Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) [2020] NSWCA 199

Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liquidation) [2020] NSWCA 199

The primary judge erred in finding the Builder was not negligent regarding excavation near the Retaining Wall—contrary to geotechnical advice, the Builder removed support without ensuring adequate measures were in place. This was a necessary incident of the established mechanism of damage. However, the Builder was not negligent concerning foundation piles, lift pit excavation, or monitoring plan implementation. Hughes was not found liable, as evidence did not substantiate a breach in their design responsibility nor establish causative connection to damage. The only breach established was the Builder’s injudicious excavation on 20 August 2010, and this was causally linked to the loss...

Jurisdiction
Australia
Judgment Date
31 August 2020
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed in part against first and second respondents (Builder and Insurer); dismissed against third respondent (Hughes).
Legal Topics
['negligence' 'right of Support' 'causation' 'statutory Duty Under Conveyancing Act 1919 (nsw) S 177' 'proportionate Liability' 'proof of Negligence' 'res Ipsa Loquitur']
['building and Construction Law' 'torts'] ['negligence' 'right of Support' 'causation' 'statutory Duty Under Conveyancing Act 1919 (nsw) S 177' 'proportionate Liability' 'proof of Negligence' 'res Ipsa Loquitur']

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Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether the primary judge erred in failing to find the Builder liable for the building damage' 'Whether the primary judge erred in failing to find Hughes liable for the building damage' 'Errors relating to causation and application of the res ipsa loquitur doctrine']

Ratio Decidendi

The primary judge erred in finding the Builder was not negligent regarding excavation near the Retaining Wall—contrary to geotechnical advice, the Builder removed support without ensuring adequate measures were in place. This was a necessary incident of the established mechanism of damage. However, the Builder was not negligent concerning foundation piles, lift pit excavation, or monitoring plan implementation. Hughes was not found liable, as evidence did not substantiate a breach in their design responsibility nor establish causative connection to damage. The only breach established was the Builder’s injudicious excavation on 20 August 2010, and this was causally linked to the loss...

Court Disposition

Appeal allowed in part against first and second respondents (Builder and Insurer); dismissed against third respondent (Hughes).

Orders

  • ["Appeal as against the first and second respondents allowed in part, insofar as the primary judge dismissed the plaintiffs' claim against the first and third defendants." 'Appeal as against the third respondent dismissed.' "Appellants to pay the third respondent's costs of the appeal." 'On the proportionate...