Kalgovas v Iliopoulos [2022] NSWSC 70

Kalgovas v Iliopoulos [2022] NSWSC 70

The excavation works on No 20 reduced the support previously provided to No 18. The defendants breached the s 177 duty of care by failing to install an appropriate retaining wall on an unretained section of the boundary and by constructing a dry stone retaining wall that was not adequately designed or constructed to deal with hydrostatic pressure, drainage and soil migration. Those breaches caused subsidence and damage to structures on No 18, and non-negligible damage first became manifest in 2014 so the negligence claim was not statute barred. Mandatory injunctive relief requiring remedial works was appropriate, but removal of the dry stone wall was not justified because the encroachment...

Jurisdiction
Australia
Judgment Date
08 February 2022
Procedural Posture
Equity Proceeding Concerning Negligence, Statutory Duty, Encroachment, Trespass and Nuisance Arising From Excavation and Retaining Works Between Adjoining Residential Properties / Principal Judgment After Trial
Outcome
Plaintiffs succeeded on their primary negligence claim pursuant to s 177 of the Conveyancing Act 1919 (NSW); mandatory injunctive relief to be granted in the first instance, with assessment of damages or compensation deferred.
Legal Topics
['duty Not to Reduce Support for Supported Land' 'excavation Near Boundary With Adjoining Land' 'retaining Walls' 'mandatory Injunctive Relief' 'encroachment of Buildings' 'limitation Period']
['negligence' 'land Law' 'equity' 'statutory Duty' 'trespass' 'nuisance'] ['duty Not to Reduce Support for Supported Land' 'excavation Near Boundary With Adjoining Land' 'retaining Walls' 'mandatory Injunctive Relief' 'encroachment of Buildings' 'limitation Period']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Negligence, Statutory Duty, Encroachment, Trespass and Nuisance Arising From Excavation and Retaining Works Between Adjoining Residential Properties / Principal Judgment After Trial

Legal Issues

  1. 1 ['Whether excavation and other works carried out on No 20 reduced the support provided to No 18 within s 177 of the Conveyancing Act 1919 (NSW).' 'Whether the defendants breached the duty of care by failing to install an appropriate retaining wall south of the front façade of No 18 and by constructing an inadequate dry stone retaining wall.' 'Whether any breach caused damage to structures on No 18, including subsidence of paving and cracking or subsidence of the stairway support wall.' "Whether the plaintiffs' negligence claim was statute barred under s 14 of the Limitation Act 1969 (NSW)." 'Whether breaches of Part 31 of Ordinance No 70 made under the Local Government Act 1919 (NSW) gave rise to private relief.' 'Whether the dry stone retaining wall encroached on No 18 and whether removal should be ordered under s 3 of the Encroachment of Buildings Act 1922 (NSW).' 'Whether the pleaded trespass and nuisance claims added any further relief.']

Ratio Decidendi

The excavation works on No 20 reduced the support previously provided to No 18. The defendants breached the s 177 duty of care by failing to install an appropriate retaining wall on an unretained section of the boundary and by constructing a dry stone retaining wall that was not adequately designed or constructed to deal with hydrostatic pressure, drainage and soil migration. Those breaches caused subsidence and damage to structures on No 18, and non-negligible damage first became manifest in 2014 so the negligence claim was not statute barred. Mandatory injunctive relief requiring remedial works was appropriate, but removal of the dry stone wall was not justified because the encroachment...

Court Disposition

Plaintiffs succeeded on their primary negligence claim pursuant to s 177 of the Conveyancing Act 1919 (NSW); mandatory injunctive relief to be granted in the first instance, with assessment of damages or compensation deferred.

Orders

  • ['Defendants to carry out works in respect of the unretained section of the boundary south of the house on No 18, essentially as agreed between the engineering experts.' 'Defendants to carry out works essentially as recommended by Mr Kokolis to strengthen the dry stone retaining wall.' 'Assessment of damages and any...