsibility – it would have always been the third party’s responsibility for this damage because it had been an ongoing damage for 25 years; it did not happen overnight.

The second major ground - I am only raising some points, not all the points. Another point where I believe their Honours erred in law is when they did not take into account my personal circumstances. Their Honours wrote at page 85:

By November 1999, Ms Valherie became increasingly distressed about the condition of the house and sought to rescind the contract for the purchase of the property. In July 2000 she commenced proceedings in the District Court against Ms Mitchell and Ms Arnott. During this time Ms Valherie suffered from a depressive mental condition.

And paragraph 11:

In November 2000 Ms Valherie suffered a nervous breakdown.

I wish to quote an extract from my first extract authorities, Goldman v Hargrave, 1966. Paragraph 23 reads:

So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be “reasonable” since what is reasonable to one man may be very unreasonable, and indeed ruinous to another.

I wish to stop there and point out that at the time where the first respondent sent me its only letter talking about the damage, I was a fortnight of my departure to Australia that had been forced upon me by the disastrous circumstances of my life, the disastrous consequences of the misrepresentation. I had to leave Australia because I could not live in Australia any longer, I had no money left. I had to return to my family to seek help and support. When I received that letter my answer was, in a nutshell, that I could not deal with this problem because I was leaving and I believed that they should go to the builders of the units if they had structural damage to their units. I had to go to France and I left an address for them to contact me there if there was a need to further contact and they have never contacted me.

The first respondent says that I should have stayed in Australia to deal with the problem. That circumstance where “what is reasonable to one man may be very unreasonable, and indeed ruinous to another”, that is precisely my case. It was simply not possible at all for me to have stayed at this point in my life in Australia to deal with this problem and I pleaded all of this before their Honours and they had a knowledge that I was suffering from a depressive mental condition and I was suffering from a nervous breakdown. I am still requested to have acted immediately upon just one letter.

CALLINAN J: No, Ms Valherie, what Chief Justice Doyle said at page 59 is that you should have maintained an appropriate watering program, and the fact that you were not in Australia – I understand why you were not in Australia and why it was all very difficult for you, but it would have been possible for you to have made arrangements for somebody else to maintain a watering program.

MS VALHERIE: Yes, your Honour, but the - - -

CALLINAN J: People just cannot walk away from causing damage to other people; you just cannot do it.

MS VALHERIE: The first respondent never explained what the damage was, your Honour. I had no idea that it could be linked to any watering problem. Besides, the first respondent’s damage had occurred when I was watering my property. I mean, that is only one of the reasons why I am seeking leave to appeal, but there are other reasons.

I also claim that their Honours erred in law when they found that the conditions for contributory negligence had been met but did not apply the law of contributory negligence that I had pleaded. Now, your Honours, if the first respondent had sent me just one more letter requesting me to water my property and to remove this tree, it would have been done very quickly. I still had some contacts in Australia at that particular point in time and I could – my neighbour, for example, could have organised it.

CALLINAN J: Ms Valherie, at page 56 of the book, Chief Justice Doyle says in paragraph 47 that you were aware of the need to maintain adequate watering of the soil because of the reports that you had obtained in 1999 and 2000.

MS VALHERIE: Yes, your Honour, but I have also said in my notices of appeal to his Honour Chief Justice Doyle and also to their Honours that all the advices that I had been given by the engineers that had come to inspect my house had not stopped the house from falling down. Therefore, I was not in a position, especially since I was extremely inexperienced in all these problems, I had never encountered that previously in my life ever, and they were all telling me that if I was watering my garden, my house would not crack. Well, I was watering my garden and my house was falling over my head, so I was not at this point of time linking the watering with the cracks. I was linking the cracks with the fact that there was inadequate footings to a particular building which was another reason that had been explained to me. And in my letter to the first respondent, I talked about inadequate footings and I told them to direct their claim to the builder of the units because they had not probably put adequate footings.

In my mind at the time, the problem of structural damage could only come from inadequate footings and had nothing to do with watering because I had watered my garden, and it had not stopped the cracking, so the cracking had to come from another problem. Now, paragraph 22 of the reasons of their Honours, page 88 of the application book, reads:

The conduct of the corporation was unreasonable and represented a failure on the part of the corporation to take reasonable steps to mitigate its loss.

Now, in Astley v Austrust Limited which is extract authorities No 2, beginning of paragraph 21 reads:

At common law, contributory negligence consisted in the failure of a plaintiff to take reasonable care for the protection of his or her person or property.

The first respondent did not write to me a second time, just one second time, to request to me the removal of the tree and the watering of the garden.

KIRBY J: All these matters have been gone through in the Full Court.

MS VALHERIE: Yes, your Honour.

KIRBY J: You are now seeking to come into the highest Court in the land, and normally we do not accept appeals unless there is some important or general or special point or serious miscarriage of justice because we just do not have the time to look at every case again. You have already gone through three levels of hearing.

MS VALHERIE: But your Honour, there has to be - - -

KIRBY J: You have already gone through three levels of hearing before the courts: the magistrate, Chief Justice Doyle and three judges of the Full Court. So you really have to be able to establish that there is something special that would warrant this Court going into the matter.

MS VALHERIE: Well, there is several errors of law, your Honour. The first error of law is that I have appealed against the orders concerning the second and third respondents, and this appeal has not been heard at all by the Full Court, has not been considered at all. That is an error in law. There is another error in law when their Honours acknowledge the contributory negligence but do not take it into account. Their Honours say in their reasons for judgment that the removal of the tree was delayed because of the misconduct of the Strata Corporation. The Strata Corporation misled the court by not telling the court that it knew my address and could contact me without any difficulty, and that has delayed the removal of the tree.

Now, their Honours are asking me to pay for the damage that has occurred because of the delay in the removal of the tree. That was the fault of the misconduct of the Strata Corporation. If the Strata Corporation had not engaged in legal proceedings instead of contacting me, the tree would not have taken nine months to be removed, and it is these nine months of damage that the court is asking me to pay. This is an error of law. The Strata Corporation has caused the damage that has occurred between the first letter that the Strata Corporation has sent to me and the removal of the tree.

All this delay was caused because the court was asking the Strata Corporation to find me, and they have pretended to look for me everywhere in Australia, everywhere where I was not. They have wasted nine months because they were pretending that they did not know where I was, where in fact they knew where I was. And if they had not delayed by these nine months, I would not have first had to pay for the damage that has been caused, second, by all the court’s costs that have been - - -

KIRBY J: I hope you will not misunderstand what I am going to say, but this Court would not normally get into matters that are so particular, so specific, so limited, so related only to your dispute which has already gone
through three courts. We just do not – it has to have something that is general and of legal significance or a serious miscarriage of justice for the High Court to – we only can do about 60 or 70 cases in one year.

MS VALHERIE: I understand, your Honour, but when a court finds that all the conditions are met to apply a law and does not apply the law, that is an importance circumstance, because the conditions were met to apply the law of contributory negligence not only to the damages but also to the court proceedings, the court costs, which the first respondent is claiming is worth $14,000 today. I have spent over $6,000 myself to fight this claim that would not have existed if the first respondent had sent me a second letter. Therefore, the Full Court has acknowledged that the further damage that I have to pay has been caused by the respondent’s behaviour.

KIRBY J: But what is the general importance of your case?

MS VALHERIE: The general importance of my case is that the law says that a court has to hear the appeal that the party puts before it. My appeal against the second and third respondents, where I say that they are the only parties which can be held liable in this case, has not been heard at all. That is an error of law. Another error of law is that their Honours have said that the corporation has not taken reasonable steps to mitigate its loss, which is the definition of the contributory negligence and the court has not - the law says at common law, contributory negligence consisted in the failure of a plaintiff to take reasonable care for the protection of his or her person or property. Their Honours write, “The conduct of the corporation was unreasonable and we presented a failure on the part of the corporation to take reasonable steps to mitigate its loss”. That is the definition of contributory negligence. Their Honours have not applied the rule of contributory negligence at all when they have requested me to pay for the damage and the court costs, the cost of the legal proceedings that have been engaged because the Strata Corporation has chosen litigation, whereas they could simply send me a second letter and ask me what the engineer had requested them to do.

KIRBY J: Thank you very much. Mr Bryant, the Court does not need your assistance in this matter, and it does not need the assistance of Ms Mitchell or Ms Arnott.

This application concerns a dispute that originally arose out of damage found to have been caused to a neighbouring property by a tree growing in the applicant’s property. The case has progressed through the Magistrates’ Court in South Australia, through an appeal to the Supreme Court of South Australia heard by Chief Justice Doyle, and then to the Full Court of the Supreme Court of South Australia. The Full Court allowed the applicant’s appeal on the issue of damages and reduced the damages awarded against the applicant from $21,875 to $5,170. The applicant is still aggrieved and seeks special leave to appeal to this Court.

There is, in our view, no reason to doubt the correctness of the reasons and orders of the Full Court. The case substantially concerns issues of fact or questions of costs or new claims that are not suitable for what would be a fourth hearing, before this Court.

It is not necessary to decide whether, as the respondents assert, the purported joinder of the second and third respondents in the application is misconceived and that the appeal in respect of them would be incompetent. The application for special leave to appeal is refused. The applicant must pay the respondents’ costs.

AT 11.48 AM THE MATTER WAS CONCLUDED