Cohen v Double Bay Bowling Club (No 4) [2021] NSWSC 872

Cohen v Double Bay Bowling Club (No 4) [2021] NSWSC 872

Leave to amend was refused as the plaintiffs failed to plead facts which, if proved, would establish that the Club did anything on or in relation to its property that removed support to the plaintiffs’ property as required by s 177 of the Conveyancing Act 1919 (NSW). The purported non-delegable duty was not sufficiently pleaded, nor was there a proper linkage between the Club’s conduct and the alleged loss of support; the material relied on related to vibration-caused damage, not removal of support. Pleaded failures regarding contractual terms were omissions, not acts within s 177.

Parties
First Plaintiff/respondent: Gregory Clive Cohen; Second Plaintiff/respondent: Mariela Sverdloff; First Defendant/applicant: Double Bay Bowling Club; Second Defendant: Brianda Pty Ltd; Third Defendant: CF Group Piling Pty Ltd
Jurisdiction
Australia
Judgment Date
20 July 2021
Procedural Posture
Civil (equity Technology and Construction List) / Application for Leave to Amend List Statement; Motion to Strike Out and Dismiss Against First Defendant
Outcome
Leave to amend refused as against first defendant; proceedings dismissed with costs against first defendant
Legal Topics
Statutory Duty of Support of Land, Amendment of Pleadings, Non Delegable Duty, Removal of Support, Vibratory Piling Works, Costs
Building and Construction Civil Procedure Statutory Duty of Support of Land Amendment of Pleadings Non Delegable Duty Removal of Support Vibratory Piling Works Costs

Case Brief

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Parties

Gregory Clive Cohen

First Plaintiff/respondent

Mariela Sverdloff

Second Plaintiff/respondent

Double Bay Bowling Club

First Defendant/applicant

Brianda Pty Ltd

Second Defendant

CF Group Piling Pty Ltd

Third Defendant

Procedural Posture

Civil (equity Technology and Construction List) / Application for Leave to Amend List Statement; Motion to Strike Out and Dismiss Against First Defendant

Legal Issues

  1. 1 Whether proposed amended List Statement pleads facts capable of establishing breach of statutory duty under s 177 of the Conveyancing Act 1919 (NSW) by first defendant
  2. 2 Whether s 177 duty is non-delegable under s 5Q Civil Liability Act 2002 (NSW)
  3. 3 Whether factual allegations properly plead removal of support as required by s 177

Ratio Decidendi

Leave to amend was refused as the plaintiffs failed to plead facts which, if proved, would establish that the Club did anything on or in relation to its property that removed support to the plaintiffs’ property as required by s 177 of the Conveyancing Act 1919 (NSW). The purported non-delegable duty was not sufficiently pleaded, nor was there a proper linkage between the Club’s conduct and the alleged loss of support; the material relied on related to vibration-caused damage, not removal of support. Pleaded failures regarding contractual terms were omissions, not acts within s 177.

Court Disposition

Leave to amend refused as against first defendant; proceedings dismissed with costs against first defendant

Orders

  • Leave to amend Technology and Construction List Statement refused insofar as concerns Double Bay Bowling Club
  • Proceedings dismissed as against Double Bay Bowling Club with costs