Australia Judgment

Rayman v Brown

Tort Negligence Evidence Property Construction Law Civil Litigation Building and Construction Property Damage

+40 more

Status: Judgment
Jurisdiction: Australia
Posture: Equity Commercial List / Principal Judgment After Hearing and Reopened Hearing

On this page

Professional case brief

Research organized from the available case record

Source document

Holding and result

Ms Rayman succeeded in negligence against Ms Brown and Scopeview because the decision to use sheet piling, contrary to the earlier geotechnical recommendation and in the circumstances known to the defendants, was a failure to take reasonable precautions that caused the damage. The court held that s 177 was engaged by the act of deciding to use sheet piling but that it did not impose a non-delegable duty. Ms Brown’s contributory negligence case failed, and Scopeview’s proportionate liability was assessed at 15% after finding Meso, VMS, IDC and EIA were concurrent wrongdoers. The application to reopen was allowed only on a limited issue because the court regarded the disputed post-hearing evidence as fresh and potentially important to the integrity of the evidence on which judgment would be based, despite its credit-related character and some concern that it effectively sought to re-agitate the case. Leave was confined to the disputed 2 March 2020 conversation, with prejudice to be managed by costs and further cross-examination. The evidence sought to be adduced through Mr Rod was improperly obtained because Mr Rod breached rr 22.4, 25.1 and 33.1 of the Solicitors' Conduct Rules by conferring with Mr Doueihi in circumstances where Scopeview was represented and indemnified, and by participating in a conference involving more than one lay witness about contentious evidence. The probative value of the evidence was very low, and the desirability of admitting it did not outweigh the undesirability of admitting improperly obtained evidence. The Court preferred the contemporaneous documents and common-sense logic of events over unreliable recollections, finding that Mr Doueihi did not tell Mr Brown not to send the geotechnical and sheet-piling documents to the Raymans, and did not say that Conditions 13 and 14 had already been complied with; Mr Brown knew he had not himself given the requisite notice by 22 April 2020. The Court also found that a decision to use sheet piling had been made by Mr Doueihi between 19 December 2019 and 21 January 2020, while admitting the reopened evidence only because its desirability outweighed its improper obtaining. On the valuation evidence, Mr Field’s assessment of the comparable sale as inferior to the subject property was preferred and the diminution in value caused by the construction and excavation works was found to be $1.15 million. On the engineering evidence, the primary cause of the damage was excessive vibrations during installation of the sheet piling, with secondary contribution from sheet pile deflection while unbraced and minor contribution from over-excavation and poor basement construction. The Court held that Ms Brown breached the common law / s 5B duty of care by agreeing to the use of sheet piling contrary to clear geotechnical warnings and that Scopeview breached its duty by agreeing to the use of sheet piling, failing to test the specialist advice it received, and failing to query vibration limits when damage was reported. The Court rejected the contention that s 177 of the Conveyancing Act imposed a non-delegable duty, but held that the section applies to more than one person and can be breached by the making of a decision to use sheet piling. Causation was established for the relevant breaches. Meso, VMS, IDC and EIA were found to be concurrent wrongdoers. Liability was apportioned having regard to each party’s responsibility. The court found Ms Rayman established negligence against Ms Brown and Scopeview. It held that the sale of the home was not forced by the damage and that sale-related costs such as staging, commission, marketing, conveyancing, moving costs, and removal of the liquor licence were not recoverable as consequential losses. However, cosmetic repair costs attributable to the damage were recoverable in part. The recoverable damages totalled $1,164,782.20, consisting of $1.15 million diminution in value and $14,782.20 cosmetic repair costs, with Scopeview liable only for 15% of that total due to proportionate liability.

Court disposition

Judgment for the plaintiff against both defendants; costs reserved for later determination on the papers.

Orders

Judgment in favour of the plaintiff against the first defendant in the sum of $1,164,782.20 plus interest.
Judgment in favour of the plaintiff against the second defendant in the sum of $174,717.33 plus interest.
Costs (other than those already ordered in relation to the reopening application and reopened hearing) to be determined on the papers.
If any party seeks to make submissions on costs, brief written submissions are to be filed within seven days, with any response within seven days thereafter.
Leave to reopen confined to the issue of the disputed 2 March 2020 conversation.
Mr Rayman’s costs of the reopening application to be borne by Ms Brown, including the hearing on 17 April 2026.
Scopeview’s costs of the reopening application reserved until after the reopened hearing.
Costs (other than those costs already ordered in relation to the reopening application and reopened hearing) to be determined on the papers.
If any party seeks to make submissions on costs, brief written submissions are to be filed within seven days and any response within seven days thereafter.

Material facts

Parties

Elisa Rayman

Plaintiff Counsel: M Klooster with CP Carter

Janet Brown

First Defendant Counsel: M Luitingh

Scopeview Projects Pty Ltd

Second Defendant Counsel: SJ Walsh

Ms Rayman

Plaintiff/applicant

Mr Rayman

Plaintiff/applicant

Ms Brown

Defendant/respondent

Mr Brown

Defendant/respondent

Mr Doueihi

Builder

Scopeview

Mr Brown

Mr Doueihi

Mr Rod

Mr Sara

Ms Button

Ms Gwynn-Jones

Mr Luitingh

Ms Rayman

Mr Brown

Lay Witness

Mr Doueihi

Lay Witness

Ms Rayman

Lay Witness

Mr Weinberg

Lay Witness

Ms Kerswell

Expert Valuer

Mr Field

Expert Valuer

Mr Rod

Lay Witness

Ms Rayman

Plaintiff

Ms Brown

First Defendant

Scopeview

Second Defendant

Meso

Concurrent Wrongdoer

VMS

Concurrent Wrongdoer

IDC

Concurrent Wrongdoer

EIA

Concurrent Wrongdoer

Amounts and remedies

First Defendant Liability: AUD 1,164,782.2
Second Defendant Liability: AUD 174,717.33
Scopeview Proportionate Liability: 15
Diminution in Value of Rayman Land: AUD 1,150,000
Meso Quote: AUD 2,253,482
Sheet Piles Completion Stage Amount: AUD 176,598.2
Claim by Ms Brown on Proposed Oral Agreement: AUD 69,853.56
EIA Proposal: AUD 6,600
Martens Fee Proposal: AUD 5,200
Warning Level Mm Per S: 8
Halt Level Mm Per S: 10
Highest Recorded Vibration Level Monitor Four Mm Per S: 30.8
Estimated Selling Price Lower: AUD 6,000,000
Estimated Selling Price Upper: AUD 6,600,000
Contract Sale Price: AUD 7,450,000
Riverwall Rectification Quote: AUD 143,639.14
Rothshire Rectification Quote: AUD 1,202,204
Two and Half Hour Call: 2.5
Call Duration Two Hours Thirty One Minutes Fifty One Seconds: 151
Owen Street Property Sale Price: AUD 8,126,000
Mr Field Subject Property Valuation: AUD 8,600,000
Ms Kerswell Subject Property Valuation: AUD 8,075,000
Differential Between Experts’ Final Valuations: AUD 525,000
Mr Field Premium Applied: AUD 474,000
Diminution in Value: AUD 1,150,000
Subject Property Sale Price in October 2024: AUD 7,450,000
Damage Estimate Initially Claimed: AUD 3,000,000
Cost of Repair Ultimately Claimed: AUD 42,486.2
Vibration Limit Recommended by Martens Report: 3
VMS Warning Level: 8
VMS Halt Level: 10
Sheet Pile Wall Offset Mentioned: mm 300
Sheet Pile Wall Offset Mentioned: mm 400
Meso Apportionment: 35
IDC Apportionment: 20
VMS Apportionment: 20
EIA Apportionment: 10
Scopeview Apportionment: 15
Ms Rayman Claimed Diminution in Value: AUD 1,150,000
Ms Rayman Claimed Staging Costs: AUD 10,615
Ms Rayman Claimed Cosmetic Works: AUD 42,486.2
Ms Rayman Claimed Marketing Costs: AUD 11,670
Ms Rayman Claimed Agent's Commission: AUD 122,925
Ms Rayman Claimed Conveyancing Costs: AUD 8,056.95
Ms Rayman Claimed Moving Costs: AUD 1,917.75
Ms Rayman Claimed Liquor Licence Removal: AUD 8,756
Recoverable Cosmetic Repair Cost Item 1: AUD 11,215
Recoverable Cosmetic Repair Cost Item 2: AUD 2,494.7
Recoverable Cosmetic Repair Cost Item 3: AUD 1,072.5
Recoverable Consequential Loss: AUD 14,782.2
Total Recoverable Damages: AUD 1,164,782.2
Judgment Against Scopeview: AUD 174,717.33

Procedural history

Posture

Equity Commercial List / Principal Judgment After Hearing and Reopened Hearing

Questions and positions

Legal issues

01
Whether Ms Brown and Scopeview breached duties of care in relation to the excavation and shoring works
02
Whether s 177 of the Conveyancing Act imposed a non-delegable duty
03
Whether Meso, VMS, IDC and EIA were concurrent wrongdoers for proportionate liability purposes
04
Whether damage was caused by the alleged breaches
05
Whether Ms Rayman was contributorily negligent
06
Whether sheet piling and excavation works caused damage to the Rayman Home.
07
Whether development consent conditions requiring reports and notification were satisfied before works commenced.
08
Whether the Browns or Mr Doueihi were responsible for sending reports and notices to adjoining owners.
09
Whether the vibration levels exceeded the stated warning and halt levels during sheet piling.
10
Whether delay in installing cross-bracing contributed to movement and damage.
11
Whether the hearing should be reopened to adduce further lay evidence about the disputed 2 March 2020 conversation.
12
Whether the newly proffered evidence was fresh, credible, material, and whether prejudice could be managed by costs and cross-examination.
13
Whether the post-hearing communications and solicitor involvement raised concerns about the integrity of the fact-finding process.
14
Whether Mr Rod's evidence was improperly obtained for the purposes of s 138 of the Evidence Act
15
Whether Mr Rod breached rr 22.4, 25.1 and 33.1 of the Solicitors' Conduct Rules
16
Whether the desirability of admitting the evidence outweighed the undesirability of admitting it
17
Whether evidence obtained in breach of the Solicitors' Conduct Rules should be admitted
18
Whether Mr Brown and Mr Doueihi were reliable witnesses on post-hearing communications
19
Whether Mr Brown understood the Development Consent and Modified Development Consent conditions
20
Whether the decision to use sheet piling was made before the Contract was signed
21
Whether Mr Doueihi told Mr Brown not to send documents to the Raymans
22
Whether Mr Doueihi told Mr Brown that Conditions 13 and 14 had been complied with before the Construction Certificate issued
23
Valuation methodology and comparison of expert evidence
24
Valuation of the subject property by comparable sales
25
Cause of damage to the Rayman Home from excavation and sheet piling works
26
Whether the use of sheet piling and vibration limits were appropriate
27
Whether pre-existing defects contributed to the damage
28
Whether Ms Brown and Scopeview breached the common law / s 5B duty of care by agreeing to and carrying out sheet piling works.
29
Whether failure to give notification under Conditions 13 and 14 of the Modified Development Consent could constitute negligence or a breach under s 177 of the Conveyancing Act.
30
Whether s 177 of the Conveyancing Act imposes a non-delegable duty of care.
31
Whether Meso, VMS, IDC and EIA were concurrent wrongdoers liable in negligence.
32
Whether causation was established for the pleaded breaches.
33
How liability should be apportioned among concurrent wrongdoers.
34
How proportionate liability should be apportioned among concurrent wrongdoers
35
Whether sale-related costs were recoverable as consequential loss
36
What amount of cosmetic repair costs was recoverable
37
What judgment should be entered against each defendant

Party arguments

Applicant: Ms Rayman alleged that Ms Brown and Scopeview failed to take reasonable precautions to minimise or reduce the risk of damage to the Rayman Land and Home, including by using sheet piling contrary to the geotechnical recommendation and development consent conditions. Ms Rayman and Mr Rayman said they were not given prior notice of the heavy machinery works or relevant reports, and that vibrations from sheet piling caused immediate damage to their home. Ms Brown submitted that the disputed post-hearing conversations and corrected evidence were directly material to the central credibility contest and to responsibility for neighbour notification, and that any prejudice could be cured by costs and further cross-examination. Ms Rayman contended that Mr Brown understood the relevant consent conditions, that notice should have been given to neighbours, that the decision to use sheet piling occurred before contract execution, and that Mr Doueihi did not tell Mr Brown not to send the documents or that notification had already been given. Ms Rayman submitted that Mr Field’s valuation evidence should be preferred, that the damage caused a diminution in value of $1,150,000.00, and that the engineering evidence showed excessive vibration and other construction failings caused the damage. Ms Rayman submitted that Ms Brown and Scopeview should not have agreed to use sheet piling contrary to the Martens Report and other warnings, failed to comply with vibration limits and notification conditions, and thereby caused damage to the Rayman Home. She further submitted that s 177 of the Conveyancing Act imposed a non-delegable duty and that the concurrent wrongdoers also breached duties of care. Ms Rayman contended that the defendants’ negligence caused damage to her home, that the home’s value was diminished, and that she was entitled to recover sale-related consequential losses and cosmetic repair costs.
Respondent: Ms Brown relied on contributory negligence and betterment, and Scopeview relied on proportionate liability and asserted reliance on Meso/IDC/EIA/VMS and the design and monitoring documents. Ms Brown and Mr Doueihi gave evidence that responsibility for notifications and compliance was managed through the builder/certifier process, that the builder was in control of the site, and that the damage and remediation issues were not solely attributable to them. The respondents argued that the application was an impermissible attempt to re-agitate collateral credit issues, that leave to reopen should be refused, and that any reopening should be tightly confined if granted. Scopeview argued that Mr Rod's evidence was inadmissible because it had been improperly obtained through breaches of the Solicitors' Conduct Rules and the desirability of admission did not outweigh its undesirability. Ms Brown and Scopeview argued that Mr Brown was the driving force behind the project, that Mr Doueihi had decided to use sheet piling before the Contract, and that the post-hearing reopening evidence supported Mr Brown's account that Mr Doueihi had directed or assumed responsibility for notification. Ms Brown and Scopeview submitted that Ms Kerswell’s valuation should be preferred, that the property’s pre-existing defects and assumptions affected the valuation exercise, and that the damage and valuation issues should be treated differently. Ms Brown and Scopeview denied breach and causation, contending that Scopeview controlled the site, relied on specialist consultants, that notices were delegated or merely directory, that any failure to notify did not cause the damage, and that s 177 did not impose a non-delegable duty. They also contended that Meso, VMS, IDC and EIA bore substantial responsibility if any liability existed. Ms Brown argued the sale was a voluntary commercial decision that broke causation, that only limited cosmetic works were recoverable, and that there was no compensable loss beyond the sale-related costs; Scopeview argued recoverable loss was limited to diminution in value plus cosmetic repairs and that sale-related costs were not caused by the damage.

Court’s reasoning

Legal principles

01
Rayman v Brown [2026] NSWSC 731

The decision to use sheet piling was treated as the operative act causing removal of support for the purposes of s 177 of the Conveyancing Act.
02
Rayman v Brown [2026] NSWSC 731

Section 177 of the Conveyancing Act does not impose a non-delegable duty.
03
Civil Liability Act 2002 (NSW), ss 34, 35; Rayman v Brown [2026] NSWSC 731

The court applied the proportionate liability regime by assessing whether alleged third parties were concurrent wrongdoers.
04
Evidence Act 1995 (NSW), s 138; Rayman v Brown [2026] NSWSC 731

The admissibility of the challenged evidence was considered under s 138 of the Evidence Act 1995 (NSW).
05
Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

The jurisdiction to reopen is exercised with great caution because of the public interest in finality of litigation.
06
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303

Reopening is not to be used as a backdoor method for unsuccessful litigants to reargue their cases.
07
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3

Relevant considerations include whether the evidence is fresh, credible and apparently reliable, material to the outcome, and whether there is prejudice to the opposing party.
08
s 138 Evidence Act 1995 (NSW)

Evidence obtained improperly or in consequence of an impropriety is inadmissible unless the desirability of admitting it outweighs the undesirability.
09
r 22.4 Solicitors' Conduct Rules

A solicitor must not confer or deal with a party represented by or to the knowledge of the solicitor indemnified by an insurer unless willingness is signified.
10
r 25.1 Solicitors' Conduct Rules

A solicitor must not confer with more than one lay witness at the same time about contentious issues where the conferral could affect evidence, unless special circumstances require it.
11
r 33.1 Solicitors' Conduct Rules

In representing a client, a solicitor must not communicate about the subject of the representation with a person known to be represented by another practitioner unless an exception applies.
12
Watson v Foxman (1995) 49 NSWLR 315 at 319

The probative value of evidence must be assessed in light of credibility, contemporaneous documents, and the fallibility of memory.
13
Malco Engineering Pty Limited v Ferreira & Ors (1994) 10 NSWCCR 117; Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [35]

A witness’s evidence may be accepted in part even if another part is not accepted, and corroboration is not always required for the balance of the testimony.
14
Spencer v Commonwealth of Australia (1907) 5 CLR 418; [1907] HCA 82

The test for valuing property is that from Spencer v Commonwealth of Australia (1907) 5 CLR 418; [1907] HCA 82.
15
Conveyancing Act 1919 (NSW) s 177; discussion of statutory text, context, purpose; Pafburn Pty Ltd v Owners – Strata Plan No 84674 [2024] HCA 49; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

A duty stated in s 177 of the Conveyancing Act is a duty to exercise reasonable care, not a non-delegable duty to ensure reasonable care is taken by others.
16
Conveyancing Act 1919 (NSW) s 177(2), (12); discussion in judgment referring to Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118 and Cohen v Double Bay Bowling Club (No 4) [2021] NSWSC 872.

Section 177 of the Conveyancing Act requires an act done on or in relation to supporting land that removes support; omissions are not enough.
17
Common law negligence; Civil Liability Act 2002 (NSW) s 5B; reasoning in judgment.

A person may breach the common law / s 5B duty of care by agreeing to use sheet piling in the face of geotechnical warnings without proper expert advice, and by failing to query vibration limits when damage is reported.
18
Civil Liability Act 2002 (NSW) s 5D, s 5E; reasoning in judgment.

Causation is established where the negligent decision to use sheet piling was a necessary condition of the harm, and where failure to notify deprived the plaintiff of a reasonable opportunity to take steps to avert damage.
19
Civil Liability Act 2002 (NSW) ss 34-35; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613.

Apportionment under Pt 4 of the Civil Liability Act requires comparison of culpability and causative potency of each concurrent wrongdoer.
20
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34

Apportionment requires comparison of culpability and the relative importance of the acts of the parties in causing the damage.
21
Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463

The court must exercise a large discretionary judgment as to what is just, having regard to the comparative responsibilities of wrongdoers.
22
Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463

The court should consider which wrongdoer was more actively engaged and more able effectively to prevent the loss.
23
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313

A plaintiff who acts unreasonably in failing to minimise loss will have damages reduced to the extent the loss would have been less, with the onus on the defendant to show unreasonableness and extent.
24
Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348; Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353

The overriding requirement in measuring damages for injury to land is whether the measure is fair and reasonable.
25
Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26

Causation of consequential loss asks whether the defendant’s wrongful act was necessary for the loss, i.e. whether the loss would have occurred without it.

Ratio, limits and disposition

Ratio decidendi

Ms Rayman succeeded in negligence against Ms Brown and Scopeview because the decision to use sheet piling, contrary to the earlier geotechnical recommendation and in the circumstances known to the defendants, was a failure to take reasonable precautions that caused the damage. The court held that s 177 was engaged by the act of deciding to use sheet piling but that it did not impose a non-delegable duty. Ms Brown’s contributory negligence case failed, and Scopeview’s proportionate liability was assessed at 15% after finding Meso, VMS, IDC and EIA were concurrent wrongdoers. The application to reopen was allowed only on a limited issue because the court regarded the disputed post-hearing evidence as fresh and potentially important to the integrity of the evidence on which judgment would be based, despite its credit-related character and some concern that it effectively sought to re-agitate the case. Leave was confined to the disputed 2 March 2020 conversation, with prejudice to be managed by costs and further cross-examination. The evidence sought to be adduced through Mr Rod was improperly obtained because Mr Rod breached rr 22.4, 25.1 and 33.1 of the Solicitors' Conduct Rules by conferring with Mr Doueihi in circumstances where Scopeview was represented and indemnified, and by participating in a conference involving more than one lay witness about contentious evidence. The probative value of the evidence was very low, and the desirability of admitting it did not outweigh the undesirability of admitting improperly obtained evidence. The Court preferred the contemporaneous documents and common-sense logic of events over unreliable recollections, finding that Mr Doueihi did not tell Mr Brown not to send the geotechnical and sheet-piling documents to the Raymans, and did not say that Conditions 13 and 14 had already been complied with; Mr Brown knew he had not himself given the requisite notice by 22 April 2020. The Court also found that a decision to use sheet piling had been made by Mr Doueihi between 19 December 2019 and 21 January 2020, while admitting the reopened evidence only because its desirability outweighed its improper obtaining. On the valuation evidence, Mr Field’s assessment of the comparable sale as inferior to the subject property was preferred and the diminution in value caused by the construction and excavation works was found to be $1.15 million. On the engineering evidence, the primary cause of the damage was excessive vibrations during installation of the sheet piling, with secondary contribution from sheet pile deflection while unbraced and minor contribution from over-excavation and poor basement construction. The Court held that Ms Brown breached the common law / s 5B duty of care by agreeing to the use of sheet piling contrary to clear geotechnical warnings and that Scopeview breached its duty by agreeing to the use of sheet piling, failing to test the specialist advice it received, and failing to query vibration limits when damage was reported. The Court rejected the contention that s 177 of the Conveyancing Act imposed a non-delegable duty, but held that the section applies to more than one person and can be breached by the making of a decision to use sheet piling. Causation was established for the relevant breaches. Meso, VMS, IDC and EIA were found to be concurrent wrongdoers. Liability was apportioned having regard to each party’s responsibility. The court found Ms Rayman established negligence against Ms Brown and Scopeview. It held that the sale of the home was not forced by the damage and that sale-related costs such as staging, commission, marketing, conveyancing, moving costs, and removal of the liquor licence were not recoverable as consequential losses. However, cosmetic repair costs attributable to the damage were recoverable in part. The recoverable damages totalled $1,164,782.20, consisting of $1.15 million diminution in value and $14,782.20 cosmetic repair costs, with Scopeview liable only for 15% of that total due to proportionate liability.

Obiter and limits

The court noted that the failure to notify Ms Rayman of the plans and commencement of excavation works until 24 April 2020 was an omission, not an act, and therefore not a breach of s 177.
The court reserved costs and directed that any costs submissions be filed on the papers.
The injuries and damage were said by the occupants to have been immediately felt and observed during sheet piling.
Vibration monitors had warning and halt thresholds set at 8 mm/s and 10 mm/s respectively.
The notice of commencement declaration that all development conditions had been satisfied was incorrect, and Conditions 13 and 14 had not been satisfied.
By 24 April 2020 the Browns understood the difference between contiguous piling and sheet piling and that sheet piling was to be used.
The court noted that, in hindsight, the reopening application probably should have been dismissed because it was essentially an exercise in restoring Mr Brown’s credibility.
The court observed that there were serious issues raised about the conduct of a solicitor, as an officer of the Court, in participating in the post-hearing conversation and later preparing material for the reopening application.
The judge noted the risk that Mr Doueihi's evidence had been coloured by numerous discussions with Mr Brown.
The judge observed that the post-hearing process did not vindicate Mr Brown's credibility and instead cast doubt on the genuineness of the evidence relied on in the reopened hearing.
The Court noted that Mr Brown was the driving force behind the project in a non-operational sense, but not in day-to-day construction supervision.
The Court observed that the valuation dispute largely turned on ordinary comparable-sales analysis and differing views on market movements.
The Court stated that it made no adverse finding on Mr Brown's truthfulness overall, despite serious reliability concerns on some topics.
The Court noted that valuation by comparable sales involves a subjective assessment informed by experience.
The Court observed that the sale price in October 2024 may have reflected uncertainty as to rectification works and the stigma of the dispute.
The Court observed that the betterment contention was not ultimately pursued and therefore not dealt with.
The Court noted that expected behaviour had notice been given earlier was not accepted on the evidence.
The court observed that some invoices bundled work attributable to vibration damage with routine maintenance or waterproofing work, making precise quantification difficult.
The court noted that the EIA Report may have operated as a practical rubber-stamp for sheet piling, but made no such finding.

Court disposition

Judgment for the plaintiff against both defendants; costs reserved for later determination on the papers.

Judgment in favour of the plaintiff against the first defendant in the sum of $1,164,782.20 plus interest.
Judgment in favour of the plaintiff against the second defendant in the sum of $174,717.33 plus interest.
Costs (other than those already ordered in relation to the reopening application and reopened hearing) to be determined on the papers.
If any party seeks to make submissions on costs, brief written submissions are to be filed within seven days, with any response within seven days thereafter.
Leave to reopen confined to the issue of the disputed 2 March 2020 conversation.
Mr Rayman’s costs of the reopening application to be borne by Ms Brown, including the hearing on 17 April 2026.
Scopeview’s costs of the reopening application reserved until after the reopened hearing.
Costs (other than those costs already ordered in relation to the reopening application and reopened hearing) to be determined on the papers.
If any party seeks to make submissions on costs, brief written submissions are to be filed within seven days and any response within seven days thereafter.

Source and reliance status

Official court record

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Source document

On this page

Case details

Plaintiff

Elisa Rayman

First Defendant

Janet Brown

Second Defendant

Scopeview Projects Pty Ltd

Plaintiff/applicant

Ms Rayman

Plaintiff/applicant

Mr Rayman

Defendant/respondent

Ms Brown

Defendant/respondent

Mr Brown

Builder

Mr Doueihi

Party

Scopeview

Party

Mr Brown

Party

Mr Doueihi

Party

Mr Rod

Party

Mr Sara

Party

Ms Button

Party

Ms Gwynn-Jones

Party

Mr Luitingh

Party

Ms Rayman

Lay Witness

Mr Brown

Lay Witness

Mr Doueihi

Lay Witness

Ms Rayman

Lay Witness

Mr Weinberg

Expert Valuer

Ms Kerswell

Expert Valuer

Mr Field

Lay Witness

Mr Rod

Plaintiff

Ms Rayman

First Defendant

Ms Brown

Second Defendant

Scopeview

Concurrent Wrongdoer

Meso

Concurrent Wrongdoer

VMS

Concurrent Wrongdoer

IDC

Concurrent Wrongdoer

EIA

Language: English
Status: Judgment
Jurisdiction: Australia
Posture: Equity Commercial List / Principal Judgment After Hearing and Reopened Hearing
Procedural Posture: Equity Commercial List / Principal Judgment After Hearing and Reopened Hearing
Outcome: Judgment for the plaintiff against both defendants; costs reserved for later determination on the papers.

Judgment reading view

Judgment text

The complete available source text.

Source document

Court record

Judgment

Supreme Court New South Wales Summary available Medium Neutral Citation: Rayman v Brown [2026] NSWSC 731 Hearing dates: 22, 27-31 October 2025, 20 March 2026, 17 April 2026 Date of orders: 25 September 2026 Decision date: 25 September 2026 Jurisdiction: Equity - Commercial List Before: Ward P Decision: 1. Judgment in favour of the plaintiff against the first defendant in the sum of $1,164,782.20 plus interest.

2. Judgment in favour of the plaintiff against the second defendant in the sum of $174,717.33 plus interest.

3. Costs (other than those costs already ordered in relation to the reopening application and reopened hearing) to be determined on the papers.

4. Direct that if any party seeks to make submissions on costs, that party (or those parties) file brief written submissions (no more than two pages) on costs within seven days and any brief written submissions (no more than one page) in response to the other party’s (or parties’) submissions within seven days thereafter. Catchwords: TORT – negligence – duty of care at common law and under s 5B of the Civil Liability Act 1995 (NSW) – whether there was a breach of a duty of care by failing to take reasonable precautions to minimise or reduce the risk of damage to neighbouring property TORT – negligence – whether breach of the duty of care pursuant to s 177 of the Conveyancing Act 1919 (NSW) – whether s 177 imposes a non-delegable duty TORT – proportionate liability under s 35 of the Civil Liability Act 1995 (NSW) – whether concurrent wrongdoers – principles to be applied in apportioning liability DAMAGES – claim for diminution in value and consequential losses EVIDENCE – improperly obtained evidence – whether breaches of the Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) enliven s 138 of the Evidence Act 1995 (NSW) – whether the desirability of admission outweighs any undesirability Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 5R, 5S, 34, 35 Conveyancing Act 1919 (NSW), s 177 Conveyancing Amendment (Law of Support) Bill 2000 (NSW) Design and

Building Practitioners Act 2020 (NSW), ss 37, 39 Dividing Fences Act 1991 (NSW) Encroachment of Buildings Act 1922 (NSW) Environment Planning and Assessment Regulation 2000 (NSW) Environmental Planning and Assessment Act 1979 (NSW), ss 4.2, 76A Evidence Act 1995 (NSW), s 138 Evidence Act 2008 (Vic) Home Building Act 1989 (NSW), s 18B Interpretation Act 1987 (NSW), ss 8, 33 Local Government Act 1993 (NSW) Revised Professional Conduct and Practice Rules 1995 (NSW), r 18 Surveillance Devices Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), rr 2.3, 22.4, 25.1, 33.1 Workplace Surveillance Act 2005 (NSW) Cases Cited: AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (2026) 100 ALJR 170; [2026] HCA 2 Alcock v Wraith [1991] TLR 600 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617 Australian Securities and Investments Commission v Macdonald (No 5) [2008] NSWSC 1169 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; (1993) 67 ALJR 270 Bailey v Palonso [2020] NSWSC 1209 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; (2019) 93 ALJR 1007 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 Bird v DP (a pseudonym) (2024) 283 CLR 45; (2024)

ALJR 1349 Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651; (1969) 43 ALJR 206 Bower v Peate (1876) 1 QBD 321 Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 (2014) 254 CLR 185; (2014) 88 ALJR 911 Browne v Dunn (1893) 6 R 67 Brown v Etna Developments Pty Ltd [2025] NSWSC 358 Bunning v Cross (1978) 141 CLR 54 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; (1994) 68 ALJR 331 Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26 Cleland v The Queen (1982) 151 CLR 1 Cohen v Double Bay Bowling Club (No 4) [2021] NSWSC 872 Coleman v Power (2004) 220 CLR 1; (2004) 78 ALJR 1166 Council of the Law Society of New South Wales v Sideris (2025) 117 NSWLR 596; [2025] NSWCA 159 Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3 Dalton v Henry Argus & Co (1881) 6 App Cas 740 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2010] NSWCA 110 De Costi Seafoods (Franchises) Pty Ltd v Wachtenheim (No 2) [2012] NSWDC 286 De L v Director-General, Department of Community Services (NSW) (No 2) (1997) 190 CLR 207 Director of Public Prosecutions v Marijancevic (2011) 33 VR 440 Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 Fleming v R [2009] NSWCCA 233 Footscray Football Club Ltd v Kneale (2024) 77 VR 168; [2024] VSCA 314 Gagner Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413 Goldsmith v Sandilands (2002) 76

ALJR 1024; [2002] HCA 31 Haines v Bendall (1991) 172 CLR 60; (1991) 65 ALJR 349 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 John Llavero v Brett Anthony Shearer (2014) 17 BPR 33,381; [2014] NSWSC 1336 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 Kalantzis v Brown [2026] NSWCA 17 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Kondis v State Transport Authority (1984) 154 CLR 672 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 Legal Services Commissioner v Poole [2019] QCAT 381 Le Lievre v Gould [1893] 1 QB 491 Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26 Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 4) [2024] FedCFamC2G 554 Lym International Pty Ltd v Marcolongo (2011) 15 BPR 29,465 Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Malco Engineering Pty Limited v Ferreira & Ors (1994) 10 NSWCCR 117 Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 283 CLR 507; (2024) 98 ALJR 956 Mann v R [2023] NSWCCA 256 McDermid v Nash Dredging Ltd [1987] AC 906 Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2018] 1 Qd R 319; [2012] QCA 315 Mokbel v The King [2025] VSCA 243 MZAPC v Minister for Immigration and Border

Protection (2021) 273 CLR 506; [2021] HCA 17 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 39 Pafburn Pty Ltd v Owners – Strata Plan No 84674 (2024) 99 ALJR 148; [2024] HCA 49 Palmanova Pty Ltd v Commonwealth (2025) 99 ALJR 1362; [2025] HCA 35 Pantalone v Alaouie (1989) 18 NSWLR 119 Parker v Comptroller-General of Customs (2009) ALJR 494; [2009] HCA 7 Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Queensland Nickel Sales Pty Ltd v Park (Liquidators) of Queensland Nickel Pty Ltd (in liq) (2025) 312 FCR 225; [2025] FCAFC 129 R v Cornwell (2003) 57 NSWLR 82 R v Em [2003] NSWCCA 374 R v Grech; R v Kadir [2017] NSWCCA 288 R v Ireland (1970) 126 CLR 321 R v Riley [2020] NSWCCA 283 Reinhold v NSW Lotteries Corporation (No 2) (2008) 82 NSWLR 762 Ridgeway v The Queen (1995) 184 CLR 19 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 Scott v Davis (2000) 204 CLR 333; (2000) 74 ALJR 1410 Seamez (Australia) Pty Ltd v McLaughlin [1999] NSWSC 9 Secure Logic Pty Ltd v Noble (No 2) (2021) 306 IR 241; [2021] NSWSC 675 Smith v New South Wales Bar Association (1992) 176 CLR 256 Spence v Queensland (2019) 268 CLR 355;

(2019) 93 ALJR 643 Spencer v Commonwealth of Australia (1907) 5 CLR 418; [1907] HCA 82 St Paul’s College Ltd v Allan [2026] NSWCA 22 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436 (No 2) [2021] VSCA 122 Taylor v Burgess [2002] NSWSC 676 The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 2) [2019] NSWSC 440 Trajkowski v Simpson [2019] NSWCA 52 Ucak v Avante Developments Pty Ltd [2007] NSWSC 367 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; (1998) 72 ALJR 937 Vella v Commissioner of Police (NSW) (2019) 269 CLR 219; (2019) 93 ALJR 1236 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; (1992) 66 ALJR Watson v Foxman (1995) 49 NSWLR 315 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65 Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 Texts Cited: Ethics Guidelines, “Communicating with Another Solicitor’s Client” G.E. Dal Pont, Solicitor’s Manual (2026) Law Institute Victoria Ethics Guideline, The Obvious Error of

Another Communicating with Another Solicitor’s Client, 2022 Queensland Law Society Guidance Note No 29 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 April 2000 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 April 2000 Right to Support from Adjoining Land (Report No 84, 1997) (NSWLRC Report No 84) Second Reading Speech to the Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 April 2000 Uniform Evidence Law (21st ed) Category: Principal judgment Parties: Elisa Rayman (Plaintiff) Janet Brown (First Defendant) Scopeview Projects Pty Ltd (Second Defendant) Representation: Counsel: M Klooster with CP Carter (Plaintiff) M Luitingh (First Defendant) SJ Walsh (Second Defendant) Solicitors: ZBA Lawyers (Plaintiff) Jane Button & Associates Pty Ltd (First Defendant) Wotton Kearney (Second Defendant) File Number(s): 2022/00277974 Publication restriction: Nil headnote [This headnote is not to be read as part of the judgment] This dispute concerns damage occasioned to a property then owned by the plaintiff (Ms Elisa Rayman) on Gilgandra Road, North Bondi (the Rayman Land) by excavation works in the course of the redevelopment of an adjoining property (the Brown Land) which is owned by the first defendant (Ms Janet Brown). The redevelopment of the Brown Land comprised demolition of the then existing dwelling on

the land and the construction thereon of a new three-storey dwelling with an inground swimming pool in the north-western corner of the site. Excavation works commenced on the Brown Land in April 2020. A sheet pile shoring system was used as the temporary shoring system for the excavation. This involved the construction of retaining walls using interlocking steel sheet piles driven into the ground to form a continuous wall. This was contrary to the recommendation of the initial geotechnical engineer involved in the project that sheet piling not be used due to the risk of adverse vibrations causing harm to adjoining properties. That risk (clearly foreseeable and in fact both foreseen and the subject of a clear warning) came to bear, causing damage to Ms Rayman’s home (the Rayman Home). Ms Rayman commenced proceedings, relevantly claiming damages against Ms Brown and against the builder (Scopeview), for breach of s 5B of the Civil Liability Act 2002 (NSW) (Civil Liability Act) and breach of s 177 of the Conveyancing Act 1919 (NSW) (Conveyancing Act). In essence, Ms Rayman’s complaint is that, in the course of engaging in the excavation works, Scopeview removed support provided by the Brown Land to the Rayman Land, resulting in significant structural and other damage to her property. Ms Rayman contends, and the respective expert structural and geotechnical engineers agree, that the

primary cause of the damage was the occurrence of excessive vibrations during the construction of the sheet pile walls. That damage was immediate. There was some further damage, or exacerbation of the initial damage, over time. Subsequently, Ms Rayman amended her claim for damages to claim the diminution in value of the Rayman Land (as opposed to a claim for rectification costs) following her decision to sell the Rayman Land and entry into a contract for sale of the land in October 2024. Completion of the sale occurred in February 2025. Ms Brown, in her defence, raised a claim of contributory negligence against Ms Rayman based on an allegation that the Rayman Home (and, in particular, the footings) was not in good condition, which allegedly contributed to Ms Rayman’s loss and gave rise to a positive duty on Ms Rayman’s part to advise Ms Brown of those matters. No allegation of a failure to mitigate was made. Scopeview, unlike Ms Brown, invoked the proportionate liability regime under Part 4 of the Civil Liability Act. Ms Rayman joined as parties to the proceedings the alleged concurrent wrongdoers: Meso Solutions Pty Ltd (Meso), a shoring contractor that was engaged by Scopeview to design and install a temporary shoring system at the site of the excavation works; VMS Australia Pty Ltd (VMS), a specialist vibration management consultancy that was engaged by Meso to carry out

vibration monitoring during the installation of temporary sheet piling and during the excavation; In-ground Design & Consultants Pty Ltd (IDC), a design consultancy now in liquidation that was engaged by Meso to provide advice concerning the design of (or to design) a temporary shoring system at the Brown Land; and El Australia Pty Ltd (EIA), a geotechnical engineering consultancy engaged by Meso to carry out geotechnical investigation and to provide an opinion on the suitability of the use of sheet piling for the proposed development. Ms Rayman’s claims against each of the alleged wrongdoers (other than IDC, which was not served with the initiating process and played no part in the proceedings) were settled. There remained in dispute as between Ms Rayman and Scopeview the issue as to whether, and, if so, to what extent, the damage claimed to the Rayman Land was caused by the alleged concurrent wrongdoers. The following issues arose for determination: (1) Whether Ms Brown and/or Scopeview breached a duty of care owed to Ms Rayman pursuant to s 5B of the Civil Liability Act and/or at common law by failing to take reasonable precautions to minimise or reduce the risk of damage to the Rayman Land and/or Rayman Home. (2) Whether Ms Brown and/or Scopeview failed to exercise reasonable care in doing something in relation to the Rayman Land (s 177 of the Conveyancing Act) by reason of

one or more of the breaches. This issue includes the question whether s 177 imposes a non-delegable duty. (3) For the purposes of the claim against Scopeview (it being the only defendant to invoke proportionate liability), whether each of Meso, VMS, IDC and EIA was a concurrent wrongdoer. (4) Causation, i.e., whether damage was caused to the Rayman Land as a result of: one or more of the alleged breaches of Ms Brown and/or Scopeview (and, in the concurrent wrongdoing case by Scopeview, of Meso, VMS, IDC and/or EIA). (5) Related to the above, the issue of proportionate liability (the extent to which any of the concurrent wrongdoers contributed to Ms Rayman’s loss). (6) Damages: the claim for diminution in value of the Rayman Land and for consequential losses (costs associated with the ultimate sale in 2024, completed in 2025, of the property). The Court held: (1) Ms Rayman has established her claims in negligence against each of Ms Brown and Scopeview in relation to the decision to use sheet piling (and in the case of Scopeview in the carrying out of the excavation works for the temporary shoring using sheet piles). Ms Brown’s contributory negligence claim against Ms Rayman fails. (2) The duty not to remove support for the Rayman Land is not a non-delegable duty. The decision to use sheet piling was an act that caused the removal of support for the Rayman Land for the purposes

of s 177 of the Conveyancing Act (and there was a breach by both Ms Brown and Scopeview in that regard but this adds nothing in circumstances where there was a breach of the common law and s 5B duty of care). (3) The failure to notify Ms Rayman of the plans/notifications and commencement of excavation works until 24 April 2020 was an omission, not an act, and hence not a breach of s 177 of the Conveyancing Act. (4) Each of Meso, VMS, IDC and EIA is a concurrent wrongdoer (for the purposes of the proportionate liability regime invoked by Scopeview but not Ms Brown). Scopeview’s proportionate liability for the damage is assessed at 15%. (5) Finally, Ms Rayman is entitled to damages for the diminution in value of the Rayman Land ($1.15 million) and some but not all of the cosmetic repair costs. (6) Ms Brown’s liability is quantified as $1,164,782.20 plus interest and Scopeview’s liability as $174,717.33 plus interest. The issue of costs is to be determined, after brief written submissions, on the papers.

INDEX

JUDGMENT Introduction Claims Issues Chronology of Events Purchase and renovation of the Rayman Land Purchase of the Brown Land and plans for renovation Martens Report Development Application Development Consent Modified Development Consent Preparation of initial piling and shoring plans Dilapidation Report Engagement of Scopeview Building Contract Appointment of PCA Issue of Staged Construction Certificate Reference by Mr Brown to contribution levies Meso Engagement of IDC and preparation of the temporary shoring plan Meso Works Summary Document Confirmation from Scopeview as to Meso’s proposal Building Certifier’s proposal Design Certificate for temporary shoring First Scopeview invoice Requirement for notification of adjoining neighbours Construction certificate for demolition Enquiry from the other adjoining neighbour (Mr Stockley) 2 March 2020 notification to Mr Stockley Disputed 2 March 2020 conversation Demolition complete Mr Zimmerman’s enquiry Mr Weinberg’s enquiry of Council Survey Meso’s communication with Martens 9 April 2020 email from Mr Brown to Mr Quinton Amendments by Mr Zimmerman Engagement of EIA 14 April 2020 email from Mr Brown to Mr Quinton Invoice for procurement of sheet piles Revised certificate of structural compliance for works other than shoring EIA investigation of site on 16 April 2020 Enquiry of Waverley Council VMS IDC Revision B construction

drawings – 16 April 2020 IDC Revision C construction drawings – 20 April 2020 VMS IDC Report EIA geotechnical report New PCA and application for a Construction Certificate IDC – Revision C drawings Notice of Commencement of Building Works Issue of Construction Certificate Response to Mr Weinberg from Waverley Council VMS monitor settings Provision of reports to Ms Rayman Sheet piling works Final vibration report Excavation Onsite meeting – 11 June 2020 Excavation Certificate Installation of cross-bracing June 2020 Dilapidation Report Removal of bracing Ashby Doble’s opinion Riverwall Constructions quote Rothshire Report and investigations Sale of the Rayman Land Lay evidence Ms Rayman Mr Rayman Mr Weinberg Mr Brown Ms Brown Mr Doueihi Application to reopen hearing and adduce further evidence Affidavit evidence filed on the reopening application (and reopened hearing if the application were successful) Affidavit evidence filed for Ms Brown in chief Mr Rod Mr Brown Affidavit evidence filed by Scopeview on reopening application/hearing Mr Doueihi Mr Sara Reply affidavits on reopening Grant of leave to reopen on limited issue Reasons Cross-examination on reopened hearing Mr Rod Mr Brown Mr Doueihi Mr Sara Objection to evidence of Mr Rod on basis that it was improperly obtained Relevant principles Application to the present case Rule 22.4 Is Mr Doueihi a “party”? Is there a timing

issue? Rule 25.1 Rule 33.1 Consideration of objection Does a breach of the conduct rules amount to improperly obtained evidence? Matters to consider under s 138(3) Conclusion as to Mr Rod’s evidence Credit findings ● Ms Rayman ● Mr Rayman ● Mr Weinberg ● Ms Brown ● Mr Sara Contentious witnesses ● Mr Brown ● Mr Doueihi ● Mr Rod Factual Findings ● Mr Brown’s conduct is to be imputed to Ms Brown ● Was Mr Brown the “driving force” behind the project? ● Mr Brown’s understanding of the Martens Report ● Mr Brown read and understood the Development Consent ● Mr Brown read and understood the Modified Development Consent and, in particular, Conditions 13 and 14 (and the importance thereof) ● Mr Brown read and understood from the 2019 Dilapidation Report that a contiguous pier shoring system had been designed ● Importance of price in the decision to enter into the Contract ● When and who made the decision to change to sheet piling Events of 1 and 2 March 2020 ● Findings to be drawn from 1 March 2020 email by Mr Brown to Mr Doueihi about Stockley enquiry ● Findings as to disputed 2 March 2020 conversation between Mr Brown and Mr Doueihi Was there a telephone conversation between Mr Brown and Mr Doueihi on 2 March 2020? What was said in the 2 March 2020 conversation ● Knowledge of Mr Brown as at 22 April 2020 that Conditions 13 and 14 had not been satisfied ● Acceptance by Mr Doueihi of

responsibility to inform the neighbours ● Steps taken by Mr Brown to notify neighbours ● Finding sought as to prompt compliance with the direction by Mr Doueihi ● What Ms Rayman would have done had she been given notice Expert evidence Valuation evidence Ms Rayman’s submissions as to valuation evidence Ms Brown’s submissions as to valuation evidence Scopeview’s submissions as to valuation evidence Determination Structural Engineering experts Background Objection to opinions expressed by experts as to causation Issue 1: What damage has the property suffered as a result of the works? Issue 2: What was the cause (or what were the causes) of the damage? Issue 3: To what extent do you consider the damage was caused by the acts or omissions of Scopeview, Meso, VMS, IDC, EIA or any other person or entity Issue 4: Did any of Scopeview, Meso, EIA, VMS, IDC or other persons or entities responsible for causing the damage fail to follow any relevant Australian or international standards or guidelines or fail to follow competent professional practice? Item 5: Do you consider any of the damage pre-dated the works? If so, what was the nature and extent of any pre-existing damage? Concurrent evidence – building practice Conclusions as to structural engineering experts Geotechnical Engineer Summary Issue 1 – Alleged breaches of common law duty of care, s 5B Civil Liability Act. Risk of harm,

foreseeability of risk and significance of risk Conclusion as to these issues Breach Ms Rayman’s submissions Claim against Ms Brown Claim against Scopeview Ms Brown’s submissions Scopeview’s submissions Determination as to breach of common law / s 5B duty of care Issue 2 – Alleged breach of duty of care arising pursuant to s 177 Conveyancing Act Non-delegable duty Determination as to nature of duty Claim against Ms Brown Claim against Scopeview Ms Brown’s submissions Scopeview’s submissions Determination Issue 3 – alleged concurrent wrongdoers Meso

VMS

IDC EIA Scopeview’s submissions Ms Rayman’s submissions Determination Issue 4 – Causation Ms Rayman’s submissions Ms Brown’s submissions Determination Issue 5 – Proportionate Liability Ms Rayman’s submissions Scopeview’s submissions Determination Issue 6 – Damages Ms Rayman’s submissions Ms Brown’s submissions Scopeview’s submissions Determination Conclusion Orders

JUDGMENT WARD P: This dispute (referred to in submissions as “every homeowner’s worst nightmare”) concerns damage occasioned to a property then owned by the plaintiff (Ms Elisa Rayman) on Gilgandra Road, North Bondi (the Rayman Land) by excavation works carried out in April 2020 in the course of the redevelopment of an adjoining property (the Brown Land) which is owned by the first defendant (Ms Janet Brown). I note at the outset that Ms Brown, the owner of the Brown Land, effectively left it to her husband, Mr Jonathan Brown, to manage the development project on her behalf. On her own account, Ms Brown reposed trust and confidence in her husband to carry out that task for her and gave evidence (see below) that all emails written by Mr Brown in relation to the matter were done on her instruction and/or in consultation with her. For that reason, Ms Rayman submits, and I accept, that the conduct of Mr Brown in relation to the matter can readily be imputed to Ms Brown. In the course of written and oral submissions there were occasions when reference was made to Mr Brown seemingly as if he were the first defendant (as opposed to his wife being the actual party) and, similarly, there was some (though less) conflation of the position of Ms Rayman (the owner of the Rayman Land and in that capacity the plaintiff) and her husband, Mr Avron Rayman, on whom (together with her father, Mr

Errol Weinberg) Ms Rayman relied in respect of events relating to the redevelopment of the Brown Land. In these reasons when referring to the plaintiff or first defendant, in that capacity, I have referred to Ms Rayman and Ms Brown, respectively, even though this may not be the way they were referred to in submissions. Introduction The redevelopment of the Brown Land comprised demolition of the then existing dwelling on the land and the construction thereon of a new three-storey dwelling with an inground swimming pool in the north-western corner of the site. Excavation works commenced on the Brown Land in April 2020 and, as will be explained in more detail below, a sheet pile shoring system was used as the temporary shoring system for the excavation. This involved the construction of retaining walls using interlocking steel sheet piles driven into the ground to form a continuous wall. This was contrary to the recommendation of the initial geotechnical engineer involved in the project that sheet piling not be used due to the risk of adverse vibrations causing harm to adjoining properties. That risk (clearly foreseeable and in fact both foreseen and the subject of a clear warning) unfortunately came to bear, causing damage to Ms Rayman’s home (the Rayman Home). In essence, Ms Rayman’s complaint is that, in the course of engaging in the excavation works, the builder, Scopeview

Projects Pty Ltd (Scopeview) removed support provided by the Brown Land to the Rayman Land, resulting in significant structural and other damage to her property. Ms Rayman contends, and the respective expert structural and geotechnical engineers agree, that the primary cause of the damage was the occurrence of excessive vibrations during the construction of the sheet pile walls. That damage was immediate. There was some further damage, or exacerbation of the initial damage, over time. The structural engineer retained by Ms Rayman (Mr Anthony Dockrill) attributed this to the sheet piling wall having been constructed too close to the boundary of the Rayman Land and at too great a distance from the boundary wall of the home to be built on the Brown Land. The sole expert geotechnical engineer who gave evidence (Mr Patrick Wong), who was called by Scopeview, did not attach any significance to the distance of the relevant sheet pile wall from the boundary to the Rayman Land or from the boundary wall of the new property on the Brown Land. Rather, he attributed the subsequent damage to the delay in bracing of the sheet piles while they were in cantilever (upright) position, which caused deflection or lateral movement and expressed the opinion that the thinness of the particular type of sheet piles used for the temporary shoring contributed to the deflection which had occurred. In

September 2022, Ms Rayman commenced proceedings in the Technology and Construction List in the Equity Division of this Court, claiming damages against Ms Brown and against Scopeview, for breach of s 5B of the Civil Liability Act 2002 (NSW) (Civil Liability Act) and breach of s 177 of the Conveyancing Act 1919 (NSW) (Conveyancing Act). Subsequently, a number of other entities were joined to the proceedings: Meso Solutions Pty Ltd (Meso), the third defendant, a shoring contractor that was engaged by Scopeview (see the first affidavit sworn 23 August 2023 by Scopeview’s director, Mr Doueihi at [19]-[21]), to design and install a temporary shoring system at the site of the excavation works; VMS Australia Pty Ltd (VMS), the fourth defendant, a specialist vibration management consultancy that was engaged by Meso (Agreed Fact [5]) to carry out vibration monitoring during the installation of temporary sheet piling and during the excavation (and, Scopeview alleged, to set vibration thresholds); In-ground Design & Consultants Pty Ltd (IDC), the fifth defendant, a design consultancy now in liquidation that was engaged by Meso to provide advice concerning the design of (or to design) a temporary shoring system at the Brown Land (Agreed Fact [6]); and El Australia Pty Ltd (EIA), the sixth defendant, a geotechnical engineering consultancy engaged by Meso to carry out geotechnical

investigation and to provide an opinion on the suitability of the use of sheet piling for the proposed development (Agreed Fact [7]). I interpose to note that EIA’s involvement was well after the decision had been made by Mr Doueihi, and endorsed by Mr Brown, to use a sheet piling shoring system and, as I explain in due course, was seemingly to address the difficulty posed by the fact that the approved structural plans the subject of the initial development consent for the project identified a contiguous shoring system not a sheet piling shoring system. By the time of the hearing, Ms Rayman had settled her claims against each of Meso, VMS and EIA, leaving Ms Brown and Scopeview as the only active defendants in the proceeding. (IDC was never served with the initial process and played no part in the proceedings.) Nevertheless, the issue as to whether, and, if so, to what extent, the damage claimed to the Rayman Land was caused by the concurrent wrongdoing of the third to sixth defendants remained in dispute as between Ms Rayman and Scopeview. Ms Brown filed two cross-claims in the proceedings. The first cross-claim, filed in December 2023, was brought against Scopeview, alleging breach of contract by reason of the alleged failure of Scopeview to take reasonable care. Scopeview’s response to that cross-claim pleaded concurrent wrongdoing on the part of each of Meso, VMS, IDC and

EIA. The second cross-claim, filed in March 2024, was brought against Ms Rayman, claiming compensation for an encroachment on the Brown Land of a retaining wall between the respective properties and damages, being the cost of the removal, rebuild and fence replacement of the said retaining wall. The encroachment claim had nothing to do with the construction works the subject of Ms Rayman’s claim. Ms Rayman entered into a contract for the sale of the Rayman Land in October 2024, completing the sale in February 2025. As a consequence, Ms Rayman amended her claim for damages to claim the diminution in value of the Rayman Land (as opposed to a claim for rectification costs). Noting that there is no pleaded failure to mitigate raised by any party, Ms Rayman seeks those damages in full in the form of special (rather than general) damages. Shortly prior to the hearing, Ms Brown sought leave to amend her cross-claim against Ms Rayman in order to abandon the encroachment compensation/damages claim (which Ms Brown conceded was no longer sustainable following the sale of the Rayman Land – see the affidavit affirmed on 20 October 2025 by Ms Brown’s then solicitor, Mr David Rod, at [12]) and to bring a new claim based on an alleged breach of an oral agreement reached at a meeting on 17 September 2021 for Ms Rayman to pay a half share of the costs of the removal and reinstatement of the

retaining wall the subject of the encroachment claim (the amount sought to be recovered being $69,853.56). The proposed amendment to the cross-claim against Ms Rayman (confusingly referred to by counsel for Ms Brown as the first cross-claim – see 17/10/25; T 12) was first foreshadowed to the Court on 17 October 2025 and was then the subject of a notice of motion filed by Ms Brown on 21 October 2025, six days before the hearing was listed to commence. Ms Brown sought to rely on two affidavits in relation to that newly raised issue – an affidavit affirmed on 19 October 2025 by Mr Brown and an affidavit affirmed on 20 October 2025 by Mr Rod. I deferred ruling on the motion when it came before me on 22 October 2025 in order to permit Ms Rayman time to make enquiries as to what additional evidence relevant to the issue might be obtained prior to the hearing (which, as adverted to above, was listed to commence on 27 October 2025) (22/10/25; T 30.35). Meanwhile, by email sent on 18 October 2025 at 2:33pm, Mr Rod advised the solicitor for Ms Rayman (Mr Ziv Ben-Arie) that Ms Brown abandoned the causes of action based on the Encroachment of Buildings Act 1922 (NSW) and Dividing Fences Act 1991 (NSW). When the hearing commenced on 27 October 2025, I was advised that Ms Brown no longer pressed the application to amend her cross-claim against Ms Rayman and, indeed, no longer pressed her

cross-claim against Ms Rayman at all (see 27/10/25; T 1.37). The notice of motion dated 21 October 2025 was therefore dismissed and the question of costs was reserved. As to the cross-claim by Ms Brown against Scopeview, that was settled between those parties. On the first day of the hearing, short minutes of order were handed up providing for the dismissal of that cross-claim with no order as to costs (with the intent that Ms Brown and Scopeview respectively bear her or its own costs of the proceedings). Accordingly, by the commencement of the hearing, the only claims to be determined were those raised in Ms Rayman’s amended commercial list statement and the respective defences thereto of Ms Brown and Scopeview. The issues raised by those pleadings are summarised in due course (see [36]ff below). The matter was heard over five days and judgment was reserved on 31 October 2025. Shortly after judgment was reserved, by letter dated 12 December 2025 addressed to my associate, Mr Rod foreshadowed an application to reopen the hearing based on the “real risk” identified by Mr Rod of the Court’s pending judgment being based on evidence described by him as being inaccurate, incorrect and potentially misleading or materially incomplete, and his submission that it was in the interests of justice so to do. A directions hearing was sought for the purpose of determining a timetable for Ms

Brown to file a notice of motion seeking leave to: apply to have the matter reopened for further evidence and, if so, in respect of what issues; the procedure and timetable for receiving the “corrected evidence”; and any further directions considered appropriate in that regard. The matter was listed for directions in the first week of the new law term on 2 February 2026. Notwithstanding that Ms Brown’s solicitor had foreshadowed on 12 December 2025 an intention to seek leave to reopen the hearing, no notice of motion or affidavit evidence for that purpose had been prepared by the time the matter came before me for directions. I was informed that this was due to the serious ill-health of Ms Brown’s counsel (see 02/02/26; T 1.43). Directions were made on that occasion for the filing by Ms Brown of a notice of motion, affidavit(s) in support and submissions by 10 February 2026. Further directions were made on 12 February 2026 for any evidence and submissions from the respondents to the motion, and reply evidence, if any, from Ms Brown. On that date, the motion was listed for hearing on 20 March 2026. The timetable for filing of evidence/submissions was amended on 2 March 2026 but the motion remained listed for hearing on 20 March 2026. On 17 March 2026, a letter was sent to my associate by another solicitor, Ms Jane Button, advising that she was “newly” instructed to act for Ms

Brown in the proceedings and seeking leave for orders for a change of the timetable in support of an application for directions and for time to prepare and file further evidence. In her letter, Ms Button advised that she had a “rudimentary” knowledge of the issues in the case and had assisted Mr Rod in the trial in relation to the collation of the court book. Ms Button advised that Mr Rod had informed her that he was unable to continue acting for Ms Brown as he had become a witness in the matter. (With respect, that should have been obvious to Mr Rod from at least 12 December 2025, if not before, when his very own letter contemplated seeking leave to adduce evidence from himself if the hearing were to be reopened but if there were any doubt about this it must have vanished when Mr Rod realised that Mr Doueihi was disputing Mr Rod’s account of the telephone conversation on 18 November 2025 that had apparently precipitated the application.) Ms Button’s letter referred to the need for Mr Brown and Mr Rod to reply to the evidence that had by then been served from Mr Doueihi and Mr Maroun Sara (an employee of Scopeview), provision for which had been made in the extant timetable but not complied with. Ms Button stated that the evidence required an area of specialisation (not identified) that needed to be dealt with and was beyond her expertise and that of Mr Luitingh, counsel for Ms

Brown. Ms Button stated that she had briefed (unnamed) specialist counsel on this (unidentified) aspect of the matter and could not file any reply evidence until she had received advice. Ms Button proposed a revised timetable that contemplated the motion being set down for hearing “any time after 20 April 2026”. Ms Button also stated that the material (it is not quite clear whether that was a reference to the material proposed to be prepared in reply or to the material already in evidence as to the reopening or perhaps the hearing as a whole) was voluminous, though she conceded that “this is a discreet issue”. The contents of that letter were replicated in an affidavit sworn by Ms Button on 18 March 2026 (which was annexed to an affidavit affirmed by Mr Ben-Arie, that was read on 20 March 2026). On 20 March 2026, consistent with Ms Button’s letter, Mr Luitingh made an oral application for the hearing of the motion to be adjourned for a month. I dismissed that application. For completeness, I here record that I dismissed the adjournment application after balancing the factors identified in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (albeit there in the context of an application for leave to amend), including any explanation for the delay in making the application and the prejudice to the relevant parties of granting or

disallowing the application. In particular, I placed weight on the following matters: that it must have been apparent to Mr Rod from at least 12 December 2025 that there was a difficulty in him remaining as solicitor on the record for Ms Brown since it was contemplated that he would be a witness on the reopening application (and further hearing if that application were successful); Mr Luitingh himself informed me from the Bar table (20/03/26; T 1.46) that he had said “for some time” that Mr Rod could not continue to act in the matter; there was no explanation as to why Mr Rod had not ceased to act in the matter at an earlier time (but instead had obviously continued to act in the preparation of the initial affidavit evidence for the reopening application); Ms Button had been involved in the matter in at least some capacity at the hearing; Mr Luitingh, who had conducted Ms Brown’s case at the hearing, continued to be retained and was appearing on the hearing of the motion; and what was listed for hearing on 20 March 2026 was only the application to reopen (not the reopened hearing if that application were successful). I was unable to place weight on the possibility of some mystery evidence emerging, to which only cryptic reference had been made. Further, such an adjournment was to my mind inconsistent with the mandate for the just, quick and cheap resolution of the real issues

in dispute. The hearing of the motion then proceeded. Read on the hearing of the notice of motion were: an affidavit affirmed on 9 February 2026 by Mr Rod; an affidavit affirmed on 9 February 2026 by Mr Brown; an affidavit sworn on 26 February 2026 by Mr Doueihi; an affidavit sworn on 25 February 2026 by Mr Sara; an affidavit affirmed on 18 March 2026 by Mr Rod and an affidavit affirmed on 19 March 2026 by Mr Brown. The mysterious evidence in reply that was said to have required advice from specialist counsel did not ever materialise. At the conclusion of the hearing of the notice of motion, I granted leave for a limited reopening of the hearing, for reasons to be provided in due course (those reasons appear at [457]ff below) and for the further evidence to be adduced but only in relation to the issue on which leave was granted. That issue (and the reopened hearing) was confined to the dispute between Ms Brown and Scopeview as to the content of the telephone conversation on 18 November 2025 between Mr Brown and, inter alios, Mr Doueihi as to the latter’s recollection (if any) of a conversation between Mr Brown and Mr Doueihi on 2 March 2020 about which evidence had been given at the hearing. There was then a further full day’s hearing on 17 April 2026. Hence, the unfortunate delay in the final disposition of the proceedings. In summary, I have concluded the following. Ms Rayman

has established her claims in negligence against each of Ms Brown and Scopeview in relation to the decision to use sheet piling (and in the case of Scopeview in the carrying out of the excavation works for the temporary shoring using sheet piles) and Ms Brown’s contributory negligence claim against Ms Rayman fails. The duty not to remove support for the Rayman Land is not a non-delegable duty. The decision to use sheet piling was an act that caused the removal of support for the Rayman Land for the purposes of s 177 of the Conveyancing Act (and there was a breach by both Ms Brown and Scopeview in that regard but it adds nothing in circumstances where I have found that there was a breach of the common law and s 5B duty of care). The failure to notify Ms Rayman of the plans/notifications and commencement of excavation works until 24 April 2020 was an omission, not an act, and hence not a breach of s 177 of the Conveyancing Act. Each of Meso, IDC, VMS and EIA is a concurrent wrongdoer (for the purposes of the proportionate liability regime invoked by Scopeview but not Ms Brown). Scopeview’s proportionate liability for the damage is assessed at 15%. Finally, Ms Rayman is entitled to damages for the diminution in value of the Rayman Land (which I have found is $1.15 million, accepting the opinion of Mr Jason Field (the valuer called as an expert witness by Ms Rayman)) and some of

the cosmetic repair costs (but not all of those costs in circumstances where I am not comfortably persuaded that all of those cosmetic repairs were required as a result of the excavation work). I have quantified Ms Brown’s liability as $1,164,782.20 plus interest and Scopeview’s liability as $174,717.33 plus interest. The issue of costs is to be determined, after brief written submissions, on the papers. Claims By her Further Amended Technology and Construction List Statement filed on 9 April 2025, Ms Rayman alleges that each of Ms Brown and Scopeview breached a duty of care owed to her pursuant to s 5B of the Civil Liability Act and/or s 177(2) of the Conveyancing Act and/or breach of a statutory duty arising from the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Environment Planning and Assessment Regulation 2000 (NSW) (EPA Regulations) and/or at common law by failing to take reasonable precautions to minimise or reduce the risk of damage to the Rayman Land and/or the Rayman Home (the home built upon the land) ([C.112]; [C.116]). At the hearing, the allegation of breach of s 4.2 of the EPA Act was not pressed (see 31/10/25; T 410-411; T 467.25). Further and/or alternative claims, following the identification of alleged concurrent tortfeasors in Scopeview’s Amended List Response filed on 7 November 2023, are pleaded against each of the third to sixth

defendants (see from [C.144] of the Further Amended Technology and Construction List Statement). As adverted to above, Scopeview contended in its List Response that such liability as it might have should be apportioned (pursuant to s 34 of the Civil Liability Act) on account of the involvement of the third to sixth defendants. Ms Brown, in her defence, raised a claim of contributory negligence against Ms Rayman based on an allegation that the Rayman Home (and, in particular, the footings) was not in good condition, which allegedly contributed to Ms Rayman’s loss and gave rise to a positive duty on Ms Rayman’s part to advise Ms Brown of those matters ([C37]). Ms Brown also pleaded a contention of betterment ([C216]), namely that, if it were to be found that Ms Rayman had suffered loss caused or contributed to by Ms Brown and that Ms Rayman was entitled to a claim for restitution, then there should be an account given for betterment as a deduction from Ms Rayman’s loss, in that the restitution order would result in an improvement of the Rayman Home compared to its condition immediately prior to 27 April 2020, a benefit to Ms Rayman in excess of the cost of restitution, and an improvement in her financial position. Ms Brown did not invoke the proportionate liability regime (cf Scopeview) and confirmed this in her oral submissions. Nor did Ms Brown plead any failure to mitigate

(and in oral submissions she positively disavowed any such case). I consider in more detail the pleaded claims and defences thereto in due course. Issues The issues arising on the commercial list pleadings, as pressed at the hearing, may be summarised as follows. First, whether Ms Brown and/or Scopeview breached a duty of care owed to Ms Rayman pursuant to s 5B of the Civil Liability Act and/or at common law by failing to take reasonable precautions to minimise or reduce the risk of damage to the Rayman Land and/or Rayman Home. In the case of each of Ms Brown and Scopeview, the issue is whether she or it failed to exercise reasonable care in carrying out the construction works by: failure to implement the recommendations of the Martens Report (see [50] below); failure to implement the recommendations of the EIA Report (see [169] below); failure to comply with the conditions of the Modified Development Consent; failure to avoid causing vibration damage (during the installation of sheet pile shoring between 28 April and 2 May 2020); failure to maintain lateral support for the Rayman Land; and removal, reduction or destabilisation of the lateral support for the Rayman Land (see [C.112]; [C.116] of the further amended commercial list statement). Second, whether Ms Brown and/or Scopeview failed to exercise reasonable care in doing something in relation to the Rayman Land (s 177 of

the Conveyancing Act) by reason of one or more of the breaches alleged at [C.112]; [C.116]. This issue includes the question whether s 177 imposes a non-delegable duty. Third, for the purposes of the claim against Scopeview (it being the only defendant to invoke proportionate liability), whether each of Meso, VMS, IDC and EIA was a concurrent wrongdoer. Fourth, causation, i.e., whether damage was caused to the Rayman Land as a result of: one or more of the alleged breaches of Ms Brown and/or Scopeview (and, in the concurrent wrongdoing case by Scopeview, of Meso, VMS, IDC and/or EIA). Fifth, related to the above, the issue of proportionate liability (the extent to which any of the concurrent wrongdoers contributed to Ms Rayman’s loss). Sixth, damages: the claim for diminution in value of the Rayman Land and for consequential losses (costs associated with the ultimate sale in 2024, completed in 2025, of the property). Chronology of Events Purchase and renovation of the Rayman Land The Rayman Land was purchased by Ms Rayman in 2009 (Agreed Fact [12]) and the Rayman Home was renovated in 2010/2011 (Agreed Fact [13]). The scope of the renovation is not entirely clear. In a 2019 Dilapidation Report (prepared by the structural engineer retained by Ms Brown in relation to her redevelopment, Mr Martin Zimmerman) (see below) reference is made to the rebuild including the removal of

walls and the addition of a new first floor brick veneer storey as well as a double garage to the street front. In Ms Brown’s submissions, reference is made to the renovation as including renovations in the basement and to the basement support. Mr Zimmerman apparently had some involvement in the renovation of the Rayman Home (as the structural engineer involved in certifying alterations and additions to the property in 2010) (see the proposition put to Ms Rayman in cross-examination by counsel for Ms Brown – at 28/10/25; T 88). Mr Rayman gave evidence that he met Mr Zimmerman when the Rayman Home was renovated (28/10/25; T 124). It is clear from the 2019 Dilapidation Report that Mr Zimmerman knew of the existence of the basement (although there is no specific description of its condition). It seems inherently unlikely that Mr Zimmerman (who was clearly cautious or conservative in his approach to the question of the temporary shoring system to be used for the Brown Land excavation works) would have approved basement works to the Rayman Home that displayed the features criticised by the structural engineers in this case (and which form much of the basis of Ms Brown’s contributory negligence claim). Ms Rayman’s evidence is that the renovation work was carried out by licensed contractors under the supervision of the builder engaged by the Raymans in accordance with approved plans

(Ms Rayman’s affidavit affirmed on 30 January 2023 at [25]). However, it is not clear precisely what involvement Mr Zimmerman had, if any, in the actual carrying out of the renovation works and there is insufficient evidence of those 2010/2011 renovations to make any finding in this regard. The significance that Ms Brown attaches to the renovation of the Rayman Home, as adverted to above, relates to her submission that Ms Rayman at all material times knew that the footings to support two floors above the sub-floor (storage room) or basement were “non-compliant, inadequate, defective and substandard”, such that Ms Brown contends that Ms Rayman had a duty to act reasonably and to inform her of the vulnerable state of the footings so that she (Ms Brown) could take measures to protect the Rayman Home. (The irony of this submission is that Ms Brown well knew, through her husband, what was recommended to ensure the integrity of adjoining properties – i.e., to use a contiguous piling system – and chose not to follow that recommendation.) There is no evidence that the state of the basement footings was the cause of the damage sustained during the vibrations that occurred during sheet piling (as opposed to the primary cause being the vibrations themselves, although the structural engineer retained by Ms Brown, Mr Mark Manning, considered that the state of the footings may have

exacerbated the damage (30/10/25; T 345)). Nor is there any evidence that Ms Rayman actually knew that the footings were defective, although Mr Manning considered that this would have been obvious to a lay person (30/10/25; T 344). Purchase of the Brown Land and plans for renovation On or about 5 November 2017, Ms Brown purchased the Brown Land (Agreed Fact [14]). By way of physical context, the Rayman Land is to the east of the Brown Land. To the west of the Brown Land is the land of the Browns’ other adjoining neighbour (Mr Stockley). These three properties front Gilgandra Road to the south. Gilgandra Road is a cul-de-sac. Shortly thereafter, on 13 December 2017, Ms Brown engaged a firm of architects, Quinton Margalit Smuskowitz Architects Pty Ltd (known as MASQ Architecture) (MASQ), to assist in the preparation of plans for the redevelopment of the Brown Land and to obtain development approval. Mr Ted Quinton was the point of contact at MASQ in relation to the proposed redevelopment. Martens Report MASQ commissioned a Preliminary Geotechnical Assessment by Martens Consulting Engineers (Martens Report). The Martens Report, dated 15 June 2018, prepared by Mr Kenneth Burgess, principal engineer at Martens, was submitted to Waverley Council with the application for development consent (see below). For completeness, I note that, although the construction certificate ultimately

issued in relation to this development referred to a second Martens Report dated 17 October 2019, the only Martens Report in evidence was one dated 15 June 2018 and the expert structural engineer called by Scopeview (Mr Leigh Appleyard) confirmed that he had only ever been provided with one Martens Report (30/10/25; T 347.26). The Martens Report relied on results from three bore hole samples using hand augers which went no further than 2.15 m at the front of the property, 2.9 m in the middle of the property and 3.2 m at the rear of the property. In section 3.4 of the Martens Report, headed “Geotechnical Recommendations”, the first item dealt with is “Excavation and support”. The Martens Report stated that excavations “must be temporarily and permanently battered back / shored / retained to maintain excavation stability and limit potential adverse impacts on neighbouring properties / structures or other infrastructure”. The Martens Report stated that, for shoring below ground water level and/or inside the “zone of influence” of adjoining properties, cantilevered or anchored secant concrete pile walls may be adopted. The Martens Report recommended that an experienced piling contractor should be engaged to ensure good verticality of piles to limit gaps between piles and identified that care was required to limit structural distress to neighbouring structures. Significantly, the

Martens Report specifically stated that the use of driven piles and sheet piles was not recommended “due to adverse vibration impacts on neighbouring structures / infrastructure”. The Martens Report was prescient in its recommendation against the use of sheet piling (and its recommendation for low vibration limits – see below) since the primary cause of damage to the Rayman Home, as noted above, was vibration caused by the installation of the sheet piling. As to vibration, the Martens Report stated that care was required to limit structural distress and settlement of very loose and loose foundation material. It recommended that an excavator should be limited to 8 tonnes and that ground vibration peak particle limit velocity (PPV) be limited to 3 mm/s. Pausing here, PPV refers to the movement within the ground of molecular particles. Effectively, the higher the number or frequency of vibrations travelling through the ground, the more likely it is that damage will be caused by the vibrations (cf the contrary opinion asserted by Scopeview’s director, Mr Doueihi, in the course of his evidence – 29/10/25; T 250; see [362] below). The Martens Report noted that underpinning of neighbouring footings “may” be required prior to commencement of site works. The Martens Report also noted that the Brown Land was in an area of silty and sandy soil, classifying the site as Class “P” due to the

presence of “very loose and loose sands” up to approximately 2.0 m BGL (Below Ground Level). (Thus, Ms Rayman says that both Ms Brown and Scopeview, to each of whom the Martens Report was provided, were on notice that the sub-soil of the Rayman Land was susceptible to movement and/or subsidence if lateral support was removed. There can be no doubt about this.) Development Application On or about 18 June 2018, Ms Brown submitted to Waverley Council a Development Application to demolish and build a new house on the Brown Land (Agreed Fact [16]). As adverted to above, the development involved demolition of the existing house and excavation to a depth of approximately 3m below ground level to construct a new three-storey house and a new in-ground pool in the north-western corner of the site. The Martens Report was provided to Waverley Council with the Development Application. Development Consent On 27 February 2019, Waverley Council issued development consent for the development (the Development Consent). The Development Consent imposed specific requirements (pursuant to the EPA Act and the Local Government Act 1993 (NSW) (LGA)), requiring Ms Brown to take certain steps in the demolition and building process in order to afford protection from damage to any adjoining land and/or structures. In particular, the conditions imposed by the Development Consent included the

following. Condition 3 provided that excavation was to be limited to that shown on the approved plans. Significantly, for the present cases, Conditions 13 and 14 provided as follows: 13. GEOTECHNICAL ENGINEERS REPORT A geotechnical report, regarding the stability of the subject site and stating that damage should not occur to any adjoining premises as a result of the proposed bulk excavation, driven type piles and shoring works, is to be submitted to the Principal Certifying Authority, Council and the owners of adjoining premises. The report is to be submitted prior to the issue of a Construction Certificate and commencement of any such works on the site.

14. DETAILS OF BULK EXCAVATION, SHORING OR PILE CONSTRUCTION A report shall be prepared by a suitably qualified and practicing Structural Engineer detailing the proposed methods of bulk excavation, shoring or pile construction, including details of vibration emissions and possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works. The Report shall be submitted to the Principal Certifying Authority, Council and the owners of adjoining properties prior to the issue of a Construction Certificate. Any practices or procedures specified in the Structural Engineer’s report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate. Condition 25 required that all excavations and backfilling be executed safely and in accordance with the appropriate professional standards and be properly guarded and protected to prevent them from being dangerous to life or property. Condition 26 provided that, if an excavation extended below the level of the footings of a building on an adjoining allotment of land (as was here the case in relation to the Rayman Land), then the person causing the excavation to be made (here, Ms Brown) must, at that person’s own expense, preserve and

protect the building from damage and, if necessary, underpin and support the building in an approved manner and must provide at least seven days’ notice to the owner of the adjoining allotment before excavating below the level of the base of the footing of a building on an adjoining allotment of land of the intention to do so. Again of significance to the present case, Condition 30 required that dilapidation reports be prepared by a practising professional engineer and be provided to Council and the Principal Certifying Authority with or prior to the Notice of Commencement and prior to the commencement of any development work; and that the adjoining building owner(s) must be given a copy of the dilapidation report for their building(s) prior to commencement of any work. Modified Development Consent On 12 April 2019, Ms Brown lodged a modified development application, which included an additional basement area for storage predominantly below ground level. On 25 September 2019, a modified development consent was issued by Waverley Council (the Modified Development Consent). There was no change to any of the conditions referred to above. The modification permitted more excavation towards the front of the Brown Land. Preparation of initial piling and shoring plans On 14 June 2019, Mr Zimmerman (as noted above, a structural engineer engaged by Ms Brown) prepared a piling and shoring

plan (the Piling Design Rev A Plans). On 13 November 2019, Mr Zimmerman prepared a revised piling and shoring plan (the Piling Design Rev B Plans). The notes to these initial shoring designs provided that “where necessary the contractor is to engage a structural engineer to design and certify the temporary works”. Each of the piling designs prepared by Mr Zimmerman specified that a contiguous pile wall be installed alongside the common boundary of the Brown Land with the Rayman Land. I note the explanation of this method at the hearing was that such a wall is constructed by drilling successive cast-in-situ concrete piles with small gaps between them. The process involves: drilling each pile using a rig, installing steel reinforcement cages, and pouring concrete. Once “cured”, excavation proceeds, and if needed, the wall is sealed with methods such as shotcreting or grouting and finished with a capping beam to help distribute loads. It was described in oral submissions as a “corkscrew type of process” (27/10/25; T 8). Dilapidation Report On 15 November 2019, a dilapidation report was issued by Mr Zimmerman’s firm (M Zimmerman & Associates Pty Ltd) recording the condition of Ms Rayman’s property (the 2019 Dilapidation Report). (Mr Zimmerman also prepared a dilapidation report in relation to the other adjoining neighbour’s land – the Stockley Land.) The 2019 Dilapidation Report

attached 61 photographs of the Rayman Home. There were no photographs of the basement or the piers supporting the house. Relevantly, the 2019 Dilapidation Report stated that the Rayman Home was internally in “a very good condition, showing some non structural cracking”; and that some external horizontal cracking could be observed (this was along the common boundary with the Brown Land – see photographs taken by VMS on 29 April 2020). The report suggested that it was likely that the external cracking related to the transition “between old and new” and referred to the potential that there was some weakness in the sandstone base. The report noted that the construction on the Brown Land required substantial excavation and stated that the excavation itself required a fair amount of expertise and consideration for the neighbourhood. The report noted that, to accommodate the integrity of the Rayman Home, a shoring system had been devised consisting of contiguous piering and strutting (i.e., as opposed to a sheet piling system). (I note that the reference in the report is to “contiguous piering”, not contiguous “piling”, but in the course of submissions there was reference to the latter. I have used those terms interchangeably as I do not perceive there to be a difference between the two.) As noted above, the 2019 Dilapidation Report recorded the existence of a basement but made no

express mention of its condition. The 2019 Dilapidation Report confirmed that Mr Zimmerman was satisfied that the work shown on the structural drawings could be carried out without short or long term impact on the Rayman Home. However, Mr Zimmerman emphasised that it was important that the builder carry out the work in a competent manner and take all the skill and care necessary to carry out the work in a safe manner; and adverted to the need for correct interpretation of specifications and instructions. Scopeview submits that there was nothing in the 2019 Dilapidation Report to suggest that the Rayman Home was unusually vulnerable to damage caused by settlement during shoring and excavation works. Nevertheless, it cannot be disputed that Scopeview was aware (by reference to the Martens Report) of the risk posed by vibrations during the shoring process if sheet piling were to be used and that the initial shoring design provided for contiguous piling as noted above. Ms Brown notes that the 2019 Dilapidation Report does not address the lower ground level storage, and says that the approved plans do not give proper detail of the footings. Engagement of Scopeview At some stage in December 2019, Mr Brown sought a quote from Mr Doueihi of Scopeview to carry out the construction works. Scopeview is a residential construction company operated by its director, Mr Doueihi. In 2020, it

had three employees: Mr Doueihi, a construction manager (Mr Raymond Taroun) and a site supervisor (Mr Jason Maatouk) (see Mr Doueihi’s first affidavit in the proceedings sworn on 23 August 2023 at [4]). On 18 December 2019, Scopeview was provided (electronically, through a dropbox link by email) with the Development Consent, the Modified Development Consent, the Martens Report and the 2019 Dilapidation Report (see Mr Doueihi’s first affidavit at [10]-[12]). Mr Doueihi’s evidence is that he read the Martens Report and noted, among other things, that Martens did not recommend the use of driven and sheet piles because of vibration impacts (see Mr Doueihi’s first affidavit at [12]). Mr Doueihi accepted that he understood that Martens had recommended a ground vibration peak particle limit of 3 mm/s (29/10/25; T 202.3). (Mr Doueihi gave evidence at the hearing, which Scopeview says should be accepted, that he was “no vibration expert” and, with respect, that is clear from Mr Doueihi’s misunderstanding as to whether 3 mm/s would mean a lower or higher frequency – see below.) Further, Mr Doueihi accepted that he understood that the Martens Report directed attention to the fact that vibrations could be a problem and that care would need to be taken when the excavation works were carried out (29/10/25; T 202.14). Mr Doueihi also deposed that he was provided with the Notice of

Determination issued by Waverley Council and referred in his first affidavit to Conditions 13, 14 and 30 of the Development Consent (see his first affidavit at [13]-[16]). As to the 2019 Dilapidation Report with which Mr Doueihi was provided, he deposed that he noted that the engineer was satisfied that the work could be carried out without short or long term impact on the Rayman Land and that the engineer stated that it was important that the works were carried out in a competent and safe manner taking skill and care (Mr Doueihi’s first affidavit at [18]). Mr Doueihi made no reference in his first affidavit to having noted that the 2019 Dilapidation Report stated that a shoring system had been devised consisting of contiguous piering and strutting; nor that this was to accommodate the integrity of adjoining structures (relevantly including the Rayman Home). On 19 December 2019, Scopeview issued a quote to Ms Brown for a fixed price of $2,253,482.00 including GST. The quote included to “supply and install continuous [sic] piling to not [sic] undermine neighboring [sic] properties as per engineer details” at a fixed price of $224,800.00 including GST. Pausing here, it is clear that the engineering drawings prepared by Mr Zimmerman provided for contiguous (not sheet) piling and the reference to “continuous piling” must be understood in that context as a typographical error. The

quote, which was expressed to expire on 10 January 2020, similarly must be read as making provision for contiguous piling. The amount of the fixed sum quote attributed to shoring and excavation was $224,800.00 including GST. The quote also included demolition (at a cost of $45,100.00 including GST). On 15 January 2020, Mr Brown sent an email to Mr Doueihi, stating “Hi Cameron, found this report as well”, attaching a PDF copy of the Martens Report as well as a document described in the email as an Acid Sulfate Soils Advice also prepared by Martens. It is not clear why Mr Brown forwarded a PDF copy of the Martens Report to Mr Doueihi at that time (since it was contained in the Dropbox documents the link to which had earlier been provided to Mr Doueihi). However, Ms Rayman emphasises that this demonstrates Mr Brown’s awareness of the Martens Report at that time. Mr Brown’s evidence in cross-examination was that he presumed that Mr Doueihi had requested the documents but he did not know, adding that they must have been important (28/10/25; T 160) (see [288] below). Building Contract On 21 January 2020, Ms Brown and Scopeview entered into a NSW Residential Building Contract for New Dwellings (the Contract) for the construction of a new home on the Brown Land and to carry out the works shown in the Modified Development Consent, which involved excavation to approximately 3 m below

existing ground level. Ms Brown signed the Contract as owner; Mr Brown did so as guarantor. The fixed price specified in the Contract was reduced from that specified in the earlier quote to $1,765,982.00 including GST. Schedule 2 to the Contract, headed “Progress Payments”, included as the first stage “Excavation” and provided for “Bulk Excavation, sheet piles completion” in the amount of $176,598.20. (Ms Rayman points out that this was at a much cheaper cost ($176,598.20) in lieu of the “continuous [sic] pile wall” specified in the quote ($224,800.00).) Pausing here, in its opening submissions, Scopeview took issue with the suggestion by Ms Rayman that, by 21 January 2020, it had already agreed with “the Browns” to use a sheet piling system because it was cheaper. Scopeview submitted that Ms Rayman’s submission conflated the quoted price with the schedule of progress payments in the Contract, the purpose of which was to provide for milestone payments over the course of the works. However, I note that cl 17.2 of the Contract obliged the owner to pay the contract price progressively as claimed by the builder and that Schedule 2 clearly referred to “sheet piles completion”. That said, insofar as Scopeview takes issue with Ms Rayman’s suggestion that the decision to use sheet piling was because it was cheaper, then I note that Mr Doueihi’s evidence was that he did not believe it

was cheaper (see below). In cross-examination, Mr Doueihi accepted that, by the time he prepared the Contract, he had decided in his mind to use a sheet piling system (29/10/25; T 208.11). That is consistent with the specification of progress payments with reference to sheet piling. What is unclear is whether or to what extent that had been the subject of discussion with, or agreement by, Ms Brown (or her husband) prior to the Contract being signed (although Mr Doueihi’s evidence was that he had discussed the Contract with Mr Brown and had explained sheet piling to him – see below). Further, the motivation for Mr Doueihi to use sheet piling (as opposed to contiguous piling) was also not clear. In cross-examination, Mr Doueihi said that: he understood the difference between a sheet piling system and a contiguous piling system (29/10/25; T 203); he understood a sheet piling system to be quicker to install than contiguous piling (29/10/25; T 215); and he had used a sheet pile shoring system once before, on a project in Matraville (29/10/25; T 201), but had not previously undertaken a project involving a contiguous pile wall shoring system (29/10/25; T 203). Mr Doueihi did not (unlike the structural engineers who gave evidence) understand the use of sheet piling to be cheaper than that of contiguous piling (29/10/25; T 215). I note that, in his first affidavit, Mr Brown attributes

the decision (by Mr Doueihi) to use sheet piling as due to the time that had been taken by the principal certifying authority (PCA) to get all the documentation “sorted out” and that the schedule was running behind (at [48]). Clause 13.1 of the Contract (on which Mr Brown places no little weight) provided that the owner (Ms Brown) gives the builder (Scopeview) exclusive possession of the site to carry out the building works. Clause 2.1 provided that the builder must carry out and complete the building works in accordance with the contract. The term “building works” is defined in cl 1.1 as meaning the building works “to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents …”. “Contract documents” included the general conditions, any special conditions, the plans, the specifications and other documents specified in Schedule 5 (of which there were none). Clause 39, headed “Statutory Warranties”, contained a warranty by Scopeview “to the extent required by the Home Building Act” that the building works will be done with due care and skill in accordance with the plans and specifications attached to the contract; and in accordance and compliance with the Home Building Act 1989 (NSW) (Home Building Act) or any other law. Clause 40, headed “Mandatory Conditions”, provided under sub-cl 40.1 that, to the extent

required by the Home Building Act and subject to sub-cl 40.2, the building works will comply with, among other things, (c) the conditions of any relevant development consent or complying development certified. (Ms Rayman points out that the development consent with which Scopeview was thus required to comply provided for contiguous piling not sheet piling.) Appointment of PCA On 22 January 2020, Mr Brown applied (on behalf of Ms Brown) for a construction certificate (for site preparation and demolition) and appointed Building Certifiers Australia (BCA) as the PCA. Ms Tiana McSeveny of BCA was the certifier at BCA who acted in relation to the development (until BCA was replaced in April 2020). Issue of Staged Construction Certificate On 22 January 2020, Waverley Council issued notification that Conditions 2 and 2A of the Modified Development Consent (requiring modified plans to be submitted and approved) had been complied with; and a staged construction certificate was issued permitting demolition to occur, with BCA (Ms McSeveny) appointed as the certifier. Reference by Mr Brown to contribution levies On 30 January 2020, Mr Brown emailed Mr Doueihi, referring to contribution levies (with which the owner was required to comply under the Contract) and asked that Scopeview take out “most [of] the provisional sums” (including demolition, which was already excluded in the Contract –

see Schedule 3). Further, the Contract made no provision for provisional sums as such. Ms Rayman argues that this email shows Mr Brown taking responsibility for such matters and in cross-examination Mr Brown accepted that he had “some role to perform” with respect to satisfying the conditions of the Modified Development Consent (see 27/10/25; T 155). However, I note that this email also suggests that Mr Brown did not have a clear understanding of the Contract provisions even though he had apparently taken advice from Mr Rod on the Contract before it was signed. Meso Mr Doueihi deposed in his first affidavit affirmed on 23 August 2023 (at [19]) that he approached Mr Tim Orr, the Managing Director of Meso, to advise and prepare a shoring design (Mr Doueihi did not at [19] specify when he did so) and to his previous use of Meso on another job and his awareness of Meso. Mr Doueihi deposed that it was his intention that Meso would undertake the design and certification of the shoring design and complete the shoring works as part of a complete package. Mr Doueihi then deposed (at [20] of his first affidavit) that on or about 31 January 2020 he had a conversation with Mr Orr in which he said words to the effect: I have a job in Gilgandra Road, North Bondi. It’s a bulk excavation project. At the moment, it’s designed as contiguous piles. Would you mind quoting it for me? Mr Doueihi

deposed that Mr Orr asked him to send the geotechnical report and plans (at [20]). At 10:11am on 31 January 2020, Mr Doueihi sent an email to Mr Orr attaching the Martens Report and a copy of the plans for the works (at [21]). Mr Orr responded to the 31 January 2020 email that it seemed like a “pretty good soil profile” and asked for the site survey. Pausing here, in cross-examination Mr Doueihi said (for the first time) that he had had a conversation with Mr Orr prior to the signing of the Contract (i.e., prior to 21 January 2020) in which Mr Orr gave him verbal advice as to the feasibility of a sheet piling system for the site (29/10/25; T 209). Mr Doueihi’s evidence was that Mr Orr’s advice was that sheet piling “does work in North Bondi”. Mr Doueihi was challenged on the date this conversation took place. For such a conversation to have taken place before 21 January 2020 is inconsistent with the terms of the conversation to which Mr Doueihi deposes at [20] of his first affidavit (which suggest that this is the first contact about this project). Moreover, if Mr Orr did indeed give any oral advice in relation to the project prior to the date of the Contract, then it must have been without the benefit of any plans or geotechnical report as there is no evidence that any of those documents had been provided to Mr Orr by then. Scopeview nevertheless submitted that the date “on or

about 31 January 2020” in [20] of Mr Doueihi’s affidavit is likely to be incorrect (see 29/10/25; T 247.20). I am unable to make such a finding. The fact that Mr Doueihi sent the documents in relation to the project to Mr Orr on 31 January 2020 in my view makes it more likely that the conversation in which he asked Mr Orr to provide a quote for the project was on or about that date, not some ten or so days before. As adverted to above, by the time Meso was engaged, the only geotechnical report (the Martens Report) was one which recommended against sheet piling and proposed a vibration limit level of 3 mm/s. As Mr Doueihi clearly recognised, the proposed design at that time was for contiguous piling. However, the signed Contract clearly contemplated sheet piling and the construction drawings subsequently issued by Meso set vibration levels at 8 mm/s and 10 mm/s (see below). Engagement of IDC and preparation of the temporary shoring plan As noted above, Meso engaged IDC to prepare the initial design for the temporary shoring system. On 6 February 2020, IDC prepared drawings for review (Agreed Fact [24]). On 7 February 2020, Meso emailed Scopeview a temporary shoring plan prepared by IDC (Temporary Shoring Plan) which specified temporary sheet pile shoring (Sheet Piling Rev A Plans). The Sheet Piling Rev A Plans identified three sheet pile walls with bracing to be used until

removed once the basement slab is poured. Of these walls, Wall 3 was the sheet pile wall closest to the Rayman Land. The code of practices and standards compliance notes under the Temporary Shoring Plan stated that “[t]he shoring design complies with Australian Standards AS4678 with the intended purpose to adequately [sic] support the proposed excavation works, surrounding structures services, and roadway”. The general notes to the Temporary Shoring Plan also include the statement that the head contractor (i.e., Scopeview) shall ensure that all works are carried out in a manner that will not cause any damage to adjacent properties, structures, roads and/or utilities. In the monitoring regime notes, there appears the following: Vibration review levels are: (Typical refer to Vibration Consultants Criteria) Operator Warning Level: 8 mm/s Operation Halt Level: 10 mm/s IDC’s proposed vibration levels were repeated in Revision B (“For Construction”) of the Temporary Shoring Plan dated 16 April 2020 and Revision C (“For Construction”). The sheet pile notes section to the Temporary Shoring Plan provided that the sheet pile wall consists of SCH5-750 sections. (This is relevant in light of the expert opinion of Mr Wong as to the consequence of the thinness of the sheet piles used, namely, that there was more deflection – see below.) Meso Works Summary Document On 8 February 2020, Mr Orr

sent Mr Doueihi a “Works Summary Document” setting out Meso’s proposed method of shoring (sheet piling). Mr Orr said this was to “share what we know, assume and what needs to be discussed, determined or refined”. Mr Orr asked Mr Doueihi to read this “and then let’s discuss and agree the final details” before he issued a formal Letter of Offer. Mr Doueihi’s evidence is that he read this document and he noted various of its contents (see his first affidavit at [26]-[29]). In the Works Summary Document, Meso confirmed that it had been asked by Scopeview “to review the documents supplied [by Scopeview] and offer a shoring solution for that project”. The Works Summary Document confirmed that documents reviewed by Meso included the architectural drawings, structural drawings, site survey prior to clearance of the site and the Martens Report (which, as noted, recommended against sheet piling). The Works Summary Document confirmed that Meso’s costs estimate included, amongst other matters, design and certification, supply of all materials to site, placement of all sheet piles and bracing as per the shop drawings (i.e., the Temporary Shoring Plan prepared by IDC). Under the heading “Vibration Management”, the Works Summary Document strongly recommended consultation with a vibration consultancy firm regarding the impacts of the construction on adjacent structures and in particular with

regard to the properties immediately on the eastern boundary (i.e., the Rayman Land) and western boundary (i.e., the Stockley Land). Meso stated that it was also likely that “you will have at least one neighbour who insists that you are causing damage when you are fully complying with the Codes and Standards” (which may perhaps explain, though not justify, the rather dismissive attitude that Mr Orr seems later to have taken when use of sheet piling was queried with him and when simply relying on the vibration reports after damage had occurred – as to the latter, see [335] below – but this is simply speculation). The Works Summary Document stated that the demolition stage was the stage which represented the highest risk of damage to adjacent structures “in particular the low frequency ground quake caused by the use of hydraulic hammers and falling concrete and the like”. (That observation proved incorrect.) The Works Summary Document stated that the toe of the sheet pile wall would extend 2 to 3 metres below the bulk excavation level. Meso explained that it was “not really confident” with a cantilever higher than around 2.75 m and opined that any amounts greater than this must be supported either by soil anchors or internal bracing. Meso stated that there were pros and cons for each, but that Meso felt that bracing would be more expeditious. (Mr Doueihi deposed that he had no

experience with soil anchors and that he understood they were cheaper but involved drilling into the neighbouring property (see his first affidavit at [27]).) Meso suggested that the basement slab, when constructed, should extend to the sheet piles to brace the sheets. (Mr Doueihi deposed that this was subsequently done when the slab was poured in July 2020 (see his first affidavit at [28]).) In oral submissions, it was suggested that the options of anchors or bracing would not be relevant if one were having contiguous piling (see 27/10/25; T 21) but Mr Appleyard (the expert structural engineer called by Scopeview) said that cross-bracing would be relevant for both types of shoring (30/10/25; T 357.35). Meso recommended that it finish sheet piling placement prior to the excavation contractor establishing itself on the site given that it was a small site and stated that Meso proposed to use a “smaller” 14 tonne excavator to place the piles. (I note that the Martens Report had recommended that the excavator since be limited to 8 tonnes as it caused less vibration – see [54] above.) The reference to “smaller” in the Works Summary Document was explained by Mr Doueihi as being that Meso had initially proposed to use a 25 tonne excavator (29/10/25; T 214.48). The Works Summary Document set out a sequence of works which included: the placement of offset pegs showing back of the

permanent wall alignments; placing of sheet piles; excavation from the northern end back towards where bracing needed to be placed; excavation of soil to just below bracing level; placement of screw piles; placement of bracing; completion of bulk excavation; completion of detailed excavation and placement of slab on ground; and removal of the bracing. In his evidence at the hearing, Mr Doueihi accepted that it was his responsibility to determine the location of the external basement walls and the distance between the external basement walls and the temporary shoring wall. (Scopeview accepts that the shoring wall nearest the boundary with the Rayman Land was placed approximately 400-450 mm from the boundary. The complaint that is made by Ms Rayman in this regard is that the Temporary Shoring Plan called for the shoring wall to be placed hard up against the external basement walls which were to be built. As adverted to above, other than Mr Dockrill, the engineering experts placed no significance on any discrepancy with the plan in this regard.) After explaining the sequence of works, Meso advised that the estimated duration of works would be three days for placement of sheet piles after Meso had established itself on site; and that placement of the bracing system would take one day. In fact, Meso took six days to install the bracing. Scopeview submits that Meso’s Works Summary

Document is consistent with Mr Doueihi’s understanding that Meso would undertake the design, certification and installation of the shoring as part of a “complete package” to deliver the shoring system for the works. Confirmation from Scopeview as to Meso’s proposal It appears (from the reference in Mr Doueihi’s 11 February 2020 email to “[a]s discussed recently”) that there was a discussion between Mr Orr and Mr Doueihi on or before 11 February 2020 in which Mr Doueihi indicated that he was happy to proceed with Meso’s proposal “considering sign off from [your; i.e., Meso’s] preferred engineer” (see Mr Doueihi’s email sent on 11 February 2020 at 3:16pm). Mr Doueihi confirmed in his oral evidence that “preferred engineer” was a reference to IDC (see 29/10/25; T 210.22). Following receipt of that email, Mr Orr sent an email that day to Mr Doueihi, copied to others including Mr Edwin Chang of IDC, asking Mr Chang “can we look the [sic] complete the Design and accompanying report over the next week please”. Building Certifier’s proposal On 12 February 2020, Mr Brown (on behalf of Ms Brown) accepted and signed a fee proposal issued by BCA for its appointment as PCA. Design Certificate for temporary shoring On 17 February 2020, Meso emailed to Scopeview a Design Certificate for the Temporary Shoring Design (IDC Design Certificate) and a Design and Analysis Report for the Proposed

Temporary Shoring System (IDC Design and Analysis Report) both prepared by IDC. The former provided certification for the Sheet Piling Rev A Plans (which included the sheet pile drawings). The IDC Design Certificate identified that IDC had been provided with: IDC “Shop Drawing” (the Rev A Plans), the Martens Report, Mr Zimmerman’s structural drawings (Rev A) and MASQ architectural drawings (Rev F), as well as a site survey plan. The IDC Design and Analysis Report noted that Scopeview had engaged IDC to design a temporary shoring system to “allow excavation and construction of the basement and its modelled effects on surrounding structures and utilities”. The IDC Design and Analysis Report was signed by Mr Chang, senior engineer. It recorded the soil parameters of the site as varying from very loose sand, loose sand and medium dense. The IDC Design and Analysis Report confirmed that the builder (i.e., Scopeview) must ensure that Meso complied with the design considerations and recommendations. Mr Doueihi confirmed that he read the IDC Design Certificate and the IDC Design and Analysis Report (see his first affidavit at [39]). The latter report noted that the temporary shoring was to be required on site for less than six months. The IDC Design and Analysis Report assumed an “allowable maximum deflection” of 0.5% times the excavation depth. (On Mr Appleyard’s calculations, IDC’s

“allowable maximum deflection” equated to 19 mm.) IDC initially calculated the anticipated deflection of the braced sections of Wall 3H (the section of the shoring wall running along the common boundary with the Rayman Land where the excavation was deepest) at 5.54 mm. (Following the identification by EIA on 16 April 2020 of additional layers of dense and very dense sand, IDC revised its assessment of anticipated deflection downwards to 2.29 to 2.46 mm.) As to the “impact assessment” in relation to existing buildings and utilities, the IDC Design and Analysis Report stated: Based on the computed ground settlement of the proposed shoring system, the effect of excavation to the adjacent buildings and utilities in general is negligible. The design and construction of the shoring and the excavation will not have an adverse impact on the adjacent properties. Scopeview submits that that this was an important statement from the structural engineer responsible for designing the shoring system. Scopeview’s case is that it relied on it; and that it was reasonable for it so to do. As to monitoring, the IDC Design and Analysis Report stated that “[w]here there is a potential for damage to the adjacent structures due to construction operations, appropriate instruments shall be installed and monitored to ensure the structural integrity of the structure is not compromised”. Mr Doueihi deposed

that he made the decision to proceed with the shoring plan recommended by Meso (see his first affidavit at [39]) having reviewed the Temporary Shoring Plan, the Works Summary Document, the IDC Design and Analysis Report and the IDC Design Certificate. (Mr Doueihi makes no reference there to the Martens Report, which recommended against sheet piling or the Zimmerman structural drawings which provided for contiguous piering and strutting.) Mr Doueihi asserted that he relied on the advice of Meso and IDC in those documents (at [39]). (Pausing here, each of the documents on which Mr Doueihi asserts he relied on when making the decision to proceed with the shoring plan recommended by Meso post-dated the Contract, which made provision for sheet piles. This sits uncomfortably with Mr Doueihi’s own evidence that, as at the time of the Contract, he had in his own mind decided to use sheet piling.) First Scopeview invoice On 18 February 2020, Scopeview issued Ms Brown a tax invoice for the deposit, being the first payment due under the Contract. Requirement for notification of adjoining neighbours Ms Brown has deposed that on 20 February 2020 she took a photograph of Condition 14 of the Development Consent and sent it to the site foreman (Jason). Ms Brown does not explain why she did so at that time but at the very least it indicates an awareness of the need for neighbours to be notified

before commencement of excavation as a condition of the Modified Development Consent. Construction certificate for demolition On 25 February 2020, Scopeview sent an email to the PCA asking if a construction certificate for demolition could be issued urgently (so that demolition works could commence). That email stated that all neighbouring properties had been given five days’ notice already. (The only evidence of any notification to neighbours by that date was Mr Doueihi’s “memory” that his employees did do “doorknocking” of the neighbours – but that may have been based on no more than his usual practice – see 29/10/25; T 226.) A construction certificate for demolition was issued that day. Pausing here, I note that in his first affidavit Mr Doueihi deposed that demolition commenced at the end of January or early February 2020 (at [40]). If that is correct, then demolition would have commenced before the staged construction certificate had been issued. That seems unlikely to have been the case. A late February date for commencement of demolition seems more likely. Scopeview engaged Rahme Civil to undertake the demolition which was completed within three to four days (see Mr Doueihi’s first affidavit at [40]). Enquiry from the other adjoining neighbour (Mr Stockley) On 1 March 2020, Mr Brown received an enquiry from the other adjoining neighbour, Mr Stockley, as to when a

geotechnical report and details of bulk excavation would be provided (Conditions 13, 14 and 30 of the Modified Development Consent). Mr Brown sent Mr Doueihi an email referring to those conditions of the Development and asking “Can I send these documents to him, or must check with Tiana? [the certifier]”. Ms Rayman points to this email as demonstrating Mr Brown’s knowledge of what was required by way of notification to neighbours of adjoining properties of the excavation works. Ms Brown points to this email for a different purpose, arguing that it demonstrates that Mr Brown was checking with the builder for approval consistently with the builder (Scopeview) having control of the site. As to that argument, I note that the query made in the email was posited by reference to whether it was necessary for Mr Brown to check with the PCA before sending the documents, which does not suggest that Mr Brown thought approval from Mr Doueihi himself was necessary. 2 March 2020 notification to Mr Stockley On 2 March 2020, Mr Doueihi emailed the IDC Design and Analysis Report and the IDC Design Certificate (which as already noted, specified a sheet piling shoring system) to Mr Brown, who then emailed those documents to Mr Stockley, inviting him if he had any relevant matters of concern to discuss them with the builder and providing Mr Doueihi’s details. No such notification was sent to Ms

Rayman at the time. Disputed 2 March 2020 conversation Mr Brown deposed in his affidavit sworn on 25 July 2023 that, at the time he sent his email to Mr Doueihi (about Mr Stockley’s enquiry), he “telephonically” asked Mr Doueihi if he could send the documents to the Raymans as well and that “[h]e [Mr Doueihi] said no, he would take care of it” (at [98]). The subject matter of the reopened hearing was as to this disputed telephone conversation (that Mr Brown said had taken place on 2 March 2020 between him and Mr Doueihi). I set the evidence as to this issue out in some detail in due course. Suffice it for the purposes of the chronology of events to note that Mr Brown’s evidence at the initial phase of the hearing (i.e., before the reopened hearing) was that he had a conversation with Mr Doueihi on 2 March 2020 in which Mr Doueihi told him “no, he would take care of it” or to “leave it with me” as opposed to Mr Brown’s subsequent evidence in cross-examination that, in that conversation, Mr Doueihi positively told him that he must not send the documents (relating to the excavation works) to the Raymans. Demolition complete By 6 March 2020, demolition of the existing structure on the Brown Land was complete (consistent with a late February demolition start date). Mr Zimmerman’s enquiry At 12:50pm on 17 March 2020, Mr Zimmerman sent an email to Mr Brown advising that it had come to

his attention that the builder intended to use a different shoring system to the one specified by Mr Zimmerman. Mr Zimmerman stated that “[w]e have in principle no issue to separate the shoring system from the structure since both are independent” but noted that the Martens Report limited the type of shoring to be used on the site and he attached a copy of the Martens Report and the relevant page referring to the shoring. Mr Zimmerman said that these should be brought to the builder’s attention. At 9:41pm that day, Mr Brown forwarded Mr Zimmerman’s email to Mr Doueihi, saying: Please see note from the engineer. Sheet piling not recommended, but disallowed. [sic; presumably meaning “not disallowed”] But we are going to use them. I interpose to note that this not only makes clear Mr Brown’s understanding that the use of sheet piling was not recommended but also makes a positive assertion that “we” are going to use sheet piles. In his evidence, Mr Brown insisted that Mr Doueihi made the decision to use sheet piling and Mr Doueihi accepted that he did so. However, this email makes clear that as at 17 March 2020 Mr Brown was emphatically endorsing that decision (and seemingly justifying the departure from the Martens recommendation on the basis that it was not “disallowed”). Mr Doueihi’s response the following morning, by email sent at 9:34am on 18 March 2020, was to say “[h]e’s

[presumably, Mr Zimmerman] well behind on the latest products and we have a separate engineer who has signed off on it according to the geo tech report”. This must be a reference to the IDC reports, since nothing had yet been obtained from EIA on this issue. Mr Weinberg’s enquiry of Council On about 18 March 2020, Ms Rayman’s father (Mr Errol Weinberg) made an enquiry with a duty planner at Waverley Council as to whether sheet piling was approved by Waverley Council given that the geologist report (Martens) and “our Engineer” (Mr Zimmerman) did not recommend that sheet piling be used given the close proximity of the Rayman Home (see Mr Weinberg’s subsequent email on 16 April 2020). Survey On 1 April 2020, a survey report of the site was obtained by Scopeview. Meso’s communication with Martens At 12:17pm on 9 April 2020, Mr Orr of Meso sent an email to Mr Burgess (as noted above, the principal geotechnical engineer at Martens who had prepared the Martens Report) copying in Mr Doueihi amongst others, attaching the Martens Report, Meso’s “shop drawing” and combined architectural structural plans. Mr Orr outlined the steps Meso would take to manage vibrations to ensure adjacent assets were not placed at risk. Mr Orr recommended that a vibration consultancy firm such as VMS be retained to provide a procedure for managing vibrations during demolition and “in-ground works stages”,

including placement of vibration monitoring units on adjacent structures, which would have “warning” and “stop works” thresholds set which would in turn trigger audio and visual alarms to ensure no vibrations are created that would place adjacent structures at risk. Mr Orr said that Meso would pre-drill shoring alignments with a CFA auger both temporarily to loosen the soil and to ensure no obstructions would interfere with sheet placement; and that Meso would then place sheets in accordance with the consultancy’s requirements “which typically include running the vibro heads at their highest frequency and floating the sheets down”. At 1:06pm that day, Mr Quinton of MASQ sent an email to Mr Brown asking him to “email me the Geotech”. At 1:24pm, Mr Doueihi provided to Mr Burgess (copied to Mr Brown amongst others) the terms of Condition 13 of the Development Consent (extracted above) which required a geotechnical report regarding the stability of the site “stating that damage should not occur to any adjoining premises” to be forwarded prior to the issuance of a construction certificate and commencement of any works on the site. Mr Doueihi asked Mr Orr to obtain the required approval from Martens. 9 April 2020 email from Mr Brown to Mr Quinton At 1:28pm on 9 April 2020, Mr Brown sent an email to Mr Quinton at MASQ saying that a lot had transpired since they spoke “last night” and

that: Basically, I want to use the sheet piling. Do you think Zimmerman could remove the perimeter piling from his drawings? (Only you can convince him to do so) Geotech (Martens) say they don’t recommend it (but they do not say it can’t be used), however they are willing to change their report. I have consulted with another engineering company that has been doing sheet piling in the Eastern suburbs for many years, they recon [sic] it’s perfect, they have spoken to Martens, who have agreed. They are busy preparing a new report. Is it ethical to get a new certifier who want’s [sic] to work with us at this stage. Please call me. There is no evidence that Martens had agreed to “change” its report or had agreed to the use of sheet piling. The highest the evidence goes in this respect is that Mr Zimmerman (not of Martens) had said, in his 17 March 2020 email to Mr Brown, that “[w]e have in principle no issue to separate the shoring system from the structure”. Further, it is not clear to whom Mr Brown was referring when he said in this email that he had consulted with another engineering company which had been doing sheet piling in the eastern suburbs for many years and which reckoned it was “perfect”. It seems likely that this was a reference to Meso but there is no evidence that Mr Brown had himself spoken with anyone from Meso (as opposed to Mr Doueihi having told Mr Brown that

“we have a separate engineer who has signed off on it [sheet piling]”). Nor is it clear what in Mr Brown’s view had “transpired” (which he described as “a lot”) since he had spoken with Mr Quinton the previous night. Relevantly, what the contemporaneous documents suggest had happened on or around 9 April 2020 was that there was a recognition (by Mr Doueihi) that Condition 13 of the Development Consent required a geotechnical report (containing the requisite statement regarding the stability of the site) and, it seems, a recognition (by both Mr Doueihi and Mr Brown) that the IDC documents providing for sheet piling were inconsistent with the Martens Report and the Zimmerman drawings which provided for contiguous piling. Hence, the need for a “new report” to comply with Condition 13 (and, by 14 April 2020, Mr Brown’s request for help from Mr Quinton to procure further amendment to the Zimmerman drawings – see below). What is also clear on the face of Mr Brown’s email of 9 April 2020 was that he was (again) positively asserting that he wanted to use sheet piling. (In the witness box, Mr Brown insisted that he wrote this email on Mr Doueihi’s instructions and he did not himself want to use (or was indifferent to the use of) sheet piling but, if so, then he was clearly prepared to misrepresent the position to Mr Quinton since the email unambiguously says “I want to use the sheet

piling” (my emphasis) (see cross-examination to this effect extracted at [307] below).) As to the query in this email as to whether it was “ethical” to get a new certifier, Mr Brown explained this (unconvincingly in cross-examination as being simply a question of politeness on his part (not ethics) (see 28/10/2025; T 173; [308] below)). Amendments by Mr Zimmerman At 2:13pm on 9 April 2020, Mr Zimmerman emailed Mr Quinton the Martens Report and another document. Mr Quinton forwarded that email to Mr Brown at 3:03pm. At 4:02pm that day, Mr Brown emailed to Mr Doueihi “[Mr] Zimmerman’s amendments” including a structural plan (excluding perimeter piling) and certificates issued by Mr Zimmerman to obtain a construction certificate. Engagement of EIA On 14 April 2020, at 9:06am, Mr Burgess (of Martens) sent an email to Mr Doueihi referring to the Martens preliminary geotechnical assessment for the DA submission (which he understood used hand augers of limited depth). Mr Burgess said that, for a “cc [construction certificate] geotechnical report”, it was recommended that two auger drilled boreholes be carried out to 2 m below maximum excavation depth with “SPT’s” and further assessment of ground water depth. He then said “[f]urther to my conversation with Tim Orr, we will comment on the use of sheet piles in the CC report from which you can base a decision on the type of shoring to

adopt”. (This suggests that at least Mr Burgess thought a decision had not yet then been made – cf Mr Brown’s statement to Mr Quinton that he wanted to use sheet piling and his earlier adamant assertion to Mr Doueihi that “we are going to use them [sheet piles]’’.) Mr Burgess asked if Mr Doueihi would like a proposal for the work, “assum[ing]” it was quite urgent. It is not clear on what basis Mr Burgess assumed that this was quite urgent. Presumably this email from Mr Burgess followed a request made by Mr Orr (at the request of Mr Doueihi) to obtain from Martens the approval required by Condition 13 (see [142] above). Mr Doueihi forwarded that email to Mr Orr of Meso at 9:22am. Mr Orr then sent an email at 10:43am on 14 April 2020 to Mr Eric Gerges of EIA, forwarding an email trail (perhaps the 9:06am and 9:22am emails but those do not refer to Condition 13), stating that: I have a client who has a site in North Bondi and who is desperate to start. They have already completed demolition. However, they need to comply with the condition stated in the email trail below. They also need to confirm that sheet piles are appropriate. Hence my description of the vibration management processes. [my emphasis] Martens have proposed returning to site to undertake further investigating which may be necessary. I have attached our shop drawings, the Martens preliminary geotechnical report and

the combined architectural and structural plans. …The main focus right this moment would be the cost of your proposal and timing. At 1:36pm on 14 April 2020, EIA emailed its proposal to Meso to “complete two additional boreholes with SPTS with the installation of a well” (a more detailed geotechnical investigation than that previously carried out by Martens) at an estimated cost of $6,600.00 (including GST). Martens also submitted a fee proposal (see below), at a lesser cost, but it was not accepted. Mr Orr apparently recommended engaging EIA, rather than Martens, to prepare the geotechnical report. The reason given by Mr Orr to Mr Doueihi was that he had an existing relationship with EIA and that it would be “easier and quicker to complete the [geotechnical] investigation”. Mr Doueihi accepted Mr Orr’s advice and subsequently approved EIA’s proposal which had been sent to him by Mr Orr. 14 April 2020 email from Mr Brown to Mr Quinton At 2:22pm on 14 April 2020, Mr Brown sent an email to Mr Quinton of MASQ thanking him for “helping to sort this out” and saying: Please can you help with another little thing from Zimmerman. All I need is for him to add in a line on his drawings and covering letter “Shoring design by others”. I can ask him, but you seem to be more persuasive. As to the requests by Mr Brown for changes by Mr Zimmerman to the engineering plans (i.e., to remove the

perimeter piles from the drawings and the addition “shoring design by others”, reshoring), Ms Rayman contends that this indicates that Mr Brown is “driving” these changes. Mr Brown disputes this and insists that this was done on instructions from Mr Doueihi. (Whether Mr Brown was the “driving force” is the subject of a factual finding for which Ms Brown contends – see below.) Invoice for procurement of sheet piles At 5:04pm on 14 April 2020, Meso issued a tax invoice to Scopeview for procurement of the sheet piles. Clearly by this stage, if not before, both Meso and Scopeview must have understood that a decision had been made for use of sheet piles (since otherwise the procurement of sheet piles would have been premature and potentially redundant). Revised certificate of structural compliance for works other than shoring On 15 April 2020, Mr Zimmerman issued to the PCA, care of MASQ, a revised certificate of structural compliance for the building works other than the shoring system, stating that “[p]lease note that the Shoring System is to be designed and certified by others”. This was emailed to Mr Brown at 8:38am on 15 April 2020. The revised certificate was emailed by Mr Brown to Mr Doueihi at 8:42am on 15 April 2020. On the same day, Martens issued a scope of works to carry out a more detailed geotechnical investigation at a cost of $5,200.00 plus GST, which was not

accepted. EIA investigation of site on 16 April 2020 EIA dug boreholes to confirm the soil profile on 16 April 2020. (The results showed the presence of two additional layers of sand, one dense and the other very dense, which had not been identified in the boreholes dug by Martens in June 2018 – see below.) Enquiry of Waverley Council On 16 April 2020, at 1:24pm, Mr Weinberg (Ms Rayman’s father) sent an email to Waverley Council pressing for a response to the enquiry he had made on about 18 March 2020 (as to whether sheet piling was approved by the Council) (see [138] above). The email stated that “as building construction is about to start we urgently require an answer from the Council” and was signed in Mr Rayman’s name. Mr Weinberg’s evidence at the hearing was that he became aware of the intention to use sheet piling after a discussion with Mr Zimmerman (28/10/25; T 146). VMS On 16 April 2020 at 4:27pm, Mr Orr of Meso sent an email to Mr Blake (of VMS), copied among others to Mr Doueihi, seeking VMS’ comments on the vibration monitoring required for the project and requesting a quote from VMS. Mr Orr noted in that email that the building adjacent to the site “on the right” (i.e., the Rayman Home) “appears to be a renovation placed on old foundations and shows some horizontal cracking, probably at the transition between the old and new walls” (at least the reference to the

horizontal cracking appears to derive from the 2019 Dilapidation Report). Mr Orr attached Meso’s shop drawings, the combined architecturals and structurals, the geotechnical report (the Martens Report) “for what its [sic] worth” and the site survey. Mr Orr noted that EIA had that day completed a couple of bore holes “which show loose sands to around three metres, thence medium dense and becoming dense with depth”. (Scopeview contends that Meso and VMS were therefore aware, at the time VMS gave its advice, of the recommendations made by Martens and that the Rayman Home may be susceptible to vibration-induced movement.) IDC Revision B construction drawings – 16 April 2020 At 10:29pm on 16 April 2020, IDC issued “For Construction Shop Drawing Revision B”, the temporary shoring plan prepared by IDC which specified sheet pile shoring (Sheet Piling Rev B Plans), emailing them to Meso. At 6:38am on 17 April 2020, Mr Orr of Meso emailed Mr Chang at IDC, and others, advising that EIA had completed two SPTs the previous day. Mr Orr expected the results some time on 17 April 2020 and said that he thought the loose sand might extend a little deeper than the previous “Geotech” report had led them to believe and that the bracing might need to be extended. IDC Revision C construction drawings – 20 April 2020 On 20 April 2020, at 5:41am, IDC emailed revised temporary shoring plans with

extended temporary bracing temporary sheet pile shoring (Sheet Piling Rev C Plans). Those plans showed three sheet pile walls with bracing to be used until removed once the basement slab was poured. Wall 3 was the closest sheet pile wall to the Rayman Home (22.8 m in length, comprising sheet piles extending up to 12 m into the ground). The plans specified that Wall 3 must be constructed at least 0.7 m from the boundary of the Rayman Land. VMS At 9:16am on 20 April 2020, VMS emailed Meso an offer to undertake vibration monitoring. (Pausing here, this suggests that VMS understood it was being engaged to undertake vibration monitoring but not necessarily to advise as to vibration limits.) Mr Blake advised that he had reviewed the drawing and the “Geotech” report and that both neighbouring properties were likely to be founded on loose sand. Mr Blake recommended a number of controls to ensure that neighbouring structures were not impacted by the proposed sheet pile works, including that the smallest available sheet piling vibratory driver capable of undertaking the required works should be used and that vibration levels be restricted to the recommended limits (8 mm/s warning and 10 mm/s halt level). The reference to having reviewed the “geotech report” was presumably to the Martens Report since the EIA Report had not been issued at that stage. The reference to “the drawing” seems to

be a reference to the IDC plans (see [99] above). The fee proposal provided for the installation and monitoring of up to four mounting plates (two on each neighbouring building). The recommended vibration limits seem to be drawn from the IDC Temporary Shoring Plan (see [99]ff above) or at least there is no indication from the VMS fee proposal that VMS had separately determined those vibration limits. On 20 April 2020, VMS installed three vibration monitors at Mr Stockley’s property, with alarms set to trigger at 8 mm/s and 10 mm/s halt level. IDC Report At 2:42pm on 20 April 2020, IDC sent an email to Meso attaching a Design and Analysis Report on the Sheet Piling Rev C Plans (Rev C IDC Report). The IDC Report stated that the builder (i.e., Scopeview) is responsible to ensure that Meso complies with the design considerations and recommendations. The IDC Report noted the presence of two additional layers of sand, one dense and the other very dense, which had not been identified in the earlier report. The IDC Report noted that the temporary shoring system consisted of braced sheet pile walls with temporary bracing of struts and walers and cantilever sheet pile walls. The IDC Report stated that unexpected conditions may be revealed during construction and appropriate inspections and monitoring shall be carried out during the construction to ensure that the conditions revealed

during the construction are in accordance with the assumption made during the design. The report stated that any unplanned excavation or over-excavation below the proposed bulk excavation level was not allowed. On the same day, a design certificate was issued by IDC for the Sheet Piling Rev C Plans (the Rev C IDC Design Certificate). This document referred to the Martens Report (which, as I have noted more than once, expressly did not recommend the use of driven piles or sheet piles due to adverse vibration impacts on neighbouring structures/infrastructure). EIA geotechnical report At 2:42pm on 20 April 2020, EIA sent an email to Meso attaching an Additional Geotech Investigation Report (the EIA Report) to Meso. The EIA Report was emailed from Meso to Mr Doueihi (copied among others to Mr Chang of IDC) at 3:04pm on 20 April 2020. At 3:04pm on 20 April 2020, Meso sent the EIA Report to Scopeview. At 3.30pm that day, Scopeview emailed the EIA Report to Mr George Chidiac, the new proposed PCA (see below), referring to Condition 13. The EIA Report stated that the purpose of EIA’s investigation was to confirm the subsurface ground conditions to assist in the shoring design and to provide an opinion on the suitability of the use of sheet piles for the proposed development to satisfy Condition 13 of the Development Conditions. (This supports the conclusion that the flurry of activity

– or the “lot” which had transpired as at 9 April 2020 – related to the need to obtain a geotechnical report to satisfy Condition 13 of the Development Conditions, presumably because the Martens Report was only a preliminary assessment but also in the context that the Martens Report had recommended against sheet piling.) The EIA Report listed the documents used to assist in the preparation of the report. These included the Martens Report. The EIA Report stated: Based on the encountered subsurface conditions, a braced sheet pile wall is considered a feasible shoring system for this site to retain the proposed excavation. Appropriate construction methodologies and strict monitoring regimes such as vibration monitoring during installation must be adhered to as the sheet pile installation is proposed to be carried out within 1.3m to 1.6m of the existing building structures within the eastern and western neighbouring properties. However sheet piles installation can be managed without having any adverse impacts on the neighbouring assets and structures, with due diligence to the control measures practised during installation. The EIA report made no reference to the recommendations as to vibration limits (Martens’ advice being that vibration should be limited to 3 mm/s; Meso/IDC’s recommendation being 8 mm/s / 10 mm/s.) (I note that in the opinion of Mr Appleyard, the structural

engineer called by Scopeview, EIA’s advice was inconsistent both with the advice given by Martens and “generally accepted civil and structural engineering literature with regard to the use of driven sheet piles in loose sand”.) Thus, it was not until some time around 2:42pm on 20 April 2020 that there was any “competing” geotechnical report to the Martens Report in relation to the shoring system to be adopted for the excavation works. New PCA and application for a Construction Certificate On 21 April 2020, at 11:59am, Mr Chidiac, the new PCA, sent an email to Mr Doueihi asking that the owners fill out the application forms so that a construction certificate could be finished that day. Mr Doueihi forwarded the forms to both Mr Brown and Ms Brown at 12:47pm that day. By 3:48pm, Mr Brown had completed the forms and emailed them back to Scopeview. The notice of commencement form dated 22 April 2020 included certification by the owner (Ms Brown) that the development conditions had been satisfied. IDC – Revision C drawings At 3:32pm on 21 April 2020, Mr Chang of IDC emailed to Mr Orr and Mr Bobek at Meso the revised Rev C IDC Design Report and Rev C IDC Design Certificate and the updated For Construction Shop Drawing Revision C. At 3:50pm, IDC advised Meso that the maximum allowable deflection under the Australian Standards for the proposed piling walls was 20 mm, with a predicted

maximum deflection of less than 8 mm. At 4:03pm, Mr Orr of Meso sent an email to Mr Doueihi (copied to others including IDC) attaching the revised (Rev C) IDC Report, the Rev C IDC Design Certificate and the Sheet Piling Rev C Plans, which he described as being “based” on the updated geotechnical information. Notice of Commencement of Building Works On 22 April 2020, Ms Brown (as owner) and Mr Brown (as “Opperations [sic] Contact”) signed a Notice of Commencement of Building Works, declaring or certifying that all development conditions that are required to be satisfied prior to the commencement of building works had been satisfied and that building work was intended to commence on 24 April 2020. Mr Doueihi was shown an email (Ex 9) sent by him on 22 April 2020 to Mr Brown, saying: “Finally guys!! Please sign the notice of commencement and send back asap” (29/10/25; T 267.22). On any view of the matter the declaration that all requisite development conditions had been satisfied was incorrect. (It is accepted in these proceedings that Conditions 13 and 14 of the Development Consent had not been satisfied.) Issue of Construction Certificate On 22 April 2020, a construction certificate was issued, listing the (Rev C) IDC Report, EIA Report, and Sheet Piling Rev C Plans as endorsed structural plans, as well as the Martens Report. Response to Mr Weinberg from Waverley Council By

email sent at 10:51am on 22 April 2020, a duty planner at Waverley Council responded to the enquiry that had been made by Mr Weinberg (initially made orally back on 18 March 2020 and then followed up by email on 16 April 2020), extracting Condition 14 of the Development Consent and advising that it was the role of the “Principle [sic] Certifying Authority” to ensure that the recommendations of the report as described in this condition were implemented. The duty planner suggested that Mr Weinberg direct any concerns to the certifier regarding the response submitted to satisfy Condition 14. Mr Weinberg did so – see [181] below – but the certifier he contacted was Ms McSeveny who had by then, presumably unbeknownst to Mr Weinberg, been replaced by Mr Chidiac. At 1:02pm on 23 April 2020, Mr Orr of Meso informed Mr Blake of VMS and Mr Doueihi that it would commence with pre-drilling the following day and would commence placing sheet piles. At some time prior to installation of the sheet piles, Scopeview marked out the position of the external walls of the structure to be built using pegs and lines of string. The process was that a surveyor identified the boundaries of the site and provided a 350 mm offset from the boundary. Scopeview measured 350 mm from the offset to mark the location of the basement wall to be constructed near the common boundary with the Rayman Land. VMS monitor

settings On 23 April 2020 at 12:35pm, Mr Blake of VMS advised Scopeview that the vibration monitors had been set to trigger alarms “at 8mm/s warning level and 10mm/s halt level”. Provision of reports to Ms Rayman On Friday 24 April 2020, at 2:02pm, Mr Weinberg sent an email to Ms McSeveny of BCA advising that drilling had commenced and no structural report on excavations had been received. The email attached a copy of the letter from Waverley Council. There does not seem to have been a response to this email from Ms McSeveny (who by this stage had been replaced as certifier). However, it seems likely that someone raised the issue of lack of notification with either Mr Doueihi or Mr Brown because otherwise the following communications would appear to have come out of the blue. At 5:40pm on 24 April 2020, Mr Doueihi sent to Mr Brown a number of documents: certificates, the (Rev C) IDC Design Report and Analysis, the EIA Report and the Rev C Structural drawings. At 6:08pm on 24 April 2020, Mr Brown sent an email addressed to Mr Doueihi attaching the 2019 Dilapidation Report for the Rayman Home and asking whether it was “OK to send”. Significantly, Mr Brown highlighted the fact that it stated that the shoring system that had been devised consisted of contiguous piering and strutting. It is clear from this that Mr Brown must have appreciated at the time that the 2019 Dilapidation

Report reference to the design of the shoring system was inconsistent with what was about to take place on the site. (As already adverted to, Ms Brown seeks to explain the request as to whether it was “OK” to send these plans and reports on the basis that Scopeview had “control” of the site but that does not explain the highlighted reference to the difference in the shoring system that was proposed to be used from that referred to in the 2019 Dilapidation Report.) At 6:23pm on 24 April 2020, Mr Brown sent an email addressed to Mr Weinberg and to Mr Rayman attaching: the Sheet Piling Rev C Plans; the (Rev C) IDC Design Certificate; the (Rev C) IDC Report; the EIA Report; and the 2019 Dilapidation Report (not, I note, the Martens Report). At 9:33pm, Mr Weinberg sent an email to Mr Brown stating that “[h]opefully [he] will be able to get back to [Mr Brown] by Monday” (i.e., 27 April 2020). (Pausing here, although some criticism appeared to be made in submissions for Ms Brown to the fact that Mr Weinberg referred to being hopeful of getting back to Mr Brown by the following Monday, and it was suggested that Ms Rayman had ample opportunity to seek an injunction to restrain the sheet piling works, it should be noted that the Development Consent conditions required at least seven days’ notice of commencement of excavation works to be given (Condition 26). It is not clear that Ms

Rayman, or for that matter her husband and father, appreciated or should have appreciated on the Friday evening that the works would start the following Monday, well before seven days from the provision of such notice had elapsed.) Sheet piling works On 27 April 2020, Mr Blake of VMS attended the site from 1:30pm to 4:00pm to investigate vibration complaints (which, as Ms Rayman notes, could only have emanated from the other adjoining neighbour, Mr Stockley, since there was no damage at that stage to the Rayman Home by any vibrations). Mr Blake’s daily records note “Vib OK” but that he advised to back fill along the fence line due to early collapse of side pavement and fence posts due to over excavation. On Tuesday 28 April 2020, at around 9:00am, Meso started work on sheet piling for Wall 1 which is installed near the boundary of Mr Stockley’s property (according to Meso’s internal daily report). The daily report records that: 9.40-10.00 – We had to stop working under client’s instructions / meeting in the building next door [presumably the Stockley house] 10.30 – Setting up of drill rig Digging of access for predrilling 11.00 – Predrilling of walls no. 2, 3 12.00 – Unloading of sheets 1.30 – Sheet piling It does not appear to be disputed that, at around 1:30pm on 28 April 2020, sheet piling commenced on Wall 3 close to the Rayman Home. At around 3:00pm, the vibration levels

recorded at the middle of the western boundary of the Rayman Home exceeded the warning level of 8 mm/s. There is no record to suggest work stopped at that point when the alarm warning level was triggered. Mr Doueihi was not sure if he attended the site on 28 April 2020 (he said in cross-examination that “possibly” he was (29/10/25; T 228)). In his affidavit, Mr Doueihi deposed that he attended the site at some stage on 29 April 2020 and spoke to Mr Blake (VMS) and that he asked Mr Blake for the vibration monitoring data. The evidence of Ms Rayman and her husband is that huge vibrations were felt by the occupants of their home while the steel sheet piling occurred: paintings fell off walls and candlesticks fell onto the floor and broke; new cracks became visible in the wall above the front door, and basement area; brickwork in the basement became dislodged; the front door was not swinging on its hinges as the frame or floor appeared to have shifted; large gaps became visible between the dining room floor and wall closest to the worksite and between the external patio and wall closest to the worksite and a large crack appeared along the external western wall closest to the worksite. Scopeview accepts that cracking was observed to the Rayman Home on 28 April 2020 and that the damage was immediate. Similarly, in opening submissions, counsel for Ms Brown said that there was no

dispute that the Rayman Home was damaged as a result of the building activities (specifically, the vibrations) on the Brown Land (27/10/25; T 61-62); however, Ms Brown contends that the harm suffered was the responsibility of Scopeview. Mr Rayman sent an email to Mr Brown at 8:22pm on 28 April 2020 complaining as to the damage to his front door after one day of sheet piling. On 29 April 2020, sheet piling for Wall 3 continued from 7:00am to 3:30pm. Between 10:30am and 12:30pm, Mr Blake of VMS attended the site to investigate the vibration complaints from the Raymans. At around 12:00pm, the vibration levels recorded at the middle of the western boundary of the Rayman Home reached the halt level of 10 mm/s. Again, there is no record of work stopping at that time. At 12:34pm on 29 April 2020, Mr Rayman sent an email to Mr Brown stating that the sub floor brick work had come loose beneath the front door section, the floor needed to be re-levelled and brickwork repaired. Mr Rayman said that the builder had asked them to wait for seven days for everything to settle and that then the builder would make repairs. At around 2:00pm on 29 April 2020, the vibration levels recorded at the rear of the western boundary of the Rayman Home exceeded the halt level of 10 mm/s (a vibration level of 30.8 mm/s being recorded at the site). Again, there is no record of work stopping at that point. At

2:37pm, Mr Blake sent an email to Mr Doueihi attaching the interim report for the vibration monitoring at the adjoining Stockley Land and confirmed that monitoring was currently being conducted at the Rayman Home. It was noted that on the Stockley Land the highest recorded vibration level was 8.2 mm/s, which Mr Blake said was “well below the corresponding vibration damage criterion of 14.6mm/s”. As to the monitoring at the Rayman Land, it was said that there had been no exceedance of the Operator Halt Site Control Level but one observed trigger of the Operator Warning Level (this seems to relate to the position as at 28 April 2020). However, the email noted minor movement on both neighbouring properties (including the front door of the Rayman Home). The email stated: The highest recorded vibration level was 8.2mm/s which was well below the corresponding vibration damage criterion of 14.6mm/s. … there has been no exceedance of the Operator Halt Site Control Level, but there was one observed trigger of the Operator Warning Level. Accordingly, we can conditionally confirm that vibration emissions at both neighbouring properties have been below the relevant vibration damage limits. At 5:15pm on 29 April 2020, Mr Brown sent an email to the Raymans thanking them for agreeing to wait seven days and attaching the 2019 Dilapidation Report. Mr Doueihi’s evidence is that he spoke with Mr

Orr of Meso on 29 April 2020, and that Mr Orr informed him that “[e]verything is fine, we’ve got the vibration reports”. It is not clear when during the day that conversation occurred. On 30 April 2020, sheet piling to Wall 3 continued from 7:00am to 3:00pm. On 1 May 2020, Mr Zimmerman sent an email to Mr Brown asking him to get the builder to attend to the internal damage shown in photos provided to him. Meso completed installation of the sheet piles on 2 May 2020 and the vibration monitoring ceased on that date. Final vibration report On 14 May 2020, VMS sent Scopeview a final vibration report for the “unattended vibration measurements” at the Brown Land during the period 28 April to 2 May 2020. That report noted the vibrations recorded at three monitors on the boundary of the Rayman Land (Monitors Four, Five and Six) and also on the Stockley Land (Monitor Seven). At Monitor Four, the measured maximum vibration level was recorded on 29 April 2020 at 30.8 mm/s. At Monitor Five, the measured maximum vibration level on 28 April 2020 was 8.3 mm/s; on 29 April 2020 it was 10.00 mm/s; and on 30 April 2020 it was 6.7 mm/s. At Monitor Six the respective maximums on those dates were 6.4 mm/s; 5.9 mm/s and 3.0 mm/s. The report noted the exceedance of both the Operator Warning and Halt Level at Location Four and the exceedance of the Operator Warning Level at Location Five, but said

that all vibration levels recorded in the period 28 April 2020 to 2 May 2020 complied with the relevant structural damage vibration criteria set out in Table 2 of the reports. Excavation Bulk excavation commenced on 2 June 2020. As adverted to above, excavation was undertaken by Scopeview’s excavation subcontractor, Rahme Civil. There was some delay due to rain. Scopeview has explained that the process of excavation was, first, to excavate the site to a depth (expressed “reduced level”, or “RL”, the vertical height in metres above a reference point or “mAHD”, metres above the Australian Heigh Datum, which corresponds with mean sea level) of 12.9 metres (RL 12.9) to install the cross-bracing. The bracing consisted of a horizontal waler fixed to the sheet piles and horizontal and diagonal cross-braces. Mr Doueihi deposed that Meso determined when the walers and cross-bracing were to be installed and Meso installed the bracing (see his first affidavit at [115]). Mr Doueihi’s evidence was that, during excavation, excavation depth (“reduced level”, or “RL”) was measured two to three times a day using a laser level mounted on a staff (see his first affidavit at [110]). On 11 June 2020, Meso issued a revised Temporary Shoring Plan and IDC Design and Analysis “to include the RL for dig out to place the bracing”. Onsite meeting – 11 June 2020 On 11 June 2020, there was an onsite

meeting. Photographs were taken of the Rayman Home showing: damage to the front porch; a crack on the internal wall near the front door; the floor moving away from the internal wall near the front door; the floor moving away from the internal western wall; the ceiling moving away from the internal western wall; and cracks to the brickwork in the basement. A written agreement was reached as to the methodology for installing walers and bracing to sheet piling installed at the Brown Land, including that the walers and bracing would be installed without further significant excavation; and that IDC was to certify that final excavation to finished depth could be undertaken safely after the walers and lateral braces had been installed. Excavation Certificate On 12 June 2020, at 11.02am, IDC issued an Excavation Certificate permitting excavation to no deeper than RL 12.70 for the purpose of installing the bracing. Broadly, this was the area where internal bracing was required to support the sheet pile wall. IDC emailed this to Scopeview. Installation of cross-bracing Meso returned to the site to undertake installation of the cross-bracing on 12 June 2020. This was over a month after the sheet piles had been installed but the relevant delay is between commencement of bracing and the end of bracing, since until excavation of the Brown Land below the level of the sheet piles they were

held in place by the soils on both sides of the sheet piles. Meso directed Rahme Civil during installation works for the temporary bracing and requested Rahme Civil’s assistance with moving soil at the site to allow access. Meso’s Internal Daily report for 12 June 2020 records the following actions undertaken by Meso on that day: Went to Scopeview Unloaded shore hire Dug site to height with 6 tonner Started hanging bracing Hyraulic jack broke (... no pin in ram) Jor and Joe arrived with oxy to cut beams Fitter fixed fitting on Ram The reference to digging the site “to height” was to the permitted height of RL 12.7. Scopeview notes that, in the course of digging out the site, it appears Meso dug below RL 12.7, to approximately RL 12.0 or 12.1; and refers to the expert evidence of Mr Manning and Mr Wong (who consider that, in doing so, Meso contributed to deflection in the sheet piles; i.e., that the over-excavation by Meso contributed to the removal of support for the Rayman Land) (see below). The following day, 13 June 2020, Meso was on site from 7:30am to 11:30am to continue installation of the waler. On 15 June 2020, Meso commenced installation of the bracing. Meso directed Rahme Civil during installation works for the temporary bracing and requested Rahme Civil’s assistance with moving soil at the site to allow access. Excavation occurred using a 6-tonne excavator. On 15

June 2020, Meso’s Internal Daily Report recorded: Went to Scopeview site. Finished bracing (what could be done) Operator couldn’t final trim Had no heights. A photograph taken at the time shows the waler in position. No diagonal or cross-bracing was in place. On 15 June 2020, at 2:23pm, IDC issued a second excavation certificate permitting excavation to no deeper than RL 10.90 after installation of the cross-bracing. This was emailed to Scopeview. Further excavation and cross-bracing occurred. Photographs produced by Meso taken on 17 June 2020 show two of the three cross-braces in place. Meso did not complete installation of the cross-bracing until 18 June 2020. Meso’s Internal Daily Report dated 18 June 2020 recorded: Put up 3rd brace. Bracing is now totally finished. Edwin [Edwin Chang, IDC] has sent the last dig permit! By 18 June 2020, bracing had been installed. Pausing here, in Mr Wong’s opinion, movement in the sheet pile wall after excavation to RL 12.7 and delay in installing the cross-bracing likely contributed to the damage to the Rayman Home. In particular, Mr Wong opined that there were additional causes of movement while the sheet piles were in cantilever mode (i.e., upright and unbraced): first, the thinness of the sheets (which did not have the structure or rigidity to retain some pressure) and, second, the delay in bracing by Meso. Mr Wong said that the

probable deflection was 15 mm; Mr Appleyard said it was about 20 mm. Mr Wong says that the deflection likely occurred when the sheet piles were in cantilever mode. Mr Walsh (counsel for Scopeview) accepted that the problem with deflection was not delay in installation of sheet piles but delay between the commencement of bracing and end of bracing (27/10/25; T 73). June 2020 Dilapidation Report On 24 June 2020, a dilapidation report was issued by Ashby Doble Pty Ltd (Ashby Doble), consulting engineers and development managers (the 2020 Dilapidation Report). (Ms Rayman says that the photographs taken in the 2020 Dilapidation Report show defects that were not identified in the 2019 Zimmermann Dilapidation Report.) The 2020 Dilapidation Report notes that some defects existed prior to the works being commenced but the author states that it is difficult to identify these defects from the photographs provided in the 2019 Dilapidation Report so it was decided for the time being to address only new defects that are not mentioned in the 2019 Dilapidation Report. On 29 June 2020, further photographs were taken showing defects not in the 2019 Dilapidation Report. Removal of bracing By 10 July 2020, all bracing had been removed and stacked ready for collection and the basement slab had been poured. Ashby Doble’s opinion On 24 July 2020, Geoff Doble of Ashby Doble wrote a letter which

confirmed that the cause of the defects to the Rayman Home appeared to be consolidation of the foundation material under the footings at the home as a result of the demolition, shoring and excavation work carried out on the Brown Land. Riverwall Constructions quote On 24 March 2021, Riverwall Constructions Pty Ltd (Riverwall) attended the Rayman Home (as I understand it, on instructions from the builder’s insurer) to inspect the damage and prepare a quote to rectify. On 13 April 2021, Riverwall issued a quote for rectification works at the Rayman Home in preparation for sale for a fixed price of $143,639.14. (On 23 June 2021, apparently in the context of discussions in relation to the retaining wall encroachment dispute, Mr Brown sent an email to his lawyer stating that fixing the Rayman Home “might have to happen”.) Rothshire Report and investigations On 7 July 2021, a consultant engaged by Ms Rayman (Rothshire) inspected the Rayman Home and photographs were taken showing some of the damage. Rothshire carried out an onsite inspection to identify the condition of the property and observation of visible defects. On 10 September 2021, Rothshire carried out structural investigative works at the site, described as “an invasive test to confirm that the temporary bracing and whalers had been installed at the time of excavation”. On 30 November 2021, Mr Alexander Kameas of Rothshire

issued a report (the Rothshire Report) which noted that the damage to the Rayman Home was first observed some time prior to 10 June 2020 and that the lateral bracing to the shoring wall was installed on around 13 June 2020. The report stated that the site survey showed that the sheet pile shoring wall was not built as per the design (i.e., Sheet Piling Rev C Plans). Relevantly, the report stated that those plans called for a boundary off set (i.e., a gap) of 0.7 m from the common boundary to the start of the sheet pile shoring wall and that the sheet pile wall was built 400-450 mm offset from the common boundary. The Rothshire Report concluded that what was actually constructed was that at least part of sheet piling was at least 3.392 m closer towards boundary (not a full 0.7 m away). Mr Kameas concluded that the actual deflection of the shoring was in the order of 10 to 20 mm (i.e., in the range of the deflection that would have been expected by Mr Wong (15%) and Mr Appleyard (19%) based on IDC’s design). Scopeview says that the actual deflection observed is consistent with the deflection that IDC ought to have anticipated would result from its design. The Rothshire Report concluded that: 9 CONCLUSION Based on the structural assessment of the shoring wall system and initial design of the shoring system, it was determined that: a. Both initial and ongoing lateral movement of

the shoring system of Neighbouring Site has caused damage to the building on the Site. b. the shoring system of the Neighbouring Site in its current condition is not adequate to withstand the applied loads. c. further damage to the building at the Site is expected in circumstances where the building at the Site is within the zone of influence of the building at the Neighbouring Site. With regard to the causation of the damage to the Site and the structural assessment of the shoring wall system, it was determined that: d. the shoring system in an unbraced condition prior to temporary bracing being installed on 12-13 June 2020 was structurally inadequate for the applied loads; e. the shoring system in the temporary braced condition was structurally inadequate for the applied; f. as a result of the construction of the shoring wall offset to the design location, in its current condition, the shoring wall is not braced or restrained against the potential lateral actions, which as a result may induce further damage to the Site; With regard to remediation of the damage to the Site it is recommended that: g. structural remediation is required to prevent any further damage to the Site (refer to Section 10 of this report); h. remediation of damage to the building including internal remediation, patching, repair and painting of separation, cracks and the like should be undertaken after

structural remediation of the shoring wall is carried out. I note that ultimately Scopeview did not press its objection to the Rothshire Report (27/10/25; T 64) and Mr Kameas was not required for cross-examination. Rothshire prepared a scope to rectify and obtained a quote from the market which totalled $1,202,204.00 to carry out those works. Sale of the Rayman Land In early 2024, Ms Rayman decided to sell the Rayman Land and that cosmetic building works were needed to help maximise any potential sale price. Ms Rayman adduced evidence of various costs incurred in “cosmetic remedial works” (invoices by Techbuild Projects Pty Ltd (Techbuild)) on 31 May 2024 in the sum of $1,072.50, on 30 July 2024, in the sum of $11,215.00, on 24 August 2024, in the sum of $12,604.00 (patching and painting, rendering brick work in wine cellar and removing and replacing mirrors on shaving cabinets, waterproofing to upstairs balcony, drip trays in garage ceiling, Sikaflex cracking around pool area) and on 19 September 2024, in the sum of $2,494.70 (quad around front of skirting due to lifting caused by movement in foundations and preparing and painting quads). On 26 July 2024, Ms Rayman entered into a sales agreement with Sydney Southby’s International Realty to sell the Rayman Land, with an estimated selling price range of $6 million to $6.6 million. Marketing costs of $11,670.00 (including GST)

were incurred. On 12 August 2019, Ms Rayman incurred styling costs (including installation and removal of rental furniture) of $10,615.00 invoiced by Jon Paul Interiors. On 21 September 2024, Daniel Decorations Pty Ltd issued an invoice for further cosmetic remedial works (rendering external work, fixed cracks, Sicaflex, patch up and painting) in the sum of $15,100.00 inclusive of GST. On 23 October 2024, Ms Rayman entered into a contract for sale of the Rayman Land for $7.45 million. The contract of sale contained a special condition advising incoming purchasers of these proceedings. The purchasers were advised to direct all enquiries about these proceedings to Ms Rayman’s lawyer (Mr Ben-Arie). It appears that prospective purchasers were provided access to the property in order to obtain their own structural engineer’s report; and prospective purchasers were made aware of the nature and extent of the defects. The ultimate purchasers confirmed on 1 October 2024 that the NAB had valued the Rayman Land, as part of the loan application, significantly below $7 million and said that this valuation “along with the identified building defects from our builder’s structural report” had formed the basis for their initial (lower than $7.45 million) offer, including changed market conditions and economic uncertainty; and they said that their builder had assessed costs for building

rectification in the home at a minimum cost of $500,000.00. On 4 October 2024, they advised that they had absolutely no funds set aside for any necessary and planned rectification works. (Ms Brown says that this has no evidential weight; that it does not identify the rectification cost (whether old or new) or estimate; nor how the amount is calculated but she does point out that the letter establishes that a bank valuation was well below $7 million.) On 27 February 2025, completion of the sale occurred. Lay evidence I summarise the lay evidence as follows. Ms Rayman Ms Rayman affirmed an affidavit on 30 January 2023. Ms Rayman deposed, among other things, to what occurred on 28 April 2020 when vibrations from the sheet piling caused damage to the house (at [50]-[51]) and to the fact that she was not given any notice of the heavy machinery works (at [50]; [53]). Ms Rayman also deposed to the fact that she did not receive any geotechnical report (at [77]), structural engineering report (at [81]) or notice of commencement of excavation (at [84]) prior to 24 April 2020 (referring to Condition 26 of the Development Consent). A number of parts of Ms Rayman’s affidavit (addressing the opportunity she asserts she was denied to protect her home from possible damage by reason of the fact that reports and notices were not provided prior to 24 April 2020) were not read following objections

thereto by both defendants pursuant to s 5D(3) of the Civil Liability Act. (This is relevant when considering the later submission by Scopeview to the effect that there was no evidence that the Raymans would have taken steps to stop the works had notification been made prior to 24 April 2020 (31/10/25; T 441.20).) In cross-examination by counsel for Ms Brown, Ms Rayman accepted that she had generally left her husband to deal with the building activities when the Rayman home was renovated in 2010/2011 (28/10/25; T 88). Ms Rayman did not remember that Mr Zimmerman had done the engineering drawings for that renovation and did not really have any knowledge of those drawings (28/10/25; T 88). Asked about the lower ground floor, Ms Rayman agreed that this was a storage room where her husband had kept wine for sale as part of his (then) business (28/10/25; T 90). Ms Rayman said that she did not frequently go down to the basement (it was her husband’s “domain”) (28/10/25; T 90.36). Pausing here, the lower ground area was referred to from time to time in the course of the evidence as the basement. It comprised two parts separated by a wall – a storage room at the back, where various articles such as suitcases were put, and an area in the front where Ms Rayman said that the wine was kept and where there was a freezer (28/10/25; T 90-91). Ms Rayman said that to her understanding the

basement was “perfectly fine structurally” (28/10/25; T 94.30). Ms Rayman said that prior to 28 April 2020 there was no mould in her home (28/10/25; T 100) but agreed that there was mould in the garage ceiling (the top left corner when looking at the house from the street) prior to that time and that this was to be addressed as a maintenance issue (28/10/25; T 101). Ms Rayman left this issue to her husband and father (28/10/25; T 101-102). Ms Rayman agreed that the mould had become worse over time (28/10/25; T 102) and that ultimately the mould deteriorated to the extent that the ceiling was removed (28/10/25; T 106). Ms Rayman did not remember if she was shown the documents that were sent by Mr Brown on 24 April 2020 in relation to the excavation but knew that her father had made an enquiry to Waverley Council because there was a concern about sheet piling; and she said that her father and husband had concerns about that issue (28/10/25; T 107-108). Ms Rayman agreed that in her mind there was an immediate connection between the vibrations and the damage to her home (28/10/25; T 110). She described this as a traumatic time and said that she was in a panic (28/10/25; T 107; T 110). Ms Rayman said it was possible that there was a discussion with her father or her husband about stopping the vibrations and she thought that the solution was that they needed to get someone in to have

a look at what was going on (28/10/25; T 109-111). Ms Rayman did not think they had thought to call Mr Brown but accepted that she might have had his phone number (28/10/25; T 112). Asked about the back verandah, Ms Rayman accepted that (prior to 28 April 2020) it had deteriorated in its condition; the wooden support under the slab of the verandah had become exposed and the wood had started to deteriorate; that there was a waterproofing issue on the patio so the wood needed to be replaced; she could not remember how long that had been the case; but that it needed to be attended to and “that’s why we were repairing it” (28/10/25; T 112-113). Ms Rayman was cross-examined as to a paragraph in her affidavit ([104]) that had not been read, in which she referred to discussing with her husband the possibility of selling her home because of the potential buoyant real estate market at the time (thus reading back into the evidence the paragraph to which objection had successfully been taken – see 28/10/25; T 113-114). Asked whether she had invested in the area because of the potential buoyant real estate market in North Bondi, Ms Rayman said that was not the only reason why they bought the house (28/10/25; T 114.28). Questioned about whether it was ever her view that the house was in such a condition that it had to be demolished and rebuilt, Ms Rayman said that she was not sure how it

was going to be repaired or what to do “because this was our investment” (28/10/25; T 119). Mr Rayman Mr Rayman affirmed an affidavit on 30 January 2023. Mr Rayman deposed that, where he sent an email in his own name relating to the Rayman Home he did so with the agreement of his wife, and that he considered himself a joint owner of the Rayman Home (at [7]). Mr Rayman deposed to the receipt of documents from Mr Brown on or around 24 April 2020 (at [25]) and to his concern that the proposed sheet piling was too close to the boundary wall (at [26]). He also deposed to his experience of the vibrations and observation of the damage sustained within minutes of the sheet piling starting (at [34]-[37]). Paragraphs of his affidavit going to the lack of opportunity to seek professional advice and as to what he would have done had he received professional advice as to the best way to preserve and protect the Rayman Home were not pressed following objection by the defendants thereto. In a supplementary affidavit affirmed on 5 December 2024, Mr Rayman deposed to his wife’s entry into a contract for the sale of the Rayman Land on 23 October 2024 and to the costs incurred in relation to that sale. Mr Rayman deposed that he and his family would not have had to incur any of these costs had they not been forced to sell the Rayman Land as a result of the financial constraints which the

litigation had placed upon them and the failure of the defendants to take due care in carrying out the construction works, excavation and ancillary works at the Brown Land (at [9]). In cross-examination by counsel for Ms Brown, Mr Rayman said that Mr Weinberg had introduced him to Mr Zimmerman when the Raymans renovated the Rayman Home in 2010 (28/10/25; T 124). He met Mr Doueihi once or twice around the time of the excavation (28/10/25; T 125). As to the basement where the wine was stored, Mr Rayman said he went there once or twice a week; probably once a week into the storage room (28/10/25; T 125). Mr Rayman said that Mr Weinberg had explained to him the difference between sheet piling and contiguous piling; he said that his conversation with Mr Weinberg was to try and understand if the Browns were going to use a sheet piling system as they were not clear about that but that from his understanding sheet piling “was not going to be a good system for us” (28/10/25; T 126-127). Mr Rayman said that he only knew that sheet piling was going to be used when he received the documents sent by email by Mr Brown on 24 April 2020 (28/10/25; T 128). He said that he had a discussion with Mr Weinberg about that; and that they were concerned about sheet piling and its proximity to their boundary (28/10/25; T 129). Mr Rayman said that after receiving the documentation “we were trying to

ascertain what … we needed to do and if we needed to engage any … professionals to try and help us understand” (28/10/25; T 129). Mr Rayman believed that Mr Weinberg was following this up but did not recall what he did (28/10/25; T 129). Mr Rayman left the concerns about sheet piling to Mr Weinberg to deal with (28/10/25; T 129-130). Mr Rayman was at home when the sheet piling commenced and said that he assumed the damage to his home was a result of the vibrations (28/10/25; T 130). He agreed that the most certain way to stop further damage was to stop the vibration (28/10/25; T 130) and he contacted Mr Brown that day about the damage to the front door (28/10/25; T 130). Mr Rayman agreed that he did not have a discussion with Mr Brown as to his concerns about excavation close to the boundary but said that they were trying to get information from Mr Brown as to what they were going to use (i.e., in terms of the shoring system) (28/10/25; T 133). Mr Rayman did not recall that there was mould in the garage prior to 28 April 2020 (28/10/25; T 136); he said that the front balcony (over the garage facing the street) was not draining properly and there was a failure of waterproofing on the back balcony (which they were repairing prior to 27 April 2020) (28/10/25; T 137-138). As to the Riverwall quote, Mr Rayman said that he could not understand it and Riverwall did not return his call

to discuss it (28/10/25; T 141). Mr Rayman said that Riverwall was sent by Scopeview’s insurers to do the quote (28/10/25; T 141). Mr Weinberg Mr Weinberg was a property developer and project manager in South Africa for about 37 years before he emigrated to Australia (see his affidavit affirmed on 24 January 2023 at [12]). Mr Weinberg deposed, among other things, to his observation of the Rayman Home during the period from 2010 to early 2020 (saying that he did not observe any significant damage but noting water staining on the ceiling of the garage which he assumed was the result of water ingress, from which he assumed that waterproofing on the balcony had failed at some point – see [29]-[30]). Mr Weinberg also deposed to his observations on 28 April 2020 and to events after that date. Mr Weinberg did not file any affidavit in response to the affidavit evidence of the Browns (in particular, as to the conversation to which Ms Brown deposed in which Ms Brown says he told her that if the Browns went ahead (with the works) they would build his daughter a new house – see [327] below). In cross-examination by counsel for Ms Brown, Mr Weinberg confirmed that he had contacted Waverley Council in March 2020 because he understood that the shoring system was going to change (28/10/25; T 146). He said that Mr Zimmerman called him and told him that there was a change in the shoring system

and that Mr Zimmerman said that it was going to cause problems (28/10/25; T 146). Mr Weinberg said that he did not ask Mr Zimmerman for the documents and did not try to locate the documents (28/10/25; T 146-147). Mr Weinberg recalled seeing the documents sent by Mr Brown on 24 April 2020 (28/10/25; T 147). He said that when he received the documents he had a discussion with Mr Rayman and said to him that he had contacted the certifier to say that he had been advised that the system was not adequate and the certifier needed to investigate (28/10/25; T 147). Mr Weinberg said that he was not aware, on the Friday (24 April 2020), that sheet piling was going to commence the following week (28/10/25; T 148). Asked about the conversation to which Ms Brown had deposed in her affidavit (see below), in which she says Mr Weinberg said to her that the Browns would be buying his daughter a new house, Mr Weinberg recalled that Ms Brown had come to his house one day and they had a conversation (28/10/25; T 148). He disputed her account of the conversation but accepted that he had not disputed it in an affidavit (and he was not asked what his version of the conversation was) (28/10/25; T 148). Asked about staining on the plasterboard ceiling in the garage, Mr Weinberg said he assumed it was the result of a waterproofing failure (28/10/25; T 146). He agreed that the condition of the Rayman Home

was accurately depicted in the 2019 Dilapidation Report (28/10/25; T 149). Asked about the damage to the home when the sheet piling started, Mr Weinberg said that he assumed that one way to stop further damage would be to stop the sheet piling (28/10/25; T 149). He said that he called the certifier that day and the certifier said that he had not given permission to start (28/10/25; T 149). (This presumably was a reference to BCA or Ms McSeveny – the former certifier since Mr Weinberg’s email of 24 April 2020 was sent to her and there is nothing to suggest Mr Weinberg was aware of Mr Chidiac’s involvement by then.) Mr Weinberg agreed that he had not included reference in his affidavit to such a conversation with the certifier. Mr Weinberg agreed that he did not speak to Mr Brown (28/10/25; T 149). Mr Brown Mr Brown’s first affidavit was sworn on 25 July 2023. In that affidavit, Mr Brown deposed that: emails written by him in this matter were on the express instructions of his wife (at [2]); at all material times he was instructed by his wife to attend to the administration of the proposed new build and demolition of the existing building on the Brown Land (at [3]); unless otherwise stated, he acted on behalf of his wife in relation to the building and construction applications, using MASQ (at [4]). At [18], Mr Brown deposed that he did not read or understand all the reports

submitted to the Council (for the development application). At [42], which was read only as an assertion, Mr Brown deposed that, on 20 February 2020, Mr Doueihi advised him and the PCA, via email, that he had notified all of the neighbours. In context, this appears to refer to notification of demolition. From [48], Mr Brown addressed the issue of sheet piling. At [48], he deposed that nearing the second stage of the project in early March 2020, he had a discussion with Mr Doueihi who advised him that he was changing the method of piling. He deposed that Mr Doueihi said that: Due to the current situation that the PC has taken so long to get all the documentation sorted out, we are running behind our schedule, and we are going to use a different piling method that is more modern technology and much faster and it’s going to be at the same price. Mr Brown also deposed that Mr Doueihi said that he had done this a number of times and “just leave it to me” (at [48]). Pausing here, the timing of this conversation (i.e., as early March 2020) is not consistent with the fact that the Contract itself provided for progress payments that included payment referable to sheet piling but in any event it is clear that by no later than 17 March 2020 Mr Brown’s attention had been squarely drawn to the distinction between sheet piling and contiguous piling (see his email on 17 March 2020 to Mr

Doueihi). This conversation is also inconsistent with the submission made (for Ms Brown) that there was no “change” but only ever a recommendation in relation to the piling system to be used (31/10/2025; T 419). At [56], in a paragraph read only for the fact of the conversation not its truth, Mr Brown deposed that Mr Doueihi advised him in early March 2020 that he had received engineering advice and that the sheet piling system was his responsibility and under his control using the best possible methodology. This seems likely to have been a reference to Mr Orr’s discussion with Mr Doueihi whenever that occurred. At [98], referring to the email he had sent to Mr Doueihi on 1 March 2020 as to whether he could send to Mr Stockley a copy of the geotechnical report and details of bulk excavation in response to Mr Stockley’s query, Mr Brown deposed (as referred to above) that he also “telephonically ask[ed]” Mr Doueihi whether he could send the documents to the Raymans and that Mr Doueihi said “no, he would take care of it”. As noted above, at [18] of his first affidavit, Mr Brown deposed that he did not read or understand all the reports submitted to the Council (for the development application). Cross-examined as to this, Mr Brown gave the following evidence. As to the Martens Report, Mr Brown said that he did not read it; that he “glanced through it” but that it was too

complicated to understand (28/10/25; T 151). As to the Development Consent issued on 27 February 2019, Mr Brown said that he read it “most probably” (28/10/25; T 152). As to the Modified Development Consent issued on 25 September 2019, Mr Brown said that he definitely read this document and agreed that he understood it was an important document (28/10/25; T 153). Mr Brown understood what a construction certificate was and understood in 2019 that he needed a construction certificate before he could start works (28/10/25; T 154). Asked whether he took it upon himself to ensure that the development conditions were satisfied, Mr Brown asked me whether he could “intervene” and then said that he did not do this – that for a construction certificate “apparently you needed … thousands of documents”; that he employed MASQ “to get it all together” and that they “basically did the work” to arrange this and “they put it all together and sent me numerous bills to pay all these people” (28/10/25; T 154-155). Mr Brown described his role as being “kind of … getting this stuff together, making sure that they do it on my behalf, which they charged me for” (28/10/25; T 154-155). Pausing here, this is one of a number of instances where Mr Brown appeared to argue his wife’s case; here, describing his role in effect as a paper pusher. Asked whether his role extended in part to ensuring compliance

with some of the conditions in the Development Consent, Mr Brown answered “[i]t was a while ago but I’m pretty sure, yes” (28/10/25; T 155). Mr Brown accepted that he had some role to perform in satisfying Condition 6 in relation to owner contributions (28/10/25; T 155). Asked whether he understood that Condition 13 required a geotechnical report to be provided to certain people (which Mr Brown accepted would include Ms Rayman), Mr Brown initially said that he could not recall it but then said “I did understand it. To the best of my knowledge - yeah, I did - I do - now that I’ve read it I kind of understand it a bit better” (28/10/25; T 156). Similarly, Mr Brown confirmed that he read Condition 14 back in September 2019 (28/10/25; T 156). He said that he did not understand back in 2019 what the term “principal certifying authority” meant, saying, “[a]t the time I didn’t understand who that person was. I figured - I, I did find out afterwards that that’s the person that MASQ was compiling all these documents for” (28/10/25; T 156). Mr Brown accepted that during the course of the project he gained an understanding that the term “PCA” was the certifier (28/10/25; T 156). Taken to Condition 26, Mr Brown’s evidence was that he understood at the time what excavation meant and he understood the requirement in the document to give adjoining owners at least seven days’ notice before

excavation occurred below the base of the building (28/10/25; T 157). Mr Brown added that (28/10/25; T 157): I did, however the builder had - I’d signed a contract with the builder. And I did bring this up to him on numerous occasions, your Honour, and he told me he will take care of it. And I have documentation, or emails, to and from, from the neighbour - from not the neighbour, sorry, from the builder - where he said he has taken care of it. So, sorry to blow off steam. Again, Mr Brown here seemed to be arguing the case. Mr Brown accepted that the reason he raised this (i.e., notification of the neighbours) with the builder on numerous occasions was because he understood it was an important issue (28/10/25; T 157). Taken to the 2019 Dilapidation Report, which he understood MASQ had asked Mr Zimmerman to prepare, Mr Brown again seemed keen to argue his wife’s case or at least to emphasise his better understanding of matters now than back in 2019, saying, in response to a question as to whether he understood what a dilapidation report was at that time (28/10/25; T 157): I’ve learnt a lot through four years of this, beginning of this trial, so my knowledge then wasn’t as good as my knowledge is today. So at the time it was just another task to tick off and get going, your Honour, and I relied on Ted [Quinton] and MASQ Architecture to do the job I’m paying them to do. So at the

time I wasn’t quite sure what it is, but as time has gone by, I am extremely familiar with it. Mr Brown said that he did not understand what a shoring system was (cf his evidence that Mr Doeuihi had explained the Contract to him before it was signed) and did not understand to what “contiguous piering and strutting” referred (28/10/25; T 158). Mr Brown agreed that he had asked Mr Doueihi for a quote and had made available to him on Dropbox certain documents which he was “guessing” were the documents MASQ had completed to get the Development Consent (28/10/25; T 158). Mr Brown agreed that he read the quote issued by Scopeview on 19 December 2019 (albeit saying “[n]ot carefully, but I had read it), and he then volunteered that “the price was right” (28/10/25; T 159). Asked whether one of the most or more important aspects in his decision making with respect to this development was the price, Mr Brown gave the somewhat non-responsive answer that “[o]ut of the quotes that we had got already, this one was, this was the cheapest” (although he had earlier appeared to accept that this was the first time or one of the first times that he had been given a price for the project) (28/10/25; T 159). Mr Brown was cross-examined as to the reference in the quote to shoring and excavation. He said, qualifying his earlier answer that he did not read the quote carefully, that “Okay, let me

rephrase this. Sorry, your Honour. I did read this document. I did understand this document. 100%” (28/10/25; T 159). Mr Brown accepted that he read the information in the quote about demolition, shoring and excavation and concreting and that he saw that the builder, under “shoring”, proposed to install “continuous [sic]” piling (28/10/25; T 159). Mr Brown said that he did not understand to what that referred at the time (28/10/25; T 159). When it was put to Mr Brown that he certainly understood that this “continuous [sic] piling” was not going to undermine the Rayman Land, because that is what the document was saying, Mr Brown (in another non-responsive answer) said, “I didn’t understand how buildings worked. I had employed someone to take a piece of property that we bought and put a house on it” (28/10/25; T 159.31-35). Mr Brown agreed that he was content with the $2.25 million price that had been quoted (28/10/25; T 159). Mr Brown estimated that in the Dropbox provided to Mr Doueihi there would have been more than 20 documents and he accepted that, on 15 January 2020 at 5:01pm, he had emailed to Mr Doueihi two of the documents extracted from the Dropbox (the Martens Report and an acid sulphate soils advice) (the email saying “Cameron, I found this report as well”) (28/10/25; T 160-161). Mr Brown was unable to say why he had emailed these documents to Mr Doueihi. Mr Brown

presumed that Mr Doueihi had requested them, saying that (28/10/25; T 160): He must have requested them. So my problem with the builder was that if I emailed them, he phoned me. He called me back. He never corresponded in writing through this whole process. If I can find five emails from him, it’s a lot of emails. So whenever I sent him an email, he’d pick up the phone and call me, your Honour. So I’m not sure five years ago for what reason I sent them, but they must have been important, otherwise I wouldn’t have sent them to him, your Honour. This was an example of a tendency of Mr Brown, to my observation at least, of “guessing” or speculating as to various things – in other words, seeming to be talking off the top of his head without careful consideration. That became even more apparent during cross-examination when the hearing was reopened (see below). Taken to the Martens Report, Mr Brown then gave this evidence (28/10/25; T 161): A. I’ve got this document, I’ve glanced at this document. To any layman this is illegible stuff that is totally meaningless to me. Sorry, sir. [Pausing here, this answer is an example of Mr Brown, to my observation, attempting to minimise his understanding of the relevant documents or understating the understanding he did have. While much of the technical detail of the Martens Report may well have been incomprehensible to a lay reader, the

recommendation not to use driven or sheet piles due to the adverse impact of vibrations causing a risk to neighbouring properties would in my opinion be clearly comprehensible to the average lay person even if that person does not know what sheet piling is – the lay reader must understand by this that a clear warning is there being given against the use of whatever sheet piles were.] Q. Come back to page 159 and your email, “Hi Cameron, found this report as well”. You must have read the report? How else could you have found it? A. This, this report scared me, because I never understood, or didn’t kind of know what it’s about. To this day. To this day, yeah, I must be honest, I don’t understand that report. I don’t know what it was for. I do know that today a geotechnical person is someone who digs holes in the ground and pulls out soil samples, but what their purpose in the build is, I couldn’t really tell you. Q. Is it your evidence you don’t understand this document now? A. Even today, no. Q. That’s your evidence, you do not understand the content of the document at page 14 sitting here today? A. I, I, I, no, no. There’s another couple of documents like this that has so much jargon in them that they are meaningless to me. [Again, this seemed to me to be a broad overstatement of the incomprehensibility of the documents and it is contradicted by Mr Brown’s own communications

such as him highlighting the reference in the 2019 Dilapidation Report to contiguous piering and strutting – see his 1 March 2020 email to Mr Doueihi.] Queried about whether a statement in the report as to the limit of excavator size to 8 tonnes was complicated, Mr Brown accepted that it was not but was insistent that that was not his business (28/10/25; T 161). Asked whether he understood that excavators can come in different sizes, Mr Brown said (28/10/25; T 161): A. If you - I have not read that paragraph. This is not something that I would read. This is something that MASQ Architecture got in order to get the DA documents approved. I was just the paper pusher, and I passed this documentation onto the relevant people. And now that’s the first time you’re bringing it to my attention about an excavator, sorry. Q. Your evidence sitting there today is you don’t understand the document that starts at page 14, correct? That’s your evidence? A. Today I know a little bit more of what I’ve heard but at the time, no. Mr Brown was then taken to his email of 9 April 2020 to Mr Quinton in which he stated “I want to use the sheet piling” and requested that Mr Quinton contact Mr Zimmerman to remove perimeter piling from the drawings. Mr Brown’s immediate response was that he fully understood it and he had a “good explanation” (28/10/25; T 161). There was then the following exchange

(28/10/25; T 162-163): Q. Isn’t the first thing you say at the bottom of page 245 [the 9 April 2020 email] that you want to use sheet piling? A. 245, correct. Q. Then you go on to make a request at the top of the next page for your architect to contact Mr Zimmerman to remove perimeter piling from his drawings? A. Correct, 100%, however, sir, your Honour, Cameron, the builder, put a lot of pressure on me in order to write this email to Ted to get this information done by Martin. So this was a request from Cameron. Again don’t have it in writing but he asked me if I could get this done for him and I said, “Sure. I’ll try.” He first asked me to ask Martin Zimmerman, the engineer, to do it which I called him a number of times. He never got back to me. I then spoke to Ted and asked Ted if he, he who had more power over Martin to perform this function because the builder wanted to change the piling methology (as said), your Honour. So that’s why this letter sounds very stern with authority from me where it’s requested from the builder-- [my emphasis] Q. You sent this email? A. --and the builder will vouch for that. … Q. You were asking Mr Zimmerman to be approached to remove perimeter piling from his drawings; can you see that? A. Correct. Q. So you must have understood what the drawings called for, correct? A. (No verbal reply) Q. If you asked him to remove something from them you

must have understood what they conveyed? A. Sorry, I don’t understand that, your Honour. So, so go, go a little slowly with what you’re saying. I’m requesting from Ted, the architect, to ask Martin if he can remove the, whatever piling - I don’t-- Q. Perimeter piling from his drawings. A. Perimeter piling and replace it with sheet piling. Q. That’s not what this email says. This email says, “Do you think Zimmerman could remove the perimeter piling from his drawings?” Do you see at the top of the page there? A. “Do you think Zimmerman could remove the perimeter piling from his drawings?” okay, it does say that, your Honour. Q. You are referring to something being removed from drawings, correct, in this case the perimeter piling? A. Correct. Q. So you must have understood what the drawings conveyed? A. Not, not quite but I did make the request because this is how the builder put it to me that that’s what he needed to do. Q. Can you see where you refer to the geotech report from Mr Martens? A. “Geotech Martens say they don’t recommend it but they say” - correct, yes. Q. So not only do you confirm that you have read the Martens report, you were actually conveying what your understanding of it is, aren’t you, in this email? A. Yeah, I didn’t think it was that report that you showed me on page-- Q. How can it be that sitting there today ten minutes ago-- A. Yeah. Q. --you gave

evidence before her Honour that you don’t understand the document at page 14 when you had an understanding of it back on 9 April when you sent this email? A. How did I? Where did I get that information from? Sorry, your Honour, but never in my time did I ever communicate with Martens, however, they are willing to change their report. Where would I get that from? I don’t even know who Martens are. [Again, this last sentence seemed to be an “off the top of the head” response.] Q. Sorry, your evidence is you don’t know who Martens; is that your evidence today? A. Well, I must know because I’ve written this here but I can’t, I can’t recall it. … Q. I’ll ask you again, in light of this email, do you stand by your previous evidence that you do not understand the content of the document that is at page 14 of the bundle in front of you? A. I obviously do understand it and I apologise if I said I don’t understand it. I didn’t read it thoroughly but I must have picked up something along those lines. Asked about the statement in the Martens Report that sheet piling was not recommended, Mr Brown gave a non-responsive answer (28/10/25; T 163): Q. You understood at the time back when you read it that it actually gave a caution, and I’ll take you to it, at the top of page 25. It says, “The use of driven piles and sheet piles is not recommended during to adverse vibration impacts on

neighbouring structures/infrastructure.” A. There was more to this document than what you see here. … Mr Brown then suggested that someone had taken a page out of the Martens Report and highlighted it and said that that is where he got the information from but he was not sure who sent the extract (suggesting that it could have either been Mr Zimmerman or the architect (i.e., Mr Quinton)). There was then the following exchange (28/10/25; T 164): Q. It’s all right. I’ll take you to 145, which is the start of the quote and the date of the quote is at page 147 and the reference to “continuous piling” is at page 149. A. Okay, so the builder in his quote says continuous piling. Q. You understood that was something different to sheet piling? A. I do know now. That last answer is somewhat disingenuous since it is apparent from the contemporaneous documents that, whether or not Mr Brown knew or understood at the time the difference between sheet and contiguous piling, and whether or not this email was sent at Mr Doueihi’s request, Mr Brown must have known at the time that there was some difference between the two since he is asking for changes to be made in the documents to reflect that. Mr Brown accepted that he understood that the contract with Scopeview was a very important document (28/10/25; T 164). He said that he did not know why he sent the Martens Report to Mr Doueihi six days

before the Contract was signed, saying that he guessed it was “something to do with the piling” (28/10/25; T 164-165) (“I don’t know why I sent it but I sent it. I presume something, something must have triggered me to do so and I guess it’s got something to do with the piling”). (Another example of apparent speculation by Mr Brown.) Mr Brown was then asked (28/10/25; T 165): Q. Is that because you had discussions at the time with the builder about the piling, that is, on around 15 January? A. Possibly. I, I, I can’t remember the dates but prior the piling was a decision he made to do maybe March, April. I can have a look when the communications started but, yeah, he decided to do that. So we - in January it seems to be a little bit early but I’d have to verify those dates. I can’t recall. Asked whether him sending the PDF of the Martens Report to Mr Doueihi on 15 January 2020 was because, during the period 19 December 2019 when he received the quote to 21 January 2020, he had discussions with the builder and he agreed to change the piling to sheet piling, Mr Brown said “I must be honest, that’s - sir, that’s the time I’ve actually seen that in that, in this contract. I’ve never noticed that but well spotted” (28/10/25; T 165). Mr Brown said that this was “quite amazing” and explained that the important things were obviously the payments to the builder and progress payments

(28/10/25; T 165). After questioning Mr Brown as to the exclusion of demolition from the contract (which Mr Brown said he did not notice at the time (28/10/25; T 166) – though he himself had requested the exclusion of demolition in the context of the communication about owner contributions – see above and see Mr Brown’s email dated 30 January 2020 to Mr Doueihi) and the fact that no provisional sums were included in the Contract, it was put to Mr Brown that he was downplaying his level of sophistication (28/10/25; T 167): Q. Can I put a general proposition to you, sir, that you are downplaying your sophistication and that you understood the contract that you signed and you understand the terms of certain documents I’ve taken you to today, notwithstanding your evidence that you don’t understand those documents? A. You can say, you can say whatever you like, I’m trying to be honest here and trying to work out the stuff from years and years ago. But if you say these are provisional sums and they should be in there you’re 100% correct, they should be in there. But due to the fact that I am - I have employed MASQ Architecture to get all these documents together, I’ve contracted a builder to build the house and take control of the property and do what he has to do. I’m relying on these professional people to do their job, relied on - when I sent this document to David [his solicitor,

Mr Rod] to check I relied on his expertise to see whatever I’m signing is correct. But, you know, if you want to pin me as guilty so be it. Taken to his email of 1 March 2020 to Mr Doueihi, which referred to a telephone conversation with Mr Stockley, Mr Brown accepted that he had extracted Conditions 13 and 14 of the Modified Development Consent and accepted (“100%”) that he had turned his attention to those conditions (28/10/25; T 168). When it was suggested that he had had a discussion with Mr Stockley about those conditions, Mr Brown said that (28/10/25; T 168): A. These were the conditions in the DA that we kind of had to adhere to and they were playing on my mind and I was glad that Lee Stockley requested these because I could finally send them off to him. [Pausing here, there is nothing in the contemporaneous documents to suggest that the notification conditions were playing on Mr Brown’s mind at that time nor as to why he needed a request from Mr Stockley before he could send them.] Q. They were playing on your mind, were they not, because you knew you had to comply with these conditions? A. Correct. Mr Brown accepted that he had coloured part of the email to Mr Doueihi in red and had emboldened part of the text to convey that it was important and had done so again for Condition 14; and also accepted that he was conveying to the builder that it was important from his

perspective that the owners of adjoining premises be notified (28/10/25; T 168-169). It was put to Mr Brown, and he accepted, that he was taking responsibility for the satisfaction of Conditions 13 and 14 at least with respect to Mr Stockley (28/10/25; T 169). However, Mr Brown added that (28/10/25; T 169): A. … But if you had a dig back in a couple of previous emails - sorry, your Honour, you would find that I have asked Mr Doueihi, Cameron, Scopeview which documents and whether these documents were okay to send to the relevant people. I actually did ask him that we should send it to Errol and Avron. But for some reason he told me he would take care of it. Q. Where is that in your affidavit, sir? A. I’m just telling you. This might not be in my affidavit but I’m just telling you the story, your Honour. Pausing here, this is the first reason given by Mr Brown for not sending the documents to the Raymans at that time – that Mr Doueihi told him he would take care of it. When it was put to Mr Brown that there was nothing stopping him from sending the information to Ms Rayman at the time, a second reason was given, namely that Mr Doueihi told him not to send it (which is the subject of the disputed evidence that led to the reopening of the hearing) (28/10/25; T 170): A. Cameron told me not to send it to Errol and Avron. I wanted to offload it all in one email. In fact, I could have

just CC’d them on the same thing, really and just change their dilapidation report around because the documentation is the same. He told me not to send it to them and he would take care of it himself. Q. When you give that evidence that just is not truthful evidence, is it? A. Are you joking? Q. You’re here to answer questions, sir, not ask them. I’ll repeat it again. When you give that evidence you’re not being truthful are you? A. Im being definitely truthful, your Honour. Ask Cameron what documentation I can send to the neighbours. I said I’ve had Lee Stockley - I don’t know if he phoned me or text me, however he communicated with me, asking for these things and can I send him these documents? And he said I can send them to Lee, and he would take care of - I said, “Can I send them to Errol and Avron?” and he said no, he will take care of it. The last exchange, questioning Mr Brown’s truthfulness in giving the evidence that Mr Doueihi had told him not to send the documents to the Raymans seems to have been the central motivation (at least on Mr Brown’s part) for the reopening application – as I explain in due course. Mr Brown referred to the fact that the Contract had been signed by that stage and said “[y]es, so in other words, Cameron was in charge of the property at the time, and that’s why I discussed it with him prior to doing the sending” (28/10/25; T 170). Counsel for

Ms Rayman put to Mr Brown that the real reason that he did not send the documents to Ms Rayman on 2 March 2020 was because he did not want them (presumably, the Raymans) to know what he was doing (28/10/25; T 170-171). Mr Brown denied this. Objection was taken by his counsel to the question (although by then it had already been answered – and denied) on the basis that there was no basis laid for this (28/10/25; T 170-171). I did not reject the question on the basis that, if it were going to be submitted that this was the inference that should be drawn from the communications at that time, I considered it was only fair for Mr Brown to have an opportunity to respond to that. Mr Brown’s more lengthy denial was as follows (28/10/25; T 171-172): A. That’s not true. That is not true. So, this is coming to mind, right, this is a long time ago. I asked Cameron if I should send Errol and Avron the documents. He said no, he will take care of it. But I’ve got a - so this is just a feeling now I have, right, like I don’t know if it’s in my affidavit or not, but Cameron was in the middle of, I think changing from the one piling to the other. So I’m guessing if he sent the documents that were, that Zimmerman did, yet he got a whole new team of guys involved, so if you see there was a changeover of geotech guys, all these RDC [sic; IDC] and everybody changed midstream, or prior to the start

of, of, of this project. Cameron was in the throes of doing that. And perhaps he didn’t want to send them documents that might have - I don’t know what’s in these documents - but that might have given them the wrong information. Because it was he, Cameron, Scopeview, that decided to change this piling from the one to the other. And, yeah. [Again, an example of speculation as to the reason for something but, interestingly, suggesting a reason for Mr Doueihi to have wanted the documents to be sent to the Raymans that could equally have applied to Mr Brown and which was the thrust of what had been put to him – about which complaint was made that no foundation had been laid. See also the submission made for Ms Brown that Mr Doueihi was deliberately concealing the fact of sheet piling from the Raymans.] … A. I’m sorry if I sound terrible, but that’s how it was. … A. And I was concerned about this piling stuff. Q. Sorry, you were concerned about the piling? A. I was, correct. Q. Did you hold that concern as at March 2020? A. I was, that’s why I sent these documents highlighted in red and bold that Council had approved all those documents, and a couple of the, can I say experts, suggested not to use that piling. So did Zimmerman suggest not to use it, but he didn’t say it’s not allowed. He said you can use it, but, you know, but he doesn’t suggest it. And I think in that report that

you were quizzing me on earlier with the geotech, I think they also said something along those lines, that you could use it, but they don’t suggest it. [Again, an example of arguing the case. Moreover, there is nothing in the contemporaneous documents to suggest that Mr Brown had any concern at the use of sheet piling; rather, as the communications to Mr Doueihi and Mr Quinton reveal, Mr Brown was positively asserting an intention or a wish to use sheet piling notwithstanding the recommendation against it.] Q. Did you take that to mean that it could be done but it was a riskier exercise? A. I, I was told by the builder that it’s a more modern methodology of piling, okay. Quicker. It costs more, but he’’ll do it for me at the same price. Questioned again as to the email of 9 April 2020 in which Mr Brown said “I want to use the sheet piling”, Mr Brown said that this was “an instruction from, from Cameron” (28/10/25; T 172). Mr Brown accepted that this was an email he sent but there was the following exchange (28/10/25; T 172-173): Q. You made the decision to use sheet piling, correct? A. No. He made the decision because he wanted Martin Zimmerman to change his drawings. Q. You agreed to the use of sheet piling, correct? A. Eventually I must have, yes. Q. And one of the reasons that you’ve just said is because it would be quicker? A. Not in my favour. I had a fixed contract with

the builder, whether it was quicker or shorter made no difference in my life. I was paying him one amount of money. Q. Then why did you agree to it? A. So, sorry, your Honour, why did I agree to it? I agreed to it because you asked me earlier how come there was a change in PCA people, right? The PCA, Tiana I think her name was, that was handling the project took an exceptional amount of time to put all these documents together. And I think Cameron wanted to get going. Every time we said, “what else”, you know, “what are we missing in order to get these documents prepared for the DA, Council”, they kept coming with more and more and more documents that they required. And I said, “Hey, why can’t you just give us the whole list and I’ll Ted and Fernanda(?) and all the people, the people at MASQ compile it all at once and then pass it on”. And they gave us another list, another list, another list, and eventually Cameron said, “I can’t wait anymore. Please, you’re going to lose the deposit that you paid these people”, and he’s got a new PCA, private certifier that he would like to use. And so - why am I even telling you the story? And so he asked me to ask Ted to ask Martin to adjust the drawings accordingly. That’s all I can make out of it. “Could you remove the perimeter piling from his drawings”. Q. Just at the top of page 246, you type an email which says “Martens say they don’t

recommend it, but they do not say it can’t be used. However they are willing to change their report”. Can you see that? A. Yes. Q. Did you speak to Martens at the time? A. No, that’s why I’m worried where I’ve got that information from. Someone must have fed me that information. I never spoke to Martens in my life. I don’t even know who they are. I don’t even know who the representative for them is. [Again, the assertion that he did not know who Martens was is inconsistent with his earlier evidence that he must have known of Martens.] Q. In the last-- A. I don’t know where I got that information, but if I’m guilty of it, I’m guilty of it. I’ll try and work it out. As to the query by Mr Brown regarding whether it was ethical to get a new certifier, there was the following evidence (28/10/25; T 173): Q. The last sentence, that’s your words, isn’t it? “Is it ethical to get a new certifier who wants to work with us at this stage”? A. So I sent this email through to Ted, right? Q. You’re asking Ted whether it’s ethical to get a new certifier, correct? A. I did ask that, but Cameron, Cameron told me he wants to change the certifier, and so I was merely asking - don’t forget, I’ve never built a house here in Australia here before. So I’m asking him what the dos and don’ts are, what’s the politically correct thing to do. Can - I said, “Is it ethical”? Ethical is a term of

politeness. Q. Is it your evidence that what you’re really conveying by this email is that, “Is it polite to get a new certifier who wants to work with us at this stage”? Is that what you’re trying to tell her Honour? A. I’m saying, I’m asking him can it, is it - yes. Q. You’re asking whether it’s ethical, because you knew it wasn’t ethical at the time, correct? A. Why not? Questioned as to the declaration provided to the second certifier (Mr Chidiac) as to compliance with the development conditions, Mr Brown said that he read the document (“I don’t know about careful – but I read it”) (28/10/25; T 174). Asked whether he would sign a document that was not accurate, somewhat surprisingly, Mr Brown said that he did not know and then “not to the best of [his] ability, no” (28/10/25; T 174). Taken to the declaration that Conditions 13 and 14 had been satisfied as at 22 April 2020 (which it is now accepted was incorrect), Mr Brown accepted that he understood that those conditions required him to provide a geotechnical report and details of bulk excavation to Ms Rayman prior to the issue of a construction certificate and said “I should have done that, but--” and that “I didn’t, definitely not. But Cameron said he did” (28/10/25; T 175). There was then the following exchange (28/10/25; T 175-176; T 180): Q. There was nothing stopping you from doing that prior to 22 April 2020, was

there? A. No. Q. The reason you didn’t do it was because you didn’t want my clients to know what type of excavation you were going to carry out? A. I was told by Cameron not to send them because I, my relationship with Avron was a little bit better than that but, yeah, I mean, I, I had, I had nothing to hide. Yeah, Cameron told me I mustn’t send them. He’ll take care of it. I didn’t send them and that’s all there is to it. [Pausing here, the very reason that Mr Brown speculated Mr Doueihi may have had for not wanting to send the documents – i.e., that he was in the throes of changing from one piling to another and that these documents might have given the wrong information – would equally have provided a reason for Mr Brown not to send them, particularly if there was a concern that the Raymans would be difficult about the issue, which on Ms Brown’s account of her conversation with Mr Weinberg suggests may have been appreciated was a possibility.] Q. When you actually do send the material, which is at page 341, can you see how you provide the details of your builder, Cameron? A. I do. Q. Why would you do that if it was your understanding that Cameron had already emailed the geotech report and excavation details to my client? Why would you be putting in this email contact details of Cameron? [Note – as extracted above, Mr Brown’s evidence at T 175 was that “Cameron said he

did”] A. I think Avron asked - sorry, your Honour, I think either a message or a discussion with Avron he asked me for those details, I think. Q. When did you gain your understanding that Cameron was going to send the geotech and excavation plans to my client? A. (No verbal reply) Q. I might make it a bit easier. Was it around-- A. I, I never understood when he would do it. Q. Certainly at least on or from 2 March you expected him to send those document, correct? A. Correct. Q. Did you following [sic] him up at all in writing and say, “Hey, have you sent the documents?” A. I, I, I, I think I have. I can’t be certain and again dig through my paperwork and-- Q. Do you accept from 2 March 2020 until 24 April 2020 you were in regular communication with Cameron, Mr Doueihi? A. Yes. Q. A lot of that communication was in writing? A. That was my problem, which I mentioned earlier, your Honour. The majority of communication was verbal. He, whenever I sent him a[n] email or message, text or whatever message, he replied with a phone call. So I don’t have a lot of memory capacity to remember what transpired on those occasions. Q. Is it your evidence that by 24 April you understood or at least had expected Cameron to send documents to my client at least with respect to the geotech and excavation details? A. Yes. Q. Did you also hold that view with respect to the dilapidation report? A.

Yeah, I don’t know. Is it on this email? Is that one of these documents? … Q. On 234 you’ll see at the bottom there’s a reference to condition 30 about the dilapidation report and over the following page you send the geotech details and the excavation details to Mr Stockley and I just want to make it clear that on and from 2 March you expected Mr Doueihi, Cameron, to send the geotech report, the details of excavation and the dilapidation report to my client; is that correct? A. Yes. Q. Did you maintain that expectation on and from 2 March through till 24 April? A. 24 April is the day we started or what? Q. No, 24 April was the day that you actually sent the documents. I just want to make sure that you held that expectation that Cameron would send the geotech report, the excavation details and the dilapidation report. You held that expectation on and from 2 March all the way through till 24 April? A. I, I, yes, I, I did. I, I didn’t think about it every day but I did but I’m pretty sure that if I check with my counsel we’d find a couple of messages that are emailed, Cameron asking him if he had done so, your Honour. … Q. --and you gave evidence before, correct me if I’m wrong, that the reason you didn’t send at least the geotech report, the bulk excavation and the dilapidation report with respect to my client’s property on 2 March is because Mr Doueihi, Cameron, told you that he

would do that; is that correct? A. Yeah, that’s what he told me, yeah. Q. Okay, and on and from 2 March did you understand that he had done that? A. I hadn’t understood that he had done that [cf Mr Brown’s earlier answer at T 175 that Cameron said he did] and obviously he hadn’t done that because otherwise I never, I wouldn’t have sent him a[n] email asking him about it. I’m guessing, I’m guessing you’re right. Q. Isn’t another explanation as to why you send the email, asking Cameron whether it’s okay to send the dilapidation report, isn’t another explanation it’s because you knew that you were supposed to send those documents to my client? A. According to that, Cameron said he would do it, but if you want to say it’s me, fine. There was some objection raised to questioning on the topic as to why Mr Brown would be asking Mr Doueihi (in the email of 24 April 2020 at 6:08pm) if it was “OK” to send the 2019 Dilapidation Report if he understood that it had already been sent by Mr Doueihi. When I tried to clarify this with Mr Brown, there was the following exchange (28/10/25; T 179): Q. I thought you said earlier that you not simply had expected Cameron to send the geotech report and the excavation details to the owners of 64 but you thought that he had done so or he had told you that he had done so. Was that-- A. He told me, he told me he will take care of it and he will do so. [cf

the evidence at T 175 extracted above] Q. Yes. A. I have no proof that he had done so, your Honour. He told me he would do so but I didn’t have any proof that he had done so, but, yeah, okay. Counsel for Ms Rayman then questioned Mr Brown (28/10/25; T 180): Q. --and you gave evidence before, correct me if I’m wrong, that the reason you didn’t send at least the geotech report, the bulk excavation and the dilapidation report with respect to my client’s property on 2 March is because Mr Douehi [sic], Cameron, told you that he would do that; is that correct? A. Yeah, that’s what he told me, yeah. Q. Okay, and on and from 2 March did you understand that he had done that? A. I hadn’t understood that he had done that and obviously he hadn’t done that because otherwise I never, I wouldn’t have sent him a email asking him about it. I’m guessing, I’m guessing you’re right. Q. Isn’t another explanation as to why you send the email, asking Cameron whether it’s okay to send the dilapidation report, isn’t another explanation it’s because you knew that you were supposed to send those documents to my client? A. According to that, Cameron said he would do it, but if you want to say it’s me, fine. Mr Brown accepted that by 24 April 2020 he understood that the 2019 Dilapidation Report referred to contiguous piering and strutting (and said that is why he underlined it in the email to Mr Doueihi);

and that he “definitely” knew by that time that what was going to be used was sheet piling (28/10/25; T 181). Mr Brown also accepted that by 24 April 2020 he understood the difference between the contiguous piering and sheet piling and he said that it was “obviously for that reason” that he was asking Mr Doueihi whether it was okay to send this document. Mr Brown went on to say that “[b]ecause he told me he’s changing the methodology of piling and I’m saying “How can I send this document to Avron if it states something otherwise”” (28/10/25; T 181). Again, Mr Brown sought to argue the case in the following exchange (28/10/25; T 181): Q. Well by 24 April you were aware of at least two documents that drew your attention to the risk of using sheet piling; one is the dilapidation report that you’ve extracted here, correct? A. I’ll say yes. Q. And the other one is the Martens report that appears at page 14? A. But they don’t forbid sheet piling, they just advise against it. Q. And that was a risk you were prepared to undertake, correct? A. I wasn’t undertaking any risk, that was the builder who decided to go down that avenue due to the fact that he was in control of the property at the time your Honour. Mr Brown said that he did not authorise works to commence on 27 April 2020 but accepted that he must have been aware as at 24 April 2020 that they were going to commence on 27 April

2020 (28/10/25; T 182). When it was put to him that there was nothing stopping him from waiting seven days for the works to commence, Mr Brown’s response was “[n]othing stopping me, but Cameron [Mr Doueihi] made that decision to box on” (28/10/25; T 182). Mr Brown was briefly cross-examined by counsel for Scopeview on the third day of the hearing. Mr Brown accepted that, as at the time of the 9 April 2020 email, there were two sets of shoring plans – Mr Zimmerman’s contiguous piling plans and IDC’s sheet piling plans; and that he was aware that Mr Doueihi needed one certified shoring plan before he could proceed with the works (29/10/25; T 185-186). Mr Brown then denied that, as at 9 April 2020, he wanted to use sheet piling but, when pressed on this, said (29/10/25; T 186): Q. Are you saying you didn’t want to use sheet piling? A. It’s not that I didn’t want to use sheet piling, I was told by Cameron that he wants to use sheet piling and therefore I should ask Zimmerman to change his drawings to exclude the piling so that Cameron could use the sheet piling as designed by - I don’t know the name of the company but whoever designed the sheet piling. Mr Brown then said (29/10/25; T 185-186): I personally didn’t want to - I’m not a builder or an engineer or a construction person, so I was asked by Cameron to get this part of the complication changed. I wanted to sound as if the

instruction came from me, giving Ted the instruction, the guy from the - the architect who had the relationship with Mr Zimmerman, who got us to use Mr Zimmerman in the first place. He had longstanding work relationships with Mr Zimmerman and therefore he had more, can I say, pull over him. So I wanted to sound like the authority was coming from me, but in fact the request came from Cameron, Scopeview, Mr Doueihi. Asked whether it would be correct to say that the email was incorrect when it said “I want to use the sheet piling”, Mr Brown said (29/10/25; T 187): A. I would say it would be incorrect in what my feelings would be, but this is what Cameron wanted to use, so therefore I was aiding him in getting this documentation changed. Q. And we should accept what you say now in preference to what you wrote in your email at the time, is that the position? A. Yeah, I, I felt that I was just the conduit to making this change. It’s, it’s not - it’s, it’s not I - the word “I” is the pronunciation of authority, right. So for MASQ Architect I wanted to make as if the instruction came from me. But the instruction came from Cameron who requested me to do this. Pausing here, in submissions it was argued for Ms Brown that all Mr Brown did was ensure that all the relevant parties were aware of the communications; it was said (echoing Mr Brown’s evidence that he was a conduit for

communications) that Mr Brown had no expertise to make a decision, no basis for doing so and was “no more than a scribe” for Scopeview, who had assumed all the responsibility. For Ms Brown it was submitted that notification was the duty of Scopeview and that Mr Brown “diligently passed on” the notifications as soon as they were received. Mr Brown appeared to accept that he knew that Mr Doueihi was asking him to arrange to have one consistent shoring design put to the certifier to certify it (saying, “Yes, … I guess you can only have one design being done”) (29/10/25; T 187). Mr Brown also then said that Mr Doueihi “asked me to do it. He didn’t pressurise me” (29/10/25; T 187) (cf his earlier evidence that Mr Doueihi “put a lot of pressure” on him to write the email to Mr Quinton (28/10/25; T 162; see [292] above)). As to the alleged pressure by Mr Doueihi on Mr Brown to write the 9 April 2020 email, Mr Brown subsequently resiled from this suggestion. Mr Brown accepted that it was not Mr Doueihi’s role as the builder to tell the client which certifier to use and said that the issue with the original certifier (Ms McSeveny) was that it was taking too long to obtain a determination from her as at 9 April 2020 (29/10/25; T 187). Mr Brown accepted that Mr Doueihi provided him with Mr Chidiac’s details from Keystone as an alternative certifier but did not accept that ultimately it

was him (either on his own or in conjunction with MASQ) who actually made the decision to engage Mr Chidiac (29/10/25; T 188). Counsel for Scopeview then put the following propositions to Mr Brown arising from his evidence the previous day, each of which Mr Brown denied: first, that it was not the case that Mr Doueihi told him not to send the IDC structural engineering report and the 2019 Dilapidation Report to the Raymans and, second, that it was not the case that Mr Doueihi told him that he must not send those reports to the Raymans (29/10/25; T 188). As will be seen, this was by no means the last evidence on the topic of what Mr Doueihi told Mr Brown as to the sending of documents to the Raymans. Ms Brown Ms Brown swore an affidavit on 31 July 2023. Ms Brown deposed that emails written by Mr Brown in this matter were written on her behalf and with her consent, save as otherwise stated (at [2]); and, at [14], that emails written by her husband in this matter were on her instructions and/or in consultation with her. Ms Brown also deposed that at all material times her husband was instructed by her to attend to the administration of the proposed new Brown home and demolition of the old Brown home (at [15]). Ms Brown deposed that from time to time she would consult with her husband and the professionals in planning the design and concept planning for the new home but left all

the details with her husband to record (at [16]). Ms Brown deposed to a conversation with the foreman (Jason) prior to commencement of the earthworks in which she asked if he had notified the neighbours that the earthworks were about to start and he said that he had personally informed each one of the neighbours (at [23]). In context, this conversation must have been sometime around April 2020 (as the earthworks began in late April 2020). However, it appears that Ms Brown had notification of the neighbours in mind as early as 20 February 2020 since on that date she took a photograph on her phone of Condition 14(c) of the Development Consent and sent it to Jason (see [24] and Annexure A to her affidavit, that being a photograph of the requirement in Condition 14(c) of the Development Consent). Ms Brown also deposed to a conversation with Jason (which she placed as being sometime shortly after 20 February 2020) in which she says he informed her that a Council member had just been there and the Council member had said he was contacted by Mr Weinberg. Following this conversation, Ms Brown says she went to Mr Weinberg’s house (also on Gilgandra Road) and had a conversation with him (at [26]). Ms Brown’s account of the conversation is that Mr Weinberg told her that Mr Zimmerman was a personal friend of his and had told him of the proposed sheet piling. Ms Brown deposed that Mr

Weinberg told her that he had not received any formal notice; that “I have a thick file on you already” and that “[i]f you go ahead, you will build my daughter a new house” (at [26]). Ms Brown deposed that she went home and called her husband and asked him to send a notification to Mr Weinberg about the sheet piling. (Pausing here, if this conversation was on or around 20 February 2020, then it is difficult to reconcile with the timeline of events in relation to the 2 March 2020 notification to Mr Stockley and the disputed 2 March 2020 conversation – since it makes no sense that Mr Brown would do nothing in response to such a request until prompted by an enquiry from one of his other neighbours about notification. However, no further light was shed on this.) It was apparent from her oral evidence that Ms Brown had very little or no recollection (or, for that matter, understanding) of the documents relating to the development of the Brown Land. Ms Brown said that she had read the Development Consent but did not know the purpose of a construction certificate; Ms Brown did not remember seeing other documents (pp 14, 98 of the opening bundle); and Ms Brown said she had seen the quote from Scopeview but was not really involved in the build of the house or anything to do with the builder. Ms Brown had been involved in a previous property development some 24 or 25 years ago and had

undertaken some kind of training session for owner/builders but did not think she ever did anything in relation to that build. Ms Brown accepted that she must have seen the notice of commencement that she signed but did not understand or read it and said she signed because she trusted her husband and the builder to take charge of everything to do with the house and “if he said sign something I did” (29/10/25; T 197). Mr Doueihi Mr Doueihi swore an affidavit on 23 August 2023. In that affidavit, Mr Doueihi deposed to having received various documents through a Dropbox link by email prior to signing the contract with Ms Brown (the Martens Report, Development Consent and the 2019 Dilapidation Report) and to having read and noted various parts of those documents, including that Martens did not recommend the use of driven and sheet piles because of vibration impacts (at [10]-[18]). Mr Doueihi deposed to having a conversation with Mr Orr of Meso on about 31 January 2020 in which Mr Doueihi says he said words to the effect that he had a bulk excavation project in North Bondi and “[a]t the moment, it’s designed as contiguous piles” and asked Mr Orr to quote for it (at [20]). Mr Doueihi deposed that he received the temporary shoring plan from Mr Orr on 7 February 2020 and that it provided for the installation of sheet pile walls (at [22]-[24]). Mr Doueihi also deposed to receipt of the

Meso Works Summary Document and that he noted various aspects of that document (at [26]ff). At [31], Mr Doueihi deposed that he noted that Meso expected the placement of the sheet piles to take three days from Meso establishing itself on site but that his recollection is that the piling works in fact took longer, approximately five days. As referred to earlier, Mr Doueihi deposed that, having reviewed the temporary shoring plan and Works Summary Document, the IDC Design and Analysis Report for the Temporary Shoring System and the IDC Design Certificate for the Temporary Shoring Design, he made the decision to proceed with the shoring plan recommended by Meso (at [39]). Mr Doueihi deposed that after receipt of an email exchange, copied to him, between Mr Orr and Mr Burgess of Martens, on 9 April 2020 he called Mr Orr and asked him to get approval from Martens and to speak to him about the sheet piles (at [42]-[44]). Mr Doueihi deposed that Mr Orr told him to send the Geotech Condition in the Council Development to show sheet piles are allowed by the Council (at [44]). Mr Doueihi deposed that he understood from Mr Burgess’ response on 14 April 2020 that there had been a conversation between Mr Burgess and Mr Orr (at [46]). After that, Mr Orr recommended engaging EIA to carry out the further geotechnical investigations recommended by Mr Burgess (at [47]). As to the installation of

the sheet piles, Mr Doueihi said that he was on site almost on a daily basis during the piling works and recalled one occasion (on a date he did not recall) where an alarm sounded and work stopped straight away (at [68]-[71]). Mr Doueihi deposed that he observed that a Meso representative on site made a phone call and (in evidence admitted for the fact of communication not its truth) that the Meso representative said words to the effect that: “It’s all fine. The alarm rang in error” (at [72]). At [75], Mr Doueihi deposed to a conversation with Mr Orr on about 29 April 2020 about the complaint made by Mr Rayman as to damage to his front door, in which Mr Doueihi said that Mr Orr said “[e]verything is fine, we’ve got the vibration reports”. In cross-examination by counsel for Ms Rayman, Mr Doueihi said that he had not had previous projects with MASQ (29/10/25; T 200); he had read previous geotechnical reports and understood their purpose to be for soil testing; he read that there was a “P” site classification and that the use of driven piles and sheet piles was not recommended due to adverse vibration impacts on neighbouring structures (29/10/25; T 201). Mr Doueihi said he understood at the time what a sheet piling shoring system was (29/10/25; T 201). He had used one once before on a property in Matraville (29/10/25; T 201). He said that by 15 June 2018 he had probably built 10

to 12 new homes (29/10/25; T 201). Mr Doueihi understood that Martens had recommended to limit excavator size to 8 tonnes and that Martens recommended a ground particle vibration limit of 3 mm/s (29/10/25; T 201-202). Mr Doueihi did not understand at the time what the latter meant (“I’m no vibration expert”) but did understand that vibrations could be a problem for the site and that care would need to be taken when the excavation works were carried out (29/10/25; T 202). Mr Doueihi said that he did “gaze over” the Development Consent but did not really read over it too much (but then suggested he did read it carefully) (29/10/25; T 202). Mr Doueihi understood that the engineering drawings called for a contiguous pile wall shoring system but prior to 2018 he had never done a contiguous pile wall (29/10/25; T 203). Mr Doueihi saw the Modified Development Consent and the 2019 Dilapidation Report before he provided his quote (29/10/25; T 204). He did not inspect the basement of the Rayman Home before commencing construction works (29/10/25; T 205). Mr Doueihi and his project manager at the time created the contract document (29/10/25; T 206). Mr Doueihi suggested that the reference in the contract to sheet piles “could have possibly been an error at the time, maybe” (inconsistent with his evidence shortly after this that it was definitely in his mind as at that time to use sheet

piling – see [342] below) but said that he was definitely in contact with the sheet piling contractor (i.e., Meso) at the time (i.e., at the time of the Contract) (29/10/25; T 207-208). Pressed as to whether he had spoken to the sheet piling contractor by 21 January 2020 (the date of the Contract), Mr Doueihi said (in an example of a somewhat contradictory response) “[c]ould have been, could have been, yes, maybe” before maintaining that in January 2020 he was in contact with the sheet piling contractor (29/10/25; T 207-208). Mr Doueihi agreed that, by the time of the Contract (21 January 2020), he had decided to use a sheet piling system (which is inconsistent with the suggestion that the reference to sheet piling in the contract was in error at the time) (29/10/25; T 208). Mr Doueihi said that he did so with expert advice (notwithstanding, I note, that the Martens Report, the engineering plans and 2019 Dilapidation Report were all to the opposite effect) (29/10/25; T 208). Mr Doueihi said that, by 21 January 2020, Mr Orr of Meso had provided verbal advice to the effect that “we do a lot of work in North Bondi and sheet piling system does work in North Bondi” (29/10/25; T 208-209). Mr Doueihi was unable to say what plans or information Mr Orr had at that time but he was adamant that “in [his own] head” he (Mr Doueihi) had definitely decided to do sheet piling by 21 January

2020 (29/10/25; T 209). He acknowledged that this was against the express warning of Martens but said “I got other advice” (29/10/25; T 209). Mr Doueihi did not raise vibration levels with Meso at the time (29/10/25; T 213). Mr Doueihi said that they could not put sheet piling up against the wall of the property and that usually they try to place it around 200 mm/s away for drainage (29/10/25; T 213-214). He said that use of a 14 tonne excavator was based on EIA’s Geotech report (and that it was originally a 25 tonne reduced to a 14 tonne excavator) (29/10/25; T 214). Mr Doueihi accepted that sheet piling is quicker to install but said that, as to cost, the two shoring systems were on par (which is inconsistent with Mr Brown’s recollection that Mr Doueihi told him that sheet piling would cost more but he would do it for the same price) (29/10/25; T 215). Mr Doueihi explained that he had asked the certifier to provide the staged demolition construction certificate (25 February 2020) urgently because the demolition contractor was waiting and he did not want to lose the booking time to get him in (29/10/25; T 216). As to the Rev C drawings sent on 21 April 2020, Mr Doueihi said “we read them but not … in detail” (29/10/25; T 220). Mr Doueihi said that he knew that Conditions 13, 14 and 30 needed to be satisfied prior to issuing a construction certificate and accepted that he was

on notice on 1 March 2020 that Mr Stockley had contacted Mr Brown and had drawn his attention to those conditions (29/10/25; T 225-226). Mr Doueihi said that he was “not sure” whether, when the construction certificate was issued, he knew that excavation details had not been provided to the Raymans (29/10/25; T 225). He said he did not make any enquiries (29/10/25; T 225). His memory was that “we did do doorknocking on all the neighbouring properties letting them know that we will be starting construction, sheet piling and excavation” (29/10/25; T 226). Mr Doueihi accepted that he did not provide sheet pile drawings or plans to either of the neighbouring owners (29/10/25; T 226). Mr Doueihi was not sure whether that was something that he had to do under the Development Conditions but accepted that he understood that Conditions 13 and 14 had to be satisfied (29/10/25; T 226-227). Mr Doueihi was not sure if he was on site on 28 April 2020 but said “possibly” he was (29/10/25; T 228). He said that his foreman, Jason, was definitely on site (29/10/25; T 229). Mr Doueihi did not attend the meeting referred to in the Meso internal record of 28 April 2020 (see above [187]) and his only source of information about that meeting was his foreman, Jason (29/10/25; T 229). Mr Doueihi was then cross-examined by counsel for Ms Brown. He gave evidence that, when he first discussed the building

project with Mr Brown, he had discussions with Mr Brown about the Contract; that both of them went through it together; and that he believed Mr Brown appointed a lawyer to go through the terms of the Contract (this last is consistent with Mr Brown’s evidence that he sent the Contract to Mr Rod – see above) (29/10/25; T 231-232). Mr Doueihi said that he sent Mr Brown the Contract by email and they discussed “payment terms” and “stuff” (29/10/25; T 232). Mr Doueihi accepted that he had already included sheet piling as a contemplated shoring system in the Contract (29/10/25; T 233). He said that he discussed that with Mr Brown and that he explained to Mr Brown what sheet piling was (29/10/25; T 233). Asked if he had explained what the difference was between sheet piling and contiguous piling, Mr Doueihi said (29/10/25; T 233): Possibly, I just, yeah there’s, yeah I’m, I’m not too sure actually, so I did explain to him what sheet pile was, yes. (This last answer is another example of Mr Doueihi giving somewhat contradictory statements and answering questions seemingly off the top of his head.) Asked whether he had discussed at that time that the geotechnical reports had contemplated contiguous piling but that in the Contract he had sheet piling, Mr Doueihi said no (29/10/25; T 233). Mr Doueihi was taken to cl 40.1(c) of the Contract which refers to the conditions of any relevant

development consent or complying development certificate (29/10/25; T 234). Mr Doueihi accepted that he had to comply with the Development Consent (29/10/25; T 234). Asked if he accepted that it was his obligation to notify the neighbours of the building activity he was conducting on the Brown Land, Mr Doueihi’s response was that he thought the certifiers should also be liable to notify neighbouring properties (29/10/25; T 235). Pressed as to whether he accepted that it was his obligation to inform the neighbours that he was going to commence sheet piling, his response was (29/10/25; T 235-236): Not solely on the builder being myself to be the person responsible for notifying the neighbours. I think in my opinion the certifier is responsible for that. It’s quite normal for the certifier - notice of commencement delivers it to the Council and neighbouring properties. Mr Doueihi confirmed his awareness of when the sheet piling was to start (29/10/25; T 236). Asked whether he advised the certifier when he was going to start, his response was that the construction certificate was issued (29/10/25; T 236). There was then the following exchange (29/10/25; T 236): Q. The construction certificate was issued but did you advise the certifier that you were going to commence sheet piling on the 28th? A. Yes. The principal CC came in. We had two days notice of commencement to start work.

That’s the notice. Q. Pursuant to that do you accept that the neighbours should be informed? A. I’m - we received the construction certificate so I’m under the impression that people were notified because the construction certificate was issued. We wouldn’t have got - we wouldn’t have - in my opinion we wouldn’t have got the construction certificate if they weren’t notified but we got the construction certificate, so I don’t understand, so. Mr Doueihi said that the doorknocking was to advise the neighbours that they would be starting excavation and sheet piling soon (29/10/25; T 236). As to the email sent by Mr Brown to Mr Quinton on 9 April 2020 (in which Mr Brown says “[b]asically, I want to use the sheet piling”), Mr Doueihi accepted that that was “possibly” an instruction from him to Mr Brown (29/10/25; T 238): Q. Did you pass these instructions on to Mr Jonathan Brown to inquire from Ted whether he could achieve this? A. Possibly. Q. Can you recall saying to Mr Brown that you would have wanted the drawings altered to remove the perimeter piling from the drawings? A. Possibly, yes, because I was assisting Mr Brown at the time with the CC, yes. Pressed on this issue, there was the following (29/10/25; T 238): Q. What had transpired and that is that this email was on 9 April? A. Yes. Q. In your contract you had already decided that you were going to use sheet piling so that

the drawing of Mr Zimmerman which contemplated contiguous piling-- A. Yes. Q. --you wanted that removed so that you could proceed with the sheet piling not the contiguous piling. Is that correct? A. That is correct, yes. Q. That was a decision that you made and you passed this information on to Jonathan to ask him to ensure that the drawing complied with what you intended to do? A. That’s correct. Q. This was not Jonathan’s decision. It was your decision? A. Yes. It was my decision to-- Q. Go with the sheet piling? A. --go for sheet piling, yes. Q. In the last paragraph it says: “I’ve consulted with another engineering company that has been doing sheet piling in the eastern suburbs for many years. They reckon it’s perfect and they’ve spoken to Martens who have agreed.” To your knowledge did Jonathan ever consult with MESO? A. I’m not sure. Mr Doueihi was asked (29/10/25; T 239): Q. In fact there is very little correspondence between you and Mr Brown in writing. Would it be correct that you spoke to him mostly on the phone, would you agree with that? A. We did speak on the phone quite a fair bit, yes. Q. Your communication was ordinarily not by way of email? A. There were emails back and forth between the both of us, but the lot of were phone calls, yeah. Asked about notification to the neighbours (29/10/25; T 241): Q. There was no instruction by you to Mr Brown to notify the

neighbours? A. No instruction from me, no. Q. Did Mr Brown or Mrs Brown speak to you about notifying the neighbours generally about what you were doing on your site? A. I could not answer that, I’m not too sure. Q. Is it you can’t remember it or it didn’t happen or-- A. I don’t recall the conversation. Mr Doueihi did not recall whether he asked Mr Brown to bring the new geotechnical report to the attention of the neighbours (29/10/25; T 242). I then interposed to ask the following question (29/10/25; T 242): Q. You’ve been asked whether you asked Mr Brown to bring this to the attention of the neighbours and you’ve referred earlier to an email in relation to number 60, the owner of number 60, did you tell Mr Brown that he must not send this to the neighbours at number 64? A. I don’t recall that, no. I don’t recall.

LUITINGH Q. Is it possible that you might have said that to him? A. I don’t see why I would say that though. I don’t-- Q. Did you say to Mr Brown that you would take care of the building operations and the process of the building, you would take care of it? Did you say words to-- A. I could have said that because I am the builder so - I, I did reassure though I’m - he’s in good hands. Questioned further about the obligations under the Development Consent, there was the following (29/10/25; T 242): Q. Yes. Did you tell Mr Brown at any time that you will take care of the obligations under the development consent? … [which obligation] Q. All of them in the development consent. Did you say that to Mr Brown-- A. I don’t, I don’t recall. I don’t recall. Q. Is it possible that you might have said that to him? A. I - like I cannot answer that because I don’t recall the conversations like that before, I don’t-- As to the construction certificate document signed by the Browns declaring that all development conditions had been satisfied (29/10/25; T 244-246): Q. --there is a line that all the development consent conditions are required to be satisfied prior to the commencement or have been satisfied. Do you see that? A. Yep, yep, I’m with you. Q. Have you seen this document before? A. The construction certificate and notice of commencement, yep. Q. Did you advise Mr Brown that all the

conditions had been satisfied? A. I - yeah, like I said before, the certifier, when I did the notice of commencements, technically that the conditions, I was satisfied. Q. As far as you were concerned they were satisfied? A. From this - from the notice of commencement the DA conditions had to be satisfied. Q. You told Mr Brown-- A. And that’s what I got. Q. --that they were satisfied? A. Well, if you get the notice of commencement they are satisfied, yes.

HER HONOUR Q. Sorry, when you say if you get the notice of commencement, this is something that’s signed by Mr Brown? A. Correct. Yes, it’s signed saying-- Q. What you’re being asked is whether you told Mr Brown before he signed it that all the conditions of the development consent had been satisfied? A. In those words, well - so, my understanding is when you get the notice of commencement from the building - from the certifier, all the eight conditions of, of the consent are, are satisfied. … Q. Did you at any time have a discussion with Mr Brown about the conditions that needed to be satisfied to obtain‑‑ A. No. Q. ‑‑the CC? A. No, I didn’t speak to him about any conditions. Q. You didn’t? A. Did not speak to Jonathan. Q. You did not ever speak to him about the conditions that were to be‑‑ A. About the conditions or the DA consent? … Q. “No, I didn’t speak to him about any conditions”, and then what did you say? A. Yeah, assuming there’s, in my, the DA conditions were, were met prior to the CC being issued. That’s how I understand how it all works. So when the CC is issued, all the consents, all the DA conditions are, are met. Q. That’s your assumption? A. That’s my assumption at the time. So did I speak to Jonathan about certain conditions, no I did not. HER HONOUR: Can I just ask a further question? LUITINGH: Yes of course.

HER HONOUR Q. When you say you didn’t speak to him about certain conditions being satisfied, did you tell him that you had sent the dilapidation report to the owners at [the Rayman Home]? A. The dilapidation report would’ve been sent. Q. Did you tell Mr Brown that you had sent the dilapidation report to the owners of [the Rayman Home]? A. I’m not sure, I don’t, I don’t think so, I don’t think I said that. As to the vibration limits, Mr Doueihi gave the following evidence (29/10/25; T 250): Q. Did you think that 8 mm/s was more severe than 3 mm/s? A. I would three [sic] 3 millimetres per second would be more vibration. Q. More vibration than? A. Than 8 millimetres, because it’s, it’s actually vibrating for a lot longer. That’s how I anticipate it, that’s why I - 3 millimetres per second as opposed to 8 millimetres, there’ll be a lot more vibration in 3 millimetres per second as opposed to 8 millimetres. As to the basement, Mr Doueihi was asked (29/10/25; T 253): Q. You knew that your excavation and sheet piling was going to go from the surface down several metres. Is that correct? A. In ground, yes, double dock, yes, double, yes. Q. Is the fact that there was a basement something that you ordinarily would consider as a matter of interest? A. Basement would be safer for excavation as opposed to no basement. Q. Did you think that that was something that you ought to look at in

considering the activities that you were contemplating? A. No. … Mr Doueihi was cross-examined as to his opinion as a builder of various aspects of the Rayman Home, including a bearer held up by a piece of wood attached to the wall (29/10/25; T 259-260). Mr Doueihi said that the latter was not acceptable building practice (29/10/25; T 260). As to the email from Mr Doueihi in relation to notification to Mr Stockley, there was the following cross-examination (29/10/25; T 264-266): Q. What is your understanding of the letter? A. That my client, Mr Jonathan Brown, spoke to Lee Stockley, who was a – he..(not transcribable)..on [the Stockley Land], pointed out these conditions to Mr Jonathan Brown, and, and the email speaks for itself, that it’s asking for these, this information which Jonathan did send it to Lee Stockley. Q. Yes, but there is no indication here that he was going to send it to … the Raymans? A. There was no, no, there was no indication of that, no. Q. When you received this did you think that it was perhaps important to point out to Jonathan that it should also go to the Raymans? A. I didn’t, did not, I did not say that to Jonathan, no. Q. I beg your pardon? A. I didn’t mention that to Jonathan. Q. When Mr Brown was asked why he didn’t send it to the Raymans, number [xxx], he said that you had said to him that you will send it to the Raymans, that he shouldn’t send

it to the Raymans, but that you would send it to the Raymans, is that correct? A. I, I, I don’t recall that conversation, again I don’t, I don’t recall it. Q. Could it have happened? A. I’m not sure, I, I, I don’t know. Q. Is it possible that that conversation took place, that you would’ve said to him “Don’t send it to the Raymans, I’ll send it to them”? A. Me personally send it to them, I don’t think I would’ve said that, no, but in terms of me thinking the certifier would take care of it, instead of myself or Jonathan, that would send everything across to the neighbours. Q. That is your thinking, what I’m concerned about‑‑ A. Yeah Q. ‑‑and what is important to deal with here is is [sic] it possible that you would’ve said to him either words to the effect of “I’ll take care of it”, or “I’ll send it to them”, that is to the Raymans? A. I, I can’t recall a conversation along those lines. Q. Do you dispute that that conversation could’ve taken place? A. It, it could’ve but I don’t know, I don’t recall it. Q. Well it was his evidence in this court‑‑ A. Yeah. After objection to further questioning along the same lines, Mr Luitingh pressed the question as to whether or not it is possible that that conversation could have taken place (i.e., that Mr Brown should not send it to the Raymans, but that Mr Doueihi would take care of it). Mr Doueihi’s response was (29/10/25; T 266): WITNESS: With all due respect it’s just they’re talking one in five years ago, like that’s, like I’ve had plenty of conversations with Mr Jonathan Brown, but I do not recall that conversation. I’m under oath here, I can’t lie, I can’t lie, I can’t‑‑

LUITINGH Q. No I understand that. A. I don’t recall it, I don’t recall it, right, I’ve had plenty of conversations with Mr Jonathan Brown, I don’t recall saying that to him. Now I’ve had plenty of conversations with him, regardless I, I don’t see me saying that, I can’t picture myself saying that. When objection was taken to further questioning along this line, and I indicated that I did not see what weight I could place on an answer that it was possible that such a conversation had taken place after the answers given to that repeated question already, Mr Luitingh did not press further questions on that topic (29/10/25; T 266). Finally, Mr Doueihi was cross-examined as to whether it was his understanding that it was Mr Brown who had to make the call as to whether or not the Development Consent Conditions were satisfied, as he was going to sign the document. Shown the email of 22 April 2020 he had sent to Mr Brown (see [176] above, what seemed to be suggested was that this in some way conveyed Mr Doueihi’s opinion (or perhaps advice) that the development conditions had been satisfied) Mr Doueihi’s response was that “[s]o I was given this by the Keystone Certifiers asking me to ask the clients to sign. I just forwarded an email to my clients to, to sign it so we can start the work” (29/10/25; T 268). Application to reopen hearing and adduce further evidence That was where the lay

evidence stood as at the conclusion of the hearing on 31 October 2025 when judgment was reserved. Before turning to the expert evidence, it is convenient to deal next with the application made, after judgment had been reserved, to reopen the hearing since that reopened hearing only involved further lay evidence and it should be taken into account in relation to any credit findings in respect of the lay witnesses. On 2 February 2026, at the first directions hearing after the application to reopen had been foreshadowed, counsel for Ms Brown (Mr Luitingh) identified the issues the subject of that application as being: first, whether there was a telephone call between Mr Doueihi and Mr Brown in which the former said words to the effect “Leave it to me; You don’t have to serve the notices. I will do it” (the disputed 2 March 2020 conversation); and, second, whether Mr Doueihi advised Mr Brown that all conditions of the Development Consent had been satisfied and that he should sign the “consent orders that consent to the development application” (2/02/26; T 2). (As to the latter, this did not form part of the limited leave to reopen which I granted – since I considered that the issue had been explored (or had been able to be explored) in the main hearing.) As to the former, Mr Luitingh informed me that the disputed 2 March 2020 conversation went to two issues: first, Mr Brown’s

credit (which he said had been undermined when it was put to him that he lied in the witness box about the existence of that call) and, second, Mr Doueihi’s evidence in the witness box to the effect “[w]hy would I do that?” (2/02/26; T 3). Mr Luitingh submitted that this was a matter with respect to the integrity of the court and “potentially” a “falsity of fact” (2/02/26; T 6). Affidavit evidence filed on the reopening application (and reopened hearing if the application were successful) As earlier noted, I made directions in February 2026 for the filing of evidence (and submissions) on the reopening application. Affidavit evidence filed for Ms Brown in chief The following affidavit evidence was filed in chief for Ms Brown on the application: an affidavit affirmed on 9 February 2026 by Mr Rod and an affidavit sworn on 9 February 2026 by Mr Brown. Mr Rod At the hearing of the notice of motion on 20 March 2026, objection was taken to portions of Mr Rod’s affidavit (on which I made rulings including as to portions that it was said, and I accepted, went beyond the scope of the limited leave to reopen). There was also an objection to the whole of the affidavit pursuant to s 138 of the Evidence Act 1995 (NSW) (Evidence Act) on the basis that the evidence had been improperly obtained in contravention of various rules under the Uniform Law Australian Solicitors’ Conduct Rules 2015

(NSW) (Solicitors’ Conduct Rules) (r 22.4, prohibiting communications with a party represented by or known to be indemnified by an insurer (without the signified willingness of the party and the insurer); r 25.1, prohibiting communications with a person known to be represented by another practitioner (without that practitioner’s consent); and r 33.1, prohibiting a practitioner conferring with more than one lay witness at the same time about matters likely to be contentious at a future hearing). I formed the view that it was necessary to know more about the circumstances in which Mr Rod came to confer and communicate with Mr Doueihi in order to rule on the s 138 objection and deferred that until after the reopened hearing, treating it in the interim as provisionally admitted. I deal with that objection in due course. For the present, however, I summarise the contents of Mr Rod’s 9 February 2026 affidavit taking into account the rulings made to the more particular objections. Mr Rod deposed to various matters relating to the settlement between his client and Scopeview and as to the hearing. (Those portions of his affidavit were in due course rejected as going beyond the scope of the leave.) Then, from [12], Mr Rod deposed to a “post-hearing telephone call from Witness”, that witness being Mr Doueihi. This was a reference to a telephone conversation on 18 November 2025. Mr Rod

deposed that, on 18 November 2025, Mr Brown called him and Mr Brown advised him that he was in a meeting with Mr Doueihi and that Mr Doueihi was very upset with the way in which he had been cross-examined and his responses to some of the questions put to him during cross-examination which were not accurate (at [14]). Mr Rod deposed that, during the call, Mr Brown put his phone onto speaker phone mode and that Mr Brown asked Mr Doueihi to tell him what issues in his evidence were not correctly conveyed to the court (at [14]). Mr Rod deposed that he advised Mr Doueihi that it was not appropriate for him (Mr Rod) to talk to him or to advise him and that he should seek independent legal advice (at [14]). Mr Rod deposed that Mr Doueihi advised him that he had already obtained independent legal advice and that he simply wanted Mr Rod to listen to what he was saying (at [14]). Mr Rod deposed that Mr Doueihi said, “My evidence at the trial on 29 October 2025 was not accurate and could be misleading and I wish to correct those aspects of his [sic] evidence at the trial” (at [14]). Mr Rod deposed that he again advised Mr Doueihi that he should be talking to his legal team and that Mr Doueihi said “I feel that the lawyers have let me down as they had represented their “real client”, the insurers and not consulted me about the terms of the Deed of Settlement” (at [15]). At [17]-[18], Mr

Rod deposed that Mr Doueihi said “I had a telephone conversation with [Mr Brown] on 2 March 2020, during which I said [Mr Brown] did not need to notify the adjoining owners at [the Rayman Land] of the proposed excavation works, and would provide that notification myself” and that Mr Doueihi stated that he now realised that such a conversation had occurred. Mr Rod deposed that, as an officer of the Court and pursuant to the Solicitors’ Conduct Rules (rr 19-21), he considered that the court must be informed of these matters “as the evidence given by [Mr Doueihi] at trial was materially incorrect” (at [24]). Annexed to Mr Rod’s affidavit was a typed note of the conversation. That typed note included that (after Mr Brown had said words to the effect that Mr Doueihi was very upset about the evidence he had given in court and wanted to speak to Mr Rod), Mr Rod started by saying “I have to let you know that I cannot speak with you. You need to obtain advice from an independent lawyer”; that Mr Doueihi said he had already consulted an independent lawyer; and that Mr Doueihi asked Mr Rod just to listen to what he had told Mr Brown. Mr Rod’s note records that Mr Doueihi said “I was extremely uncomfortable with what had happened in court because I felt that the way I had phrased some of my responses did not accurately reflect what had occurred” and that “[Mr Brown] has given me a copy of

the transcript of my evidence”; that he (Mr Rod) had said to Mr Doueihi that he was legally represented and needed to speak with his own lawyers; and that Mr Doueihi told him that he felt let down by his solicitors and felt they had pulled the wool over his eyes and were representing the interests of “their real client, the insurer” and that he was afraid that if he approached the solicitors to correct his evidence “the insurer will come after me”. Mr Rod’s note records that he said “I really think it be appropriate for you to again [sic] talk to your independent legal advice [sic]. If you are not happy with advice received to date, I can recommend several solicitors you could speak with”. The note goes on to record the following, framed as a quote of what Mr Doueihi is recorded as having said: Cameron: Ok let me think about it. I do however want to tell you that after reading the transcript with [Mr Brown], I realised that my evidence had not been complete and that I should have been more forthright and clearer in my responses. On the day I gave evidence, I felt intimidated by the questions and by the court process. I have been unable to sleep since giving my evidence. I do not want the inaccuracies in my evidence to stand. I believe the Court should be advised of the inaccuracies. According to the typed note, Mr Rod asked Mr Doueihi what were the inaccuracies (rather than

simply listening to him as his affidavit suggested). The typed note then set out the following: Cameron: After consulting my telephone records, I can confirm I did speak to [Mr Brown] on 2 March 2020 in relation to Jonathan’s email dated 1 March 2020. I recall that I said to [Mr Brown] that [Mr Brown] need not advise the neighbours at [the Rayman Home] about conditions 13 and 14 of the development application because [Mr Brown] could leave it to me. I am adamant that I told [Mr Brown] not to concern himself with the conditions because I would attend to them on [Mr Brown]’s behalf. I recall telling [Mr Brown] that I would attend to complying with the development application conditions and that I would ask [Mr Brown] to write letters, if needed. As far as I know, [Mr Brown] advised the other neighbours of what was happening on site. Cameron: In relation to [Mr Brown] signing the development application and confirming that all conditions had been met, based on advice from the private certifier, I told Jonathan that all conditions had been met. When I told Jonathan about sheet piling, I did not explain what contiguous piling was because I had never done contiguous piling myself. I did not appreciate the risks associated with the two different piling procedures and therefore could not have explained the differences or risks to Jonathan. Cameron: I want to rectify my evidence but do

not want the Court to think I am a liar. I just want to correct my evidence because I felt I had not properly understood the questions and had not given complete answers, which may have affected how my responses appeared in the transcript. I will inform the insurance solicitors and, if necessary, make myself available to give this evidence in court. Cameron: I note you have told me to obtain independent legal advice and I confirm That [sic] I have already done so. Mr Rod’s handwritten note dated 18 November 2025 (from which he later prepared the typewritten file note that was handed up by Mr Luitingh at the reopened hearing) made reference to Mr Doueihi saying that he agreed that he did tell Mr Brown that he need not advise neighbours about Conditions 13 and 14 because he told Mr Brown to leave it with him, (as does the typewritten note prepared by Mr Rod of that conversation), whereas Mr Rod’s affidavit account of the conversation refers to notification of the proposed excavation works (at [17]) and does not include the saying by Mr Doueihi of “leave it with me”. This is of some relevance as there is a distinction between notification of commencement of earth works (Condition 30) and the notification required by Conditions 13 and 14. There are other differences between the typed note and the handwritten note – for example, the handwritten note does not indicate the statement

attributed to Mr Doueihi in the handwritten note that “I am adamant that I told Jonathan …”. Rather, it records that Mr Doueihi was “adamant that he had assumed full responsibility” and the handwritten note, so far as I can read it, does not go on to record (in item 2) the next two paragraphs appearing in the handwritten note. Mr Brown In his first reopening affidavit sworn on 9 February 2026, Mr Brown set out the following chronology of his communications with Mr Doueihi in November 2025. At [4], Mr Brown deposed that, on 5 November 2025, when he was overseas, he received two missed calls from Mr Doueihi. Mr Brown then deposed under the heading “11 – 13 November 2025”, that: on 11 November 2025, he and Mr Doueihi exchanged several calls in which they discussed their “impressions of the trial” (at [5]) and, on 13 November 2025, Mr Doueihi said to him “I want to correct matters which I believe have been inaccurately presented” (at [6]). Seemingly related also to the 13 November 2025 call (by reference to its context in the account here given), Mr Brown deposed that Mr Doueihi asked whether he (Mr Brown) could put him (Mr Doueihi) in contact with a lawyer who could provide him with advice about changing his evidence (at [9]) and said that “I am willing to do whatever is necessary to demonstrate that I was the responsible person and I need to correct the record without exposing

myself to unnecessary risk” ([10]). Mr Brown deposed that, during the same telephone conversation on 13 November 2025, Mr Doueihi said to him “I had assumed the certifier had handled neighbour notifications because I had seen an email suggesting they were aware of it” (at [11]). Under the heading “17 November 2025 – Telephone Call”, Mr Brown deposed that, on 17 November 2025, Mr Doueihi said to him “[t]he failure to send neighbour notification emails was just an administrative error and that Scopeview had done everything “by the book”” (at [16]). Mr Brown deposed that Mr Doueihi said he recalled the conversation they had had on 2 March 2020 and that he said to Mr Brown “[d]on’t worry leave it with me” (at [17]). Mr Brown also deposed that Mr Doueihi said to him that he had consulted with an independent lawyer “and that independent lawyer had told him that correcting his evidence would not alter the case because the matter was based on facts and expert evidence and might expose him to legal consequences” (at [18]). As to the conversation on 18 November 2025, Mr Brown deposed under the heading “18 November 2025 – Meeting with CD and DR”, that: Mr Doueihi came to his residence (with no mention of Mr Sara) and he, Mr Brown, called Mr Rod while Mr Doueihi was with him (at [20]); Mr Rod said “I cannot speak with [Mr Doueihi], he needs to consult an independent lawyer” (at [21]); Mr

Doueihi “insisted” and said that he has consulted a lawyer (at [22]); and Mr Doueihi “confirmed” to Mr Rod that “during our call on 2 March 2020, when [Mr Brown] asked about notifying the neighbours, I said to [Mr Brown]: leave it with me” (at [23]). Mr Brown deposed to another conversation with Mr Doueihi (under the heading “21 November 2025 – Two-Hour Call” in which he said Mr Doueihi said “I remember the 2 March 2020 conversation I forgot about that under cross examination” (at [26])). Mr Brown deposed that between late November and mid-December 2025 he had many further calls with Mr Doueihi (at [27]). Under the heading “Meetings and Office Call (time frame)”, Mr Brown deposed that at a later in-person meeting Mr Doueihi said to him “[s]ome facts at trial did not come out as intended” (at [29]) and that on a speaker phone call to his (Mr Brown’s) office Mr Doueihi said “I want to correct my evidence” (at [30]). Affidavit evidence filed by Scopeview on reopening application/hearing In response to the affidavits filed on behalf of Ms Brown on the reopening application, Scopeview filed two affidavits, an affidavit sworn by Mr Sara on 25 February 2026 and an affidavit sworn by Mr Doueihi on 26 February 2026. Those are summarised below. Mr Doueihi Mr Doueihi deposed to a number of communications with Mr Brown following the hearing. First, Mr Doueihi deposed to a conversation on 5

November 2025 (to which Mr Brown had made no reference in his affidavit) as follows: 9 I telephoned Jonathan on Wednesday, 5 November 2025. The purpose of my call was to check on his wellbeing after the hearing. I recall the first two times I called him, the phone did not ring through. I then spoke to him and I recall we had a conversation to the following effect. Me. How are you feeling after the case? Jonathan: Terrible. I don’t think we did well. Jonathan: What you said in your evidence cost me. That was a deal-breaker for the judge. 10 My recollection is that Jonathan said words to the effect, “If you can, do you mind clearing up your evidence?” or ‘‘You might want to amend or make clear some of your evidence”. I do not now recall the precise words he said. [A s 135 objection was taken by Ms Brown to this paragraph on the basis that it was incomplete and misleading. I allowed it subject to weight.] 11 I recall Jonathan told me the evidence he wanted me to clear up was my evidence in Court when I said I did not remember having a conversation with him about whether the conditions of the development consent had been complied with and me telling him not to send engineering reports to the neighbours. I do not now recall the words Jonathan used. [Again, objection was taken by Ms Brown pursuant to s 135 as to this paragraph. I allowed it subject to weight.] 12 l was uncomfortable

with the suggestion I should amend or change my evidence. I thought my evidence was clear enough. I do not have a recollection of the conversations Jonathan was referring to. I recall giving evidence to this effect at the hearing. [Ms Brown objected to this on the basis that it was at best admissible only as to state of mind. I allowed it on that basis and subject to weight.] 13 I received an email from Jonathan at 5:02 pm on Wednesday, 5 November 2025, a copy of which appears at Annexure A. Attached to the email was a PDF document titled “transcript days 1-4”. In the email, Jonathan stated, Hi Cam. Please read through the transcripts in your section Page 199 to 270. After our discussion today See if there are any answers you might want to change or amend Please get back to me soon as I need to respond by Friday. 14 I did not read the transcript. I did not respond to this email. Pausing here, Mr Brown’s first affidavit on the reopening application made no reference to the email he had sent to Mr Doueihi on 5 November 2025, forwarding to him pages of the transcript from the hearing. Next, Mr Doueihi deposed to a further telephone conversation with Mr Brown on 11 November 2025. Mr Doueihi deposed at [15] that he did not now recall precisely what was said but went on to depose that: 16 I recall Jonathan [Mr Brown] said words to the effect, Jonathan: They’re making it out to be all

my fault. . [sic] I was the one that damaged it [the Raymans’ house]. 17 I said words to the effect, Me: You didn’t damage it, Jonathan You’re not being blamed for the damage. [sic] 18 At 4:14 pm that afternoon, 11 November 2025, I received an email from Jonathan, a copy of which appears at Annexure B. I disagree with the contents of this email. I did not say the things Jonathan attributes to me in this email. I did not reply to this email. Again, Mr Brown made no reference in his first reopening affidavit to this telephone conversation or to having sent the email a copy of which was Annexure B to Mr Doueihi’s affidavit. That email was in the following terms: Hi Cameron, Thank you for your call. To make sure we are on the same page please read this email and advise if anything here is not correct. Immediately after you gave evidence, you called. I spoke to my lawyers, and they advised me that I should not speak to you while the case was still ongoing. My barrister spoke to Mr Walsh the Barrister of the Insurance company and advised that you should not contact me. [Pausing here, read in its most natural sense, this suggests a call was made “immediately” after Mr Doueihi gave evidence on 29 October 2025 – i.e., not as late as 5 November 2025 – which is consistent with the reference to “while the case was still ongoing” (i.e., before judgment was reserved), which would be

consistent with Mr Luitingh having spoken to Scopeview’s solicitor while the hearing was ongoing (since there is no suggestion that Mr Walsh was aware, prior to the 12 December 2025 foreshadowing of an application to reopen, that there had been any discussion or attempted discussion of the kind that took place after the hearing between Mr Doueihi and Mr Brown). When directions were made in February 2026, Mr Walsh’s position was that he did not know what Mr Doueihi might say about the matters to which Mr Rod had adverted in his affidavit.] After the case was finished I went to Fiji for a few days. I received several calls from you which I did not answer. Eventually I answered a call from you and we had a discussion in which you asked me to send you the transcript. I did that and you called me again. We had a discussion and you said the following to me. The transcript does not reflect what happened and the true events. You would like to rectify that, you were nervous and you felt intimidated and may have created the wrong impression but that you did undertake to inform the neighbours and provide the documents under conditions 13 and 14 of the DA and told me re not to worry about it you will do it. You informed me what to say to the Architect to talk to Zimmerman, that you were aware that I had no idea what the shoring system was about, that you explained sheet piling and

recommended that it be used and told me to tell the architect that, and the PCA. That you also said that I should sign the certificate because the requirements had been achieved. The most important [I interpose to note that Mr Brown accepted in cross-examination that this was the most important issue for him – saying at one stage that it was the only issue as he had been called a liar about this] is that in court you did not recall me having a conversation with you about sending documents to [the Stockley house] but have subsequently remembered I sent an email to you and you did not reply but you called me and said I should send the documents to [the Stockley house] but not to worry about [the Rayman house] because you would take care of it and ask the PCA to do the same. You told me you were not informed by the lawyers about the condition of the Settlement Deed and that the Deed was conditioned upon you acknowledging that you were responsible for providing notices or that you should not contact me. You said to me that you want to tell the judge that on reflection your evidence is inaccurate, and you want to rectify that. My lawyers have said you should speak to a lawyer about this. Mr Doueihi then deposed to a further telephone conversation with Mr Brown on 13 November 2025, again saying that he did not recall precisely what was said: 19 I had a further telephone conversation

with [Mr Brown] on Wednesday 13 November 2025. Again, I do not now recall precisely what was said, however I recall [Mr Brown] expressing his frustration with how the case had gone. [I allowed this paragraph over objection, subject to weight.] 20 I deny that that I said the words attributed to me in paragraph 6 of the Brown Affidavit [sic] 21 I deny that I said the words attributed to me in paragraph 7 of the Brown Affidavit. I recall that I did agree that Jonathan played no role in causing any physical damage. I believe I said words to the effect, “The damage was caused by the sheet piling contractor”. 22 I do not believe I said the words attributed to me in paragraph 8 of the Brown Affidavit. However, it is true that the suggestion to use sheet piling came from me rather than [Mr Brown] and that the consultants, Meso, VMS and EIA, were paid by Scopeview. 23 I deny that I said the words attributed to me in paragraph 9 of the Brown Affidavit. It was [Mr Brown] who asked me whether I could seek legal advice. He said words to the effect: Jonathan: Would you be willing to speak with a lawyer and obtain independent advice? We will get a lawyer to ring you. 24 I deny that I said the words attributed to me in paragraph 10 of the Brown Affidavit. I do not consider myself to be the person responsible for the damage and I did not say this to [Mr Brown]. 25 I do not now recall if I said

the words attributed to me in paragraph 11 of the Brown Affidavit. It is true that I had assumed the certifier would send the notification of the works to the neighbours. I believe I may have said this to Jonathan during our telephone conversation on 13 November 2025, although I do not now recall. [I provisionally read the words italicised in this paragraph. Ms Rayman had objected to those as going beyond the scope of leave. Nothing turns on this because Mr Doueihi gave that evidence as to his assumption as to the certifier in his evidence at the hearing in any event, as set out already.] As to [15] of Mr Brown’s first reopening affidavit, in which he deposed that Mr Doueihi said to him that he had consulted an independent lawyer on 16 November 2025, Mr Doueihi deposed: 29 I did not say the words attributed to me in paragraph 15 of the Brown Affidavit. I did receive a call from a lawyer the following day, 14 November 2025, which I address below. … 30 On Friday 14 November 2025, I received a telephone call from Jodie Gwynn-Jones, a lawyer from Harper Jones Lawyers. She said words to the effect, Ms Gwynn-Jones: I have been asked to give you a call about you being a witness in a case. I understand you want to ask some questions. 31 I assumed from my conversation with [Mr Brown] the day before that [Mr Brown] or his lawyer, David Rod, had asked her to call me. 32 We agreed to

discuss with her on Monday 17 November 2025. 33 On Monday 17 November 2025, I spoke with Ms Gwynn-Jones by telephone for approximately 15 to 20 minutes. I have been informed by the lawyers acting for me in this case that my discussion with her is privileged. I do not wish to waive privilege by disclosing it. Mr Doueihi then deposed to a conversation with Mr Brown on 17 November 2025 as follows: 34 At 12:26 pm on Monday 17 November 2025, I had a missed call from [Mr Brown]. 35 I telephoned him back at 1:22 pm and we spoke. 36 I recall that during this conversation I told him I had been contacted by a lawyer. We had a conversation to the following effect. Me: I don’t know who got the lawyer to ring me. Jonathan: I don’t know either. It could have been someone from my legal team. … 38 I refer to the words attributed to me in paragraph 16 of the Brown Affidavit [i.e., that the failure to send neighbour notification emails was just an administrative error and that Scopeview had done everything “by the book”]. I believe I did say these words, however they have been taken out of context. [The italicised words were read as an assertion]. … [Mr Brown] … said words to the effect, Jonathan: They’re going to blame everything on me because I signed a document saying I complied with all conditions and part of that condition was to send a neighbour notification. … 41 I deny saying the words

attributed to me in paragraph 17 of the Brown Affidavit [i.e., that he recalled the conversation on 2 March 2020 and that he said to Mr Brown “Don’t worry leave it with me”]. I did not, and do not, have a recollection of saying to Jonathan on 2 March 2020 that he should leave notifying the neighbours to me. If such a conversation occurred, I may have said, “leave it with me”, as that is an expression I commonly use. However, I do not recall having any such discussion. 42 I do not believe I said the words attributed to me in paragraph 18 of the Brown Affidavit [i.e., that he had consulted an independent lawyer who had told him that correcting his evidence would not alter the case because the matter was based on facts and expert evidence and might expose him to legal consequences]. I provisionally rejected [43] of Mr Doueihi’s affidavit on the basis of the objection that it went beyond the grant of leave (this paragraph was responding to [19] of Mr Brown’s affidavit that I had also provisionally rejected). Mr Doueihi then deposed as follows as to the conversation on 18 November 2025 (I am here omitting the parts of his affidavit that were rejected or provisionally rejected as going beyond the scope of leave and/or irrelevant): 44 On Tuesday 18 November 2025, I was scheduled to meet a waterproofer at [Mr Brown]’s house to inspect a leaking planter box. The waterproofer cancelled

the meeting when I was near to [Mr Brown]’s house about 5 minutes before we were due to meet. My project manager, Maroun Sara, was with me in the car. 45 When I arrived at [Mr Brown]’s house, I went into the house with the intention of having a look at the planter box. Mr Sara went with me. 46 [Mr Brown] was at home and we had a conversation at the dining table. Mr Sara was with us. [Mr Brown had made no reference in his first reopening affidavit to Mr Sara being present at the conversation] … 48 [Mr Brown] made a call a couple of times in my presence. I understood from what I heard that Mr Rod was going to call him back. 49 [Mr Brown] called again. He put Mr Rod on speaker. … 51 I assumed Mr Rod knew more than me. 52 I recall Mr Rod and I then had a conversation to the effect: David Rod: Cameron. did you receive an email that formed part of the deed from your lawyers Me: No. I wasn’t aware of any email being part of the deed when I signed. David Rod: OK. 53 I disagree Mr Rod said, “I cannot speak with Cameron” as is stated in paragraph 21 of the Brown Affidavit and paragraph 14 of the Rod Affidavit. I recall that what he said was: David Rod: Jonathan, Cameron will need to speak with an independent lawyer as I cannot be giving him advice. 54 I recall there was a discussion to the following effect. Jonathan: Cameron has said he may have said “leave it with me’’ during our phone

call on March 20. Me. [sic] I want to make myself clear that I don’t recall the conversation but the words “leave it with me” is something that I usually say David Rod: Cameron, you need to speak with an independent lawyer or I can write something up for you and send it to Jonathan. 55 Mr Rod said he wanted me to write a letter to him. I recall he said words to the effect of: David Rod: You can say in the letter you want to make yourself clear about that phone call with Jonathan in March 2020 [sic] You want to clear up your evidence. 56 I recall saying to him: Me. [sic] I don’t recall that conversation. 57 I do not now recall everything Mr Rod said I should say in the letter. l remember him suggesting I say, “You have been struggling to sleep at night.” 58 I recall saying: Me: I want you to only speak with my lawyers (Wotton+Kearney). 59 Mr Rod then said to me: David Rod: I will draft a letter for you to send to me. Me: I am only comfortable moving forward if all communications are directed through Wotton+Kearney 60 I do not believe I said the things attributed to me in paragraph 22 of the Brown Affidavit [i.e., relevantly, that he had consulted a lawyer]. 61 I deny I said the words attributed to me in paragraph 23 of the Brown Affidavit [i.e., that during the call on 2 March 2020, when Mr Brown asked about notifying the neighbours, he said to Mr Brown “leave it with me”]. I

still do not recall any conversation with [Mr Brown] on 20 March 2020 [sic; Mr Doueihi accepted in cross-examination that this and the following date should have been 2 not 20 March 2020]. I do not deny that we had a conversation on 20 March 2020, however I have no recollection of a conversation on this date. As to Mr Rod’s reopening affidavit, Mr Doueihi denied at [62] that he had a conversation with Mr Rod in terms of [14] of that affidavit (which, relevantly, went to Mr Doueihi having advised him that he had already obtained independent legal advice and that Mr Doueihi “simply wanted [Mr Rod] to listen to what he was saying to [Mr Brown]” and that Mr Doueihi said that his evidence on 29 October 2025 was not accurate and could be misleading and that he wished to correct those aspects of his evidence given at the trial). Mr Doueihi deposed that “I deny that I gave evidence to the Court that was incorrect or inaccurate. I do not wish to correct or change my evidence” (at [62]). Mr Doueihi deposed at [63] that he did not say the words attributed to him at, relevantly, [15] and [17]-[22] of Mr Rod’s reopening affidavit (at [63]) (certain paragraphs of Mr Rod’s reopening affidavit to which Mr Doueihi there referred ([17] and [21]) were not read as going beyond the scope of the leave granted and for the latter on the basis that the transcript will speak for itself). Mr Doueihi from

[64] referred to Mr Rod’s typed file note and then deposed that: 65 It is not true that I was upset about the evidence I had given in Court. 66 It is not true that I wanted to speak to Mr Rod. I did not want to speak to him. 67 I do not agree that Mr Rod said he could not speak to me. What he said was that he could not give me advice. 68 I deny that I said the things that are attributed to me in the file note. As to the draft letter prepared by Mr Rod, Mr Doueihi deposed as follows: 69 I received an email from Jonathan at 9:30 pm on 18 November 2025, a copy of which appears at Annexure C. In the email, Jonathan stated, Hi Cameron. Would it be possible to get a copy of your mobile records from your bills between January to end of April 2020. Just want to check if any of the dates of the phone call on Monday 2nd March 2020 correspond. See below 70 The email below was an email from Mr Rod to [Mr Brown] sent at 6:32 pm that evening, 18 November 2025, which stated, “Here is draft letter’’. 71 Attached to the email was a Microsoft Word file titled “CAMERON.docx”. A copy of the attachment appears at Annexure D. 72 I opened the attachment. It appeared to be a draft letter addressed to Mr Rod from me which I assumed had been prepared by Mr Rod to be signed by me. The contents of the draft letter did not reflect my understanding of events. l was not involved in preparing the draft

letter. A lot of the things in the draft letter were things Mr Rod had said to me when he spoke to me earlier that day by speakerphone. I do not agree with the contents of the draft letter. I was not prepared to sign the letter. 73 I did not respond to Jonathan’s email. Mr Doueihi deposed that he received a telephone call at 1:16 pm on 19 November 2025 from Mr Brown in which Mr Brown asked if he had received the email from him and Mr Doueihi deposed that he said “Yes. I did. Sorry. Jonathan. I won’t be doing that”, by which he said he meant that he would not be signing the draft letter (at [74]-[75]); and that he received a further email from Mr Brown at 11:05 am on 21 November 2025 forwarding an “updated letter” (Annexure E to Mr Doueihi’s affidavit, which amended the reference in the initial draft to “letters” to refer instead to “emails” and which included a missing date for the letter Mr Doueihi received from Mr Brown as “Sun, 1 Mar 2020, 21:01”) (at [76]-[77]). Mr Doueihi deposed that he did not agree with the contents of the further draft letter and was not prepared to sign it (at [78]). Mr Brown of his reopening affidavit (at [27]) had deposed that between late November and mid-December 2025 he had “many further calls” with Mr Doueihi in which the latter had said various things to him. At [83] of his affidavit, Mr Doueihi denied that he said the things attributed to him

in [28]-[30] of Mr Brown’s reopening affidavit (relevantly, that he had said that “some facts at trial did not come out as intended” and that “I want to correct my evidence”). At [88]-[89], Mr Doueihi deposed to checks he had made on 24 and 25 February 2026 of the call history on his mobile telephone of calls made to and from Mr Brown’s mobile number for the period of November and December 2025 and attached screenshots of that call history (which did not go back further than 17 November 2025). Mr Sara Mr Sara deposed that he is a project manager employed by Scopeview (at [1]); that he is a carpenter by trade and has been employed by Scopeview for three years but before being employed directly by Scopeview he worked for Scopeview in a self-employed capacity (at [2]). Mr Sara deposed to the circumstances in which he went with Mr Doueihi to Mr Brown’s house on 18 November 2025 (consistently with Mr Doueihi’s account) (see at [3]-[4]) and said that his recollection is that Mr Doueihi and Mr Brown started by having a friendly chat (making reference to the waterproofing issue) (at [6]) and then to a conversation about the court case in which Mr Doueihi asked Mr Brown how he was feeling and Mr Brown said: “The other day I was depressed. I felt like, I’m a good guy. I don’t know why this is happening to me” (at [7]). Mr Sara then deposed that: 8 I remember [Mr Brown] said something

about something Cameron forgot to mention in Court. As best I can remember, [Mr Brown] said: Jonathan: My lawyer wants to have a chat to you and sign something saying you forgot to mention something”. 9 I remember [Mr Brown] using his phone to contact his lawyer and the lawyer did not answer. Then [Mr Brown] called again and he said something. Then he put the lawyer on speakerphone. … 12 I remember the lawyer saying he would write a letter for [Mr Doueihi] to sign and email privately to [Mr Brown]. … 13 My memory of the discussion was that it went something like: Lawyer: We need you to write a letter saying that you forgot this information. Lawyer: I can help guide you and tell you how to do it and what to write. You sign it and send it to [Mr Brown]. Lawyer: You say you were overwhelmed. You were confused. You forgot to mention it on the day you went to Court. You went home. You slept on it. The next day you remembered something you forgot to mention in Court. That way we can restart the Court case. 14 I remember the discussion between the lawyer and [Mr Doueihi] went back and forth. I remember the lawyer saying words to the effect: Lawyer: It’s not going to affect you. It won’t affect your family. I’ll look after you. I’II help you. 15 I remember [Mr Doueihi] saying things like: Cameron: No, I don’t feel comfortable. You just want me to say something I didn’t do. Cameron: Why

does this affect me? I don’t have to be talking to [Mr Brown]. My insurance is looking after this. Mr Sara then deposed that he was asked whether he remembered certain things being said during the conversation with the lawyer on the speakerphone and gave his responses as follows: 16 I have been asked whether I remember hearing the following things said during the conversation with the lawyer on speakerphone: (a) Jonathan [Mr Brown] saying to the lawyer that “Cameron [Mr Doueihi] has confirmed to me that he was very upset about the evidence he had given in court. He wants to speak to you.” I do not remember Jonathan saying this. (b) The lawyer saying to Cameron, “I have to let you know that I cannot speak with you. You need to obtain advice from an independent lawyer.” I do not remember the lawyer saying he could not speak to Cameron. My memory is that that the lawyer said he could guide Cameron and tell him how to write the letter. (c) Cameron saying, “I have already consulted an independent lawyer. Could you just listen to what I have told Jonathan.” I do not remember Cameron saying this. My memory is that Cameron said his insurance was looking after this. (d) Cameron saying to Jonathan, “I was extremely uncomfortable with what had happened in court because I felt that the way I had phrased some of my responses did not accurately reflect what had occurred.” I do not remember

Cameron saying this. (e) Cameron saying, “Jonathan has given me a copy of the transcript of my evidence.” I do not remember Cameron saying this. (f) Cameron saying, “I felt let down by Wotton Kearney. I felt they had pulled the wool over my eyes and that they were representing the interests of their real client, the insurer.” I do not remember Cameron saying this. (g) Cameron saying, “I am afraid that if I approach Wotton Kearney to correct my evidence, the insurer will come after me. This possibility terrifies me.” I do not remember Cameron saying this. My memory is that it was the other way round, that is, it was the lawyer who was saying to Cameron that he had forgotten to mention something in Court. (h) The lawyer saying, “Cameron I really think it be appropriate for you to again talk to your independent legal advice. If you are not happy with advice received to date, I can recommend several solicitors you could speak with.” I do not remember the lawyer saying this. (i) Cameron saying, “Ok let me think about it. I do however want to tell you that after reading the transcript with Jonathan, I realised that my evidence had not been complete and that I should have been more forthright and clearer in my responses.” I do not remember Cameron saying this. My memory is that it was the lawyer who said he wanted Cameron to sign a letter saying Cameron was confused and that he wanted

to change what he had said in Court. (j) Cameron saying, “On the day I gave evidence, I felt intimidated by the questions and by the court process. I have been unable to sleep since giving my evidence.” I do not remember Cameron saying this. (k) Cameron saying, “I do not want the inaccuracies in my evidence to stand. I believe the Court should be advised of the inaccuracies.” I did not hear Cameron say this. (I) Cameron saying, “After consulting my telephone records, I can confirm I did speak to Jonathan on 2 March 2020 in relation to Jonathan’s email dated I [sic] March 2020.” I do not remember Cameron saying this. (m) Cameron saying, “I recall that I said to Jonathan that Jonathan need not advise the neighbours at 64 about conditions 13 and 14 of the development application because Jonathan could leave it to me.” I do not remember Cameron saying this. (n) Cameron saying, “I am adamant that I told Jonathan not to concern himself with the conditions because I would attend to them on Jonathan’s behalf.” I did not hear Cameron say this. (o) Cameron saying, “I recall telling Jonathan that I would attend to complying with the development application conditions and that I would ask Jonathan to write letters, if needed.” I do not remember Cameron saying this. (p) Cameron saying, “As far as I know, Jonathan advised the other neighbours of what was happening on site.” I remember

something like this being said. My recollection is that Cameron said something like, “Jonathan, you should have advised the neighbours what was going on” and that Jonathan said something. I do not remember if Jonathan said he did or didn’t advise the neighbours. (q) Cameron saying, “In relation to Jonathan signing the development application and confirming that all conditions had been met, based on advice from the private certifier, I told Jonathan that all conditions had been met.” I did not hear Cameron say anything like this. … (t) Cameron saying, “I want to rectify my evidence but do not want the Curt [sic, Court] to think I am a liar. I just want to correct my evidence because I felt I had not properly understood the questions and had not given complete answers, which may have affected how my responses appeared in the transcript.” I did not hear Cameron saying anything like this. My memory is that the lawyer wanted Cameron to rectify what he said in Court. (u) Cameron saying, “I will inform the insurance solicitors and, if necessary, make myself available to give this evidence in court.” I do not remember Cameron saying this. (v) Cameron saying, “I note you have told me to obtain independent legal advice and I confirm that I have already done so.” Reply affidavits on reopening Ms Brown then filed two affidavits in reply: an affidavit affirmed on 18 March 2026 by Mr Rod

responding to various matters set out in Mr Doueihi’s affidavit of 26 February 2026 and an affidavit affirmed on 19 March 2026 by Mr Brown. In Mr Brown’s reply affidavit, Mr Brown deposed as follows concerning the communications he had with Mr Doueihi following the hearing in these proceedings, stating that the purpose of his affidavit was to “place before the Court evidence which is relevant to assessing the evidence given by Cameron Doueihi at trial and in his affidavit, evidence of 26 February 2026” (at [7]). Parts of the affidavit in reply repeated content in his first reopening affidavit but there were some significant additions thereto. Mr Brown deposed that, after the trial he went overseas and that he was contacted twice by Mr Doueihi while overseas and that he did not take his calls (at [8]). At [9], he deposed that “[e]ventually, on 13 November 2025 and 17 November 2025” he spoke to Mr Doueihi. Mr Brown annexed telephone records that he said evidenced those calls (seemingly referring to the communications on 11 to 13 November 2025 as per the heading to [10]). Mr Brown deposed that, on 13 November 2025, he had a conversation with Mr Doueihi in which he said words to the following effect, “I want to correct matters which I believe have been inaccurately presented” and “I am willing to do whatever is necessary to demonstrate that I was the responsible person and I need

to correct the record without exposing myself to unnecessary risk” (at [11]). (This repeats what Mr Brown deposed to in the first reopening affidavit (see above).) As to the 17 November 2025 conversation, Mr Brown deposed that it was a lengthy telephone conversation and that, during that conversation, Mr Doueihi made a number of statements which he (Mr Brown) clearly recalled: that Mr Doueihi had told his independent lawyer that he wanted “to make himself a bit more clear” (at [15]); that Mr Doueihi thought he had thrown Mr Brown “under the bus” (at [16]); and that Mr Doueihi wanted to give an “affidavit to his lawyers” to “rectify the wrong impression” he may have created and said “I really need to be careful what I say” (emphasis as per Mr Brown’s affidavit) (see [13]-[16]; [18]). Mr Brown then referred to his evidence at the hearing as to the telephone conversation of 2 March 2020 and to the fact that it was put to him that his evidence that Mr Doueihi had told him to “leave it to me” (in response to his question “what about Errol and Avron?” was said not to be truthful (at [19]-[20])). Mr Brown deposed that during the conversation on 17 November 2025 he said words to Mr Doueihi to the effect “Cam, I would have sent it … I wanted to send it to everyone … you said ‘leave it to me’” and that Mr Doueihi responded, “Yeah, that’s right Jonathan … that’s right … and even if I did

say it and it did not get sent …” and that Mr Doueihi said that “the failure to send neighbour notification emails was just an administrative error” (at [22]). At [24], (which I read subject to relevance), Mr Brown deposed that, on 17 November 2025, Mr Doueihi said to him that he did not want “another lawyer” but that he had spoken to an independent lawyer, whose name he would not say, and that this lawyer’s advice was “you have given your evidence and you shouldn’t be tampering with it”; and that he (Mr Doueihi) said that he later spoke to another independent lawyer for an hour; and, of this lawyer that “she is completely independent”; and said that “the judge put no weight on ‘leave it with me’” (at [24]). At [32], Mr Brown referred to [44] of Mr Doueihi’s affidavit (as to the reason Mr Doueihi had come to his (Mr Brown’s) place on 18 November 2025) and said that the reason Mr Doueihi came to his place “was not only to inspect the planter box” but also because, on or about 13 November 2025, in a call with Mr Doueihi they were discussing what Mr Brown called the “deed of settlement covering letter”. Mr Brown agreed that Mr Sara was with Mr Doueihi and sat down at the dining room table with him (at [33]). Mr Brown deposed that his wife was also there but was not involved in the conversation and did not sit at the table (at [33]). Mr Brown referred to [53] of Mr Doueihi’s

affidavit, where Mr Doueihi disagreed that Mr Rod had said “I cannot speak with Cameron”, and deposed that Mr Rod “said directly to Cameron” that “[y]ou need to get independent legal advice” and that Mr Rod said to all of them “I cannot represent or advise Cameron” (at [35]). Mr Brown then gave his account of the conversation that Mr Doueihi had recounted at [54] of his affidavit (at [36]): Me: I clearly recall Cameron saying to me on 2 March 2020 “leave it with me”. That is something he always said.” I had previously shown David Rod my phone records for that date and there is a record of a call from me to Cameron that went for 8 minutes. At this meeting, I do not recall Cameron saying that he did not recall the conversation of 2 March 2020. At [37], Mr Brown gave his account of the conversation recorded by Mr Doueihi in his affidavit at [55] (where Mr Doueihi said that Mr Rod said he wanted Mr Doueihi to write a letter to him). Mr Brown deposed that “[t]here was more to this conversation and it took place at the beginning of our call” and went on to depose that (at [37]): For background, (a) the reason I got David on the call was because Cameron had had a long conversation before this one on 5 November 2024 which I recount below. (b) I did not take Cameron’s first 2 calls, but did take the 3rd call on the 5th November 2025. In this call I said in words to the following

effect: Me: I was rather disgruntled with the way you had replied to your questioning in the witness box regarding the conditions that were set out by council (clause No13), notifying Errol and Avron. (c) We briefly discussed the telephone call we had on 2 March 2020 after I had received an email from Stockley at [the Stockley house] in words to the following effect: Me: I have a call log on my phone on 2 March 2020 Cameron: “I remember having the phone call with you that day” Me: On that call you said to leave it with you Cameron: “Yes “leave it with me” is the term I remember using. Me: “But that’s not how you replied to Klooster/Martin when you were in the witness box. Cameron “I thought I made it clear. Me: “Let me send you the court transcripts and you can read it yourself.” Cameron: “Jonathan, you are a good client of mine, and you are not responsible for any of this, they should be suing me not you and if it did not come out that way I would be willing to rectify it” “There are a few other points I would like to clarify at the same time.” (d) The few that I can briefly remember was about the basement photo that was not on the dilapidation report, uncertainty of the date of the contract, and something about alert levels, vibration mils per second and the basement. (e) In this conversation on 18 November 2025, with David Rod on the phone I recall that the following was

said in words to the following effect: Cameron: “I don’t know how to go about correcting my evidence. David: Cameron if you want to correct the record you need to speak to Wotton + Kearney. Cameron: I believe Wotton + Kearney are acting for the insurer. I believe they pulled the wool over my eyes. David: You need to see an independent lawyer. Cameron: Can you write something up for me. As to [57] of Mr Doueihi’s affidavit, where he deposed that Mr Rod suggested he say that “[y]ou [i.e., Mr Doueihi] have been struggling to sleep at night”, Mr Brown deposed (at [38]) that he recalled Mr Doueihi saying, “I have been uncomfortable with what transpired in the witness box. It has been on my mind”. As to [58] of Mr Doueihi’s affidavit (where he deposed that he had said “I want you only to speak with my lawyers (Wotton+Kearney)”), Mr Brown deposed that this was untrue and that at one stage he (Mr Brown) said to Mr Doueihi that “Wotton + Kearney aren’t really representing you, they are representing their insurers” but Mr Rod told him he was wrong and that they were representing Mr Doueihi (at [40]). (Pausing here, it is unsurprising, on this account of what was said, that Mr Doueihi may have formed the view that his solicitors were really acting for the insurer since this is what Mr Brown was telling him.) Finally, as to [59] of Mr Doueihi’s affidavit (where he deposed that Mr Rod had

said to him “I will draft a letter for you to send to me” and Mr Doueihi said that he was only comfortable moving forward if all communications came from Wotton Kearney), Mr Brown deposed that (at [40]): … Originally [Mr Doueihi] asked [Mr Rod] to draft a letter and [Mr Doueihi] said he would read through it. He did not say to [Mr Rod] to only direct communication through Wotton + Kearney. The letter was sent to me and I sent it to [Mr Doueihi]. Well after this time, on 21 November 2025, [Mr Doueihi] said to me in a long 2-hour conversation that he wanted all correspondence to go through Wotton + Kearney. As to Mr Sara’s affidavit, Mr Brown said that [8], [11], [12] and [13] were “absolutely incorrect” (at [41]-[44]) and [4] was “absolutely wrong” (at [45]). Mr Brown deposed that it was after Mr Doueihi had said he wanted to rectify his evidence that he (Mr Brown) said that he wanted to get Mr Rod on the phone; that there was no discussion about sheet piling at this meeting; and that they were only discussing that Mr Doueihi said that he would notify the neighbours “when we would start building” (at [41]-[43]). At [44], Mr Brown deposed that: … David did not say “we need you to write a letter”. He did not say “I can help guide you and tell you how to do it and what to write. You sign it and send it to Jonathan”. He did not say “you were overwhelmed” and the other things in this

paragraph. David said that he would draft something and give it to me for discussion with Cameron. [emphasis in original] At [46], Mr Brown deposed that Mr Doueihi did say something “to the nature that he is covered by his insurance and that insurer would be taking care of this” and went on to depose that “He [Mr Doueihi] said “this is why I have the HIA policy; it is to cover me in instances like this”. He did not say “why does this affect me””. Mr Brown then deposed that various statements in [16] of Mr Sara’s affidavit that were attributed to him or to Mr Doueihi either did or did not take place (at [47]). As noted, Mr Rod’s second reopening affidavit responded to various matters set out in Mr Doueihi’s affidavit. It is not necessary here to set those out. It is worth noting at this point that the first set of affidavit evidence relied on by Mr Brown on the reopening application records Mr Rod as solicitor on the record whereas the affidavits in reply record Ms Button as solicitor on the record. Grant of leave to reopen on limited issue As noted above, there was an application at the outset of the hearing of the notice of motion on 20 March 2026 to adjourn the hearing of the reopening application. I rejected this for the reasons already explained. I granted the application to reopen (confined to the limited issue already explained) for the following reasons. I propose only

briefly to summarise the various submissions made in support for and in opposition to the grant of leave to reopen. However, it is necessary to note the broader scope of the application as put by Ms Brown than that which was ultimately granted. Ms Brown initially identified the issues the subject of the evidence she sought to adduce if the hearing were to be reopened as relating to the following matters: first, the responsibility of Mr Doueihi for giving and/or service of notice to adjoining owners of the Brown Land in relation to the works; second, Mr Doueihi advising Mr Brown to sign the Conditions of Development Consent; third, the authorship and circumstances of correspondence sent to the certifier (including correspondence for the attention of Mr Zimmerman) concerning the change of methodology to sheet piling on 9 April 2020 (referring in this regard to the transcript at 29/10/2025; T 239.14-15); fourth, the decision of Mr Doueihi to change to sheet piling; and, fifth, the settlement and conditions of settlement between Ms Brown and Scopeview. As to the first four of those matters, Scopeview argued that: the first (responsibility for giving and service of notice to adjoining owners in relation to the works), is a question of law; the second (the circumstances in which Mr Brown signed the relevant Conditions of the Development Consent), if relevant to the pleaded issue of

breach of statutory duty, was highly marginal; the third (authorship and circumstances of correspondence to the certifier concerning the change to sheet piling) was, again, if relevant to the pleaded issue, highly marginal; and the fourth (the decision making process and responsibility for change to sheet piling) was not in contest given that Mr Doueihi had accepted at the hearing that he made that decision (29/10/25; T 238.8-35) and that he had to comply with the conditions of the Development Consent (referring to 29/10/25; T 234); and referring to the closing submissions made for Scopeview on 31 October 2025 (31/10/25 T 440.41-47). As to the last of those matters (the settlement between Ms Brown and Scopeview), Ms Brown’s application was made in circumstances where the issue had been raised during the course of the hearing and it seems a forensic decision was taken not to pursue it at that stage. Ms Brown candidly acknowledged that the application to reopen related to cross-examination of Mr Brown at the hearing. Ms Brown argued that, insofar as it was suggested in his cross-examination that Mr Brown had greater involvement in the building operations than Mr Brown contended, Ms Rayman’s case as conducted had expanded beyond the pleaded “notice” case “into a narrative of direct owner involvement”. Ms Brown argued that responsibility for notice therefore became central “not

only to liability but also to a critical credibility contest”. Ms Brown contended that the new evidence sought to be adduced was directly material, going to what she described as the “core forensic controversy” at the hearing (which she identified as being: whether she knowingly proceeded in breach of consent requirements; the accusation of untruthfulness on Mr Brown’s part; the credibility contest between Mr Brown and Mr Doueihi (referring to 28/10/25; T 170.5-17); and, as adverted to above, what Ms Brown described as Ms Rayman’s “expanded narrative of owner involvement in the construction”). In her initial submissions on the reopening application Ms Brown argued that the “corrected evidence” materially affected the credibility contest and the proper evaluation of foreseeability, breach and causation; and Ms Brown argued that the matter should not be determined on the basis of evidence now admitted by Mr Doueihi to be inaccurate on a central issue. The force of that submission was of course greatly diminished when it became obvious from the affidavit sworn by Mr Doueihi on the reopening application that Mr Doueihi disputed any such acknowledgement of inaccuracy in his evidence. What Ms Brown then argued, in reply submissions, was that the evidence she sought leave to adduce was not “merely directed to credit”, and was therefore not collateral (as the respondents to the motion

contended); rather that it went to primary facts in issue, namely: who bore responsibility for neighbour notification; whether Mr Doueihi assumed that responsibility; who controlled the piling methodology; the allocation of contractual and practical responsibility; and Mr Doueihi’s discomfort at having given potentially misleading evidence. Ms Brown argued that these matters were central to liability (being relevant to foreseeability). Again, the last assumes acceptance of the accounts given by Mr Brown and Mr Rod on the reopening application. As I understood the submissions, Ms Brown, in substance contended that the negligence claim could not succeed on the issues raised as to “operational construction” matters and hence the weight she attributed to the new evidence as going to the only remaining basis of the pleaded claim – the failure to give notice to Ms Rayman of the excavation works within the required time and the failure to provide her with the requisite reports. As to the rule in Goldsmith v Sandilands (2002) 76 ALJR 1024; [2002] HCA 31 (Goldsmith v Sandilands) (relied upon by Scopeview in resisting the application to reopen), Ms Brown argued that this rule applies to a contradiction of answers on pure credit issues and that the present case is fundamentally different (being, in her submission, “not merely impeachment material” but, rather, “admissions directly bearing

on facts in issue”). Ms Brown argued that the material differences in the evidence filed on the reopening application as to what Mr Doueihi said in the conversations after the hearing in relation to his evidence at the hearing are material to the adjudication of the case. Ms Brown rejected the propositions put by the respondents to the motion that: the application was an impermissible attempt to “re-agitate” matters; that the evidence was collateral or irrelevant; and that the threshold for reopening had not been met. Rather, Ms Brown contended that the evidence was fresh, reliable, contains admissions, went to the central issue or issues in the case (identified in supplementary submissions on the reopening in a slightly narrower way as who bore responsibility for giving notice to the adjoining owner; and whether Scopeview expressly assumed that responsibility; whether Mr Brown was told by Mr Doueihi to leave the notification to Ms Rayman to Mr Doueihi or whether that was untruthful evidence and that the interests of justice require it to be considered). Ms Brown asserted that the reopening was not sought to fill gaps or run a new case; rather it was directed to ensuring the matter was determined on an accurate evidentiary foundation. Credibility was emphasised in the oral submissions for Ms Brown on the reopening application. Counsel for Ms Brown (Mr Luitingh) identified the

issue as being whether Mr Doueihi was candid when he gave his evidence (20/03/26; T 16). Mr Luitingh submitted that credibility was an issue that had become heightened as a result of the evidence filed by Mr Sara as well as Mr Doueihi on the reopening application. Mr Luitingh contended that if Mr Doueihi could not be believed (as he contended was the case) in relation to the disputed 2 March 2020 conversation then that left only the version of events deposed to by Mr Brown and Mr Luitingh argued that if Mr Brown’s evidence was accepted this went to the issue of whether the damage should have been foreseen (20/03/26; T 16-17). Mr Luitingh said that he did not have a basis to accuse Mr Doueihi of being “duplicitous” or “dishonest” when he cross-examined him at the first hearing because Mr Luitingh needed to clear up an issue in relation to the settlement deed that had been entered into between Ms Brown and Scopeview (20/03/26; T 15). In that regard, Mr Luitingh went so far as to suggest that he did not know if the matter had in fact been settled (on the basis that a condition preceded thereto was not met) but then said that he was not sure that the settlement in and of itself was the issue in the matter (20/03/2026; T 16). In written submissions it was said that Ms Brown said could not have anticipated that Mr Doueihi would deny the various matters that he did in the witness box

and that, once the denial was given, Ms Brown was not in a position to compel Mr Doueihi to “correct” his evidence mid-trial, as (in the light of the condition of settlement between Ms Brown and Scopeview) counsel did not know if Mr Doueihi was mistaken, did not understand the settlement or if there was a misunderstanding as to this issue. Ms Brown submitted that no irremediable prejudice would be suffered if the reopening were confined to the discrete issue that she had identified and that any prejudice could be cured by: permitting Ms Rayman to cross-examine Mr Doueihi; permitting Ms Rayman to adduce short responsive evidence; and appropriate costs orders. On the other hand, Ms Brown submitted that refusal to reopen would risk serious injustice to Mr Brown by leaving uncorrected evidence which materially affected the credibility contest and the case advanced at trial. The respondents to the motion argued that it should be refused but that, if granted, the reopening should be limited to the disputed 2 March 2020 conversation, the subject of the telephone call on 18 November 2025. The respondents further submitted that the costs of the reopening should be borne by Ms Brown, irrespective of the outcome of the final hearing (Ms Rayman, in particular, arguing that the reopening hearing had arisen through no fault whatsoever on her part and emphasising the desirability of bringing

finality to the dispute; Scopeview arguing that Ms Brown was seeking an indulgence to re-agitate issues that ought to have been addressed at the hearing). Scopeview further argued that Ms Brown should pay the costs of Mr Doueihi obtaining separate legal advice and representation on the application for leave to reopen. Ms Rayman argued that the disputed telephone call should not be used as a “back-door method” for Ms Brown to reargue her case (28/10/26; T 43) and now (for the first time) seek to impugn Mr Doueihi’s honesty and integrity with respect to the notification issue, particularly in circumstances where: Mr Doueihi’s evidence on the contested issue was not directly challenged in cross-examination; it was not squarely put to Mr Doueihi that he was not being honest when he gave evidence on the notification issue; and Mr Brown was present in court the entire time Mr Doueihi gave evidence. Ms Rayman argued that, if Mr Doueihi was not being honest, instructions could have been provided and direct propositions put to Mr Doueihi about his honesty and integrity on the notification issue and Ms Rayman pointed out that there is no affidavit evidence from Ms Brown or Mr Brown explaining why this step was not followed at that time. Scopeview adopted Ms Rayman’s submissions on the reopening application (save with respect to costs) and argued that, in effect, Ms Brown was seeking a

further hearing to adjudicate a fresh credit contest in order to adjudicate an existing credit contest. Further, Scopeview submitted that, depending on the findings made as to Ms Brown’s duty (i.e., whether any statutory duty on Ms Brown’s part to comply with the Conditions of the Development Consent in relation to notification to the neighbours was delegable or non-delegable), the further evidence Ms Brown sought leave to adduce may well be irrelevant to the case against her. In that regard, Scopeview submitted that the further evidence could only affect the outcome of Ms Rayman’s case against Ms Brown if this statutory duty was delegable (since, if the duty was non-delegable, whatever Mr Doueihi may have said to Mr Brown on 2 March 2020 and whatever responsibility Mr Doueihi may have assumed could not relieve Ms Brown’s liability for breach). As already adverted to, Scopeview further argued that the evidence Ms Brown sought leave to adduce was directed to a collateral issue and said that leave to reopen should be refused on this ground alone. Scopeview identified the relevant fact in issue on the reopening application as being whether Mr Brown (on behalf of Ms Brown) delegated to Mr Doueihi the responsibility to notify Ms Rayman of the shoring works. Scopeview said that a fact relevant to that fact in issue is whether, having provided the shoring design to Mr Stockley, Mr

Brown did not also provide the shoring design to Ms Rayman because Mr Doueihi assumed exclusive responsibility for doing so. Scopeview argued that the further evidence Ms Brown sought leave to reopen to adduce (that is, the evidence of the disputed conversations after the conclusion of the hearing) was clearly intended to attack Mr Doueihi’s credit in order to challenge the answers given by Mr Doueihi in cross-examination, and Scopeview maintained that this evidence was relevant only to a collateral fact and was not evidence that is relevant to a fact in issue or a fact relevant to a fact in issue (citing the High Court decision in Goldsmith v Sandilands in this regard). In reply oral submissions, Mr Luitingh harked back to the issue of credibility (saying that Counsel for Ms Rayman at the hearing, Mr Klooster, had opened Pandora’s Box in relation to this issue by accusing Mr Brown of being untruthful (20/03/26; T 50)) but rejected the suggestion that the nub of the application was the possibility that there might be an adverse credit finding against Mr Brown (20/03/26; T 50). As to the fact that there was no challenge to Mr Doueihi’s evidence at the hearing, Ms Brown argued that it was circumspect not to raise that issue without enquiring whether the evidence was dishonest or made in error (referring to a without prejudice communication not admitted in evidence on the

reopening application). Insofar as Ms Rayman contended that the application is a “back-door method” to impugn honesty; Ms Brown argued that this ignored the critical distinction that the evidence was not constructed “for the purpose of attack”; rather, it arose from the witness’ own post-trial statements. Ms Brown maintained that the Court was not being asked to infer dishonesty indirectly; rather, to consider direct admissions by the witness himself (whether deliberate or inadvertent or due to a misunderstanding). (In fact, ultimately the submission put by Mr Brown seemed to be that Mr Doueihi’s evidence was dishonest and that he should not be believed – except insofar as the evidence was favourable to her case.) As to the proposition that Ms Brown was impermissibly seeking to impugn the evidence of Mr Doueihi without having squarely put that proposition in cross-examination, Ms Brown argued that the obligation arising from Browne v Dunn (1893) 6 R 67 did not apply where there was not a fair opportunity and forensic basis to put a contradictory case at the time of hearing. Further, Mr Luitingh appeared to attach some significance to the fact that he had flagged at the time that there might be an issue about the settlement deed which might require an application for leave to reopen, pointing to the transcript where I had queried whether such an application was contemplated and

had pointed to the procedure under the rules for a reopening application. (Pausing here, I do not believe that I could fairly be said there to have been inviting any such application and I was certainly not giving, nor could I have given, any indication that such an application if made would be successful.) Nevertheless, Ms Brown argued that the fact that such an application was discussed confirmed that the issue was recognised as potentially requiring further evidence and that her position was not foreclosed by the manner in which the cross-examination proceeded. In summary, Ms Brown submitted that the proposed evidence: went to a determinative issue; might materially alter the findings made; and would ensure that the matter was not left to be determined on a potentially false factual premise. Ms Brown maintained that her application was confined and targeted, that it did not seek to re-litigate the case, but to correct a critical evidentiary gap and that any prejudice to the opposing parties could be cured, whereas refusal would carry a substantial risk of injustice for her. Reasons The Court has a broad discretion to reopen a case where required in the interests of justice (see Smith v New South Wales Bar Association (1992) 176 CLR 256 at 266-267). However, the jurisdiction to reopen is to be exercised “with great caution, having regard to the importance of the public

interest in the finality of litigation” (see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; (1993) 67 ALJR 270 (Autodesk), where Mason CJ then referred to the High Court’s observation in Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 that “[g]enerally speaking, the jurisdiction to reopen will not be exercised unless the applicant can show that by accident and without fault on his part he has not been heard”). Mason CJ said in Autodesk that (at 303): What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases. The heavy burden on a party seeking to reopen a case was emphasised in De L v Director-General, Department of Community Services (NSW) (No 2) (1997) 190 CLR 207 by Toohey, Gaudron, McHugh, Gummow and Kirby JJ (at 215). The relevant considerations include: whether the evidence is fresh or could not reasonably have been obtained earlier; whether it is credible and apparently reliable; whether it is material to the outcome; and the extent of any prejudice to the opposing party. The

discretion is directed to ensuring that the Court’s decision is made on the true factual position, particularly where credibility is engaged (State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3 at [75]-[78]). Having regard to the factors relevant to consider in deciding whether to accede to an application to reopen (see, for example, Bailey v Palonso [2020] NSWSC 1209 at [28]); the interests of justice (including the integrity of the fact-finding process); any prejudice to other parties; the reasons why the evidence was not led in the first place; whether or not it was a deliberate or tactical decision not to call the evidence at the time; any delay in making application; and the importance, relevance, probative value of proposed new evidence to issues in the case, I ultimately acceded to the application but, as noted earlier, I limited the grant of leave to reopen and to adduce further evidence to the issue of the disputed 2 March 2020 conversation. I accept that evidence of what was said in the 18 November 2025 conversation was necessarily fresh evidence, in the sense that it emerged only after the hearing. While I considered it clear from what was said in submissions made at the hearing that a deliberate forensic decision had been taken not to challenge Mr Doueihi’s truthfulness at the hearing as to the point now in issue

(see 31/10/25; T 415-417) and I accepted that there was no little force in the observation that Mr Luitingh could have taken steps at the time to obtain instructions on that issue (albeit that this would presumably have involved a request for an adjournment or to recall Mr Doueihi during the course of the hearing itself), I accept that Mr Luitingh considered he could not properly do so absent clarification of the issue concerning the so-called condition precedent to the settlement deed. As adverted to above, I do not accept that I encouraged the making of a reopening application after judgment was reserved simply by querying what Mr Luitingh was proposing in relation to the issue he had raised as to the settlement deed and pointing to the available procedure for such an application. While finality of litigation is an important consideration, here the reopening application was made before judgment in the matter, which to a large degree attenuates the concern as to the finality of litigation. Delay, while unfortunate, was not to my mind a determinative factor in this case as judgment was still reserved and the application was foreshadowed very shortly after the hearing (albeit regrettably not progressed with any expedition – due, I was told, to Mr Luitingh’s ill-health). As to the question of prejudice to the other parties, I considered that this could largely be met by costs

orders, the ability to cross-examine the witnesses (including Mr Rod and Mr Brown) on their affidavit evidence and setting a tight timetable for the reopened hearing. Insofar as Scopeview argued that the evidence might be irrelevant if any statutory duty of the kind it is alleged Ms Brown owed is non-delegable, I accepted that at the time of the reopening application that finding was yet to be made. Ms Brown, in her submissions argued that, even if the duty were non-delegable, the evidence remained relevant to factual causation, apportionment, credibility, and findings as to conduct and responsibility. While I accepted that there was a question as to whether the proposed new evidence was tainted by the same credibility issues that it was sought to be relied upon to resolve and that the evidence was not obviously so probative that it was not open to question, and while I accepted the undesirability of reopening the hearing on an issue in substance as to credit (noting the caution in Goldsmith v Sandilands) and the force of the submission that this was evidence going to a collateral fact, ultimately the determinative factor in my mind was the concern as to the integrity of the evidence on which my judgment was to be based (and the concern as to the serious issues raised in respect of the conduct of an officer of the Court if parts of Mr Doueihi’s affidavit evidence were to be

accepted). There was a direct contest between Mr Rod and Mr Brown on the one hand and Mr Doueihi and (less directly) Mr Sara on the other hand as to what was said in the 18 November 2025 conversation in relation to the disputed 2 March 2020 conversation. Moreover, that dispute raised real issues as to the conduct of a solicitor, as an officer of the Court, in participating in the conversation and then taking steps in relation to the reopening application (in which he was to be a critical witness) up to only shortly before the “newly instructed” solicitor took over the conduct of the matter as the solicitor on the record. In those circumstances I considered it incumbent for me to accede to the application for reopening notwithstanding that it raised credit issues (and had the flavour of an attempt to re-agitate and improve Ms Brown’s case). For that reason, I granted the limited leave to reopen. I did not allow the reopening to extend to issues in relation to the settlement deed (as that was not fresh evidence and could clearly have been dealt with before the conclusion of the first hearing even if that would have entailed an adjournment application at that stage) nor did I grant leave as to matters going to issues in the case already dealt with in evidence and in closing submissions (such as the circumstances in which the conditions of the Development Consent were certified by

Mr Brown to have been complied with) or conceded at the hearing (such as Mr Doueihi’s acceptance that he made the decision to change to sheet piling – though as I have already noted Mr Brown clearly endorsed that decision; hence what turns on Mr Doueihi’s acceptance of that matter is by no means axiomatic). In hindsight, having heard the reopened evidence, I consider that the application should probably have been dismissed since it became abundantly clear that it was in essence an exercise in seeking to restore (to the extent that it was thought to have been undermined) Mr Brown’s credibility. Mr Brown’s evidence during cross-examination made that very clear. As to costs, I ordered that Mr Rayman’s costs of the reopening application should be borne by Ms Brown (subject to any application that might be made by Ms Brown, after the reopened hearing, that those costs be borne by another party – Scopeview or, as Ms Brown suggested she might seek, Mr Doueihi himself). That was because the reopening application was in no way attributable to any conduct on the part of Ms Rayman and it had been accepted in submissions for Ms Brown that an award of costs (and the opportunity to cross-examine Mr Doueihi) would ameliorate any prejudice occasioned by the reopening. That order for costs should extend to the hearing on 17 April 2026 itself. I hasten to add that I do not accept that Counsel

for Ms Rayman bore any responsibility for the reopening (the suggestion that he opened Pandora’s Box in the metaphorical sense) nor do I accept that there was any impropriety in the questioning of Mr Brown’s truthfulness in the course of cross-examination. In that regard, it is important to focus on the aspect of Mr Brown’s evidence that was being impugned – it was Mr Brown’s evidence (given for the first time in cross-examination) that Mr Doueihi told him not to send or that he must not send notification to the Raymans. That was not the evidence he had given in his affidavit nor was there any suggestion of this in any contemporaneous objective documents and, to my observation when it was given, had all the hallmarks of embellishment. As to the costs of Scopeview of the reopening application, I ordered that those should be reserved until after the reopened hearing since I accepted that the outcome of the evidence to be given at that hearing might have a bearing on who should pay the costs of the reopening. (I indicated that if there were then to be any application that Mr Doueihi personally pay those costs, he would need to be notified.) I deal with those costs in due course as part of these final reasons. Cross-examination on reopened hearing Turning then to the evidence that was given orally in cross-examination of the deponents on their affidavit evidence at the hearing on

17 April 2026, I note the following. Mr Rod In cross-examination, Mr Rod confirmed that he was the solicitor on the record for Ms Brown from approximately December 2022 until sometime in April 2026, and that he was aware throughout that time that Mr Doueihi was the director of Scopeview, that Scopeview was represented by an insurer and that Wotton Kearney were on the record as solicitors for Scopeview (17/04/26; T 2). Mr Rod said that he first became aware of a suggestion that Mr Doueihi wished to change his evidence a few days after the hearing (17/04/26; T 3). He said that Mr Brown telephoned him to advise him that Mr Doueihi had contacted him on a number of occasions to say that he was extremely upset about the outcome and the evidence that he had given (17/04/26; T 3). Mr Rod said that he was not aware on or about 5 November 2025 that Mr Brown was proposing to send transcripts of Mr Doueihi’s evidence to Mr Doueihi and that he became aware on or about 18 November 2025 when he spoke to Mr Brown that Mr Brown had sent the transcripts to Mr Doueihi (17/04/26; T 3). Mr Rod said that he was not aware that Mr Brown was proposing to send the email dated 5 November 2025 (Annexure A to Mr Doueihi’s affidavit; Ex 11) to Mr Doueihi and that he was not aware that Mr Brown was proposing to send the email dated 11 November 2025 (Annexure B to Mr Doueihi’s affidavit; Ex 12) to Mr Doueihi

(17/04/26; T 4). Mr Rod said that he had discussions with Mr Brown where he said that if Mr Doueihi was unhappy he should consult an independent lawyer. In his second affidavit (at [5.1]), Mr Rod deposed that Mr Brown had asked him for the names of three independent lawyers and that he (Mr Rod) had given Mr Brown the name of Ms Jodie Gwynn-Jones of Harper Jones Lawyers. Mr Rod obtained that name from Ms Button (at [5.1]), who commenced acting for Ms Brown when Mr Rod ceased to act. Mr Rod said he provided the name to Mr Brown some time before 18 November 2025; possibly before 14 November 2025 (17/04/26; T 5). He said that Mr Brown arranged for payment of Ms Gwynn-Jones’ fees (17/04/26; T 5); that Mr Brown just instructed him to ensure her fees were paid and that it was Mr Brown’s idea to pay those fees (17/04/26; T 6). As to the conversation with Mr Doueihi and Mr Brown on 18 November 2025, Mr Rod said it was over the speakerphone. He was in his office at his desk. He thought it was in the morning but did not recall (17/04/26; T 6). Mr Rod confirmed that he said “I cannot talk to you” and “I cannot give you advice” (17/04/26; T 6). Mr Rod’s typed notes of the conversation were exhibited to his affidavit (Ex DR-3) (see [14] of his affidavit). His handwritten notes were in due course provided to the court (in the cross-examination bundle handed up by Mr Luitingh). Mr Rod said he

prepared his typed notes some time after the conversation, at the time he prepared his affidavit, based on some of his handwritten notes (17/04/26; T 6-7). Mr Rod confirmed that words in quotation marks in his first affidavit at [17] recorded the actual words he recalled Mr Doueihi using (including “adjoining owners” and “proposed excavation works”) (17/04/26; T 7). (Mr Doueihi in his affidavit denied using those words.) Mr Rod accepted that there was a distinction between giving notice about the proposed works about to be undertaken and the conditions of the Development Consent and, in particular, Conditions 13 and 14 (17/04/26; T 8). In particular, he said that excavation and demolition were two different things and he accepted that one could interpret this as being different to complying with Conditions 13 and 14. He made a reasonable concession in this regard (17/04/26; T 8.26-34). Mr Rod conceded that what was recorded in his file note (where he attributes to Mr Doueihi a statement referring to Conditions 13 and 14) was not consistent with what he had set out in his affidavit (where he refers to “excavation”) (17/04/26; T 8-9). In the witness box, Mr Rod said he thought he used the word “excavations” in his affidavit incorrectly but that Mr Doueihi did refer to Conditions 13 and 14 and notification (17/04/26; T 9). Mr Rod said that when he looked at the file note the

affidavit was probably incorrect (cf his evidence at T 8.3 that he believed that his affidavit set out the words actually used) (17/04/26; T 9). Mr Rod accepted that when he told Mr Doueihi that it was not appropriate for him (Mr Rod) to talk to him he was there referring to the solicitor’s conduct rule that forbids communicating with another practitioner’s client unless the practitioner has consented and he accepted that he was aware that it is not appropriate to confer or deal with a party that is represented by an insurer unless both the party and the insurer have indicated their willingness to that course (17/04/26; T 9). However, Mr Rod resisted the proposition that it was improper for him to proceed to confer with Mr Doueihi on 18 November 2025, saying “I do not agree with that entirely, no” (17/04/26; T 9). Asked the reason for that response, Mr Rod said (17/04/26; T 9): When - I received, your Honour, a telephone call from Mr Brown who advised me that Mr Doueihi was with him and he was extremely upset that he had discovered certain issues about the case including the fact that he did not know the full extent of the terms of the deed of settlement and he said Mr Doueihi wanted to talk to me and he immediately put Mr Doueihi on to speakerphone with him and I said to Mr Doueihi there and then, “I cannot advise you or talk to you. You need to talk to your solicitors” and he

said to me, “I do not trust my solicitors. They’ve pulled the wool over my eyes. They did not tell me about the deed of settlement. They act for the insurer and if I go back to them I believe the insurer will attack me” and I said to him, “Then you need to get independent legal advice” and he replied to me, “I have already had independent legal advice” and he said, “Please, just listen to me and let me tell you” and he made a few statements and I again said to him, “You need to go back to Wotton & Kearney or an independent solicitor”. Mr Rod’s evidence was that he still did not believe that it was improper for him to confer with Mr Doueihi on 18 November 2025 (which is somewhat inconsistent with him believing at the time, or saying at the time, that he could not advise or talk to Mr Doueihi) (17/04/26; T 10). Mr Rod said (17/04/26; T 10): I - I still don’t believe it was improper. I believe that the proceedings had ended and I - he was talking to me about the substance of his evidence. He wasn’t talking about the case and the litigation had ended as far as I was concerned when Mr Brown called me. Questioned as to this, there was the following evidence (17/04/26; T 10): Q. When you say you were aware the litigation had ended as far as you were concerned you accept, though, you have given evidence this morning that you were aware that Mr Brown had indicated to you that there was

a suggestion that Mr Doueihi was going to change his evidence. You’re aware of that? A. There was - there was a suggestion that Mr Doueihi was unhappy with his evidence. Q. Can I ask you this question. You knew, didn’t you, that any - you knew, didn’t you, that the indication from Mr Brown that Mr Doueihi may wish to change his evidence might involve an application by your client to reopen her case. A. Not at that stage. No, I didn’t. Q. When do you say you first became aware that there might be an application by your client to reopen her case? A. After the telephone conversation in which Mr Doueihi was present I formed the view that there may be grounds to reopen the case after Mr Doueihi told me the things that he did. Asked what the purpose of taking notes of the conversation was, Mr Rod responded that he takes notes of every conversation (17/04/26; T 10). Asked what he thought was the purpose of Mr Brown asking him to speak to Mr Doueihi, Mr Rod said (17/04/26; T 10): To explain the terms of the deed of settlement and why he did not receive proper advice as to what the actual terms were. Mr Doueihi advised Mr Brown he was extremely upset that he did not know the terms of settlement and Mr Brown phoned me for that specific purpose. Asked what was the purpose of him enquiring from Mr Doueihi about the terms of his settlement, Mr Rod said (17/04/26; T 10): I did not inquire. I

did not inquire. Mr Brown’s words to me were, “Cameron is extremely upset about the terms of settlement. That he did not know about them” and Mr Doueihi went ahead and started telling me all the facts. I - I didn’t question him not once. Counsel for Scopeview pointed out that in Mr Rod’s own file note he had recorded that he asked Mr Doueihi what the inaccuracies in the evidence were (17/04/26; T 11). Mr Rod’s response was “[h]e was - he was rattling them off to me” (17/04/26; T 11). Mr Rod said that he was listening and that he understood the purpose of him speaking to Mr Doueihi was “to be explaining the terms of the deed of settlement” (17/04/26; T 11). There was then the following exchange (17/04/26; T 11): Q. And if it’s the case that you had no idea of the purpose for which you were talking to Mr Doueihi and you knew that it was contrary to the solicitor’s conduct rules to speak to Mr Doueihi whilst he was represented on what basis do you say it was proper for you to speak to Mr Doueihi? A. I - I felt the proceedings had ended - the litigation had ended. He was talking about the substance of his evidence. I did not believe it was going any further. I believed the case had finished. Mr Rod did not accept that it was in his mind as at 18 November 2025 that a possible purpose of Mr Brown asking him to confer with Mr Doueihi about the terms of the settlement and other matters

was that Mr Brown wished to reagitate matters that were disposed of by the settlement between Scopeview and Ms Brown (17/04/26; T 11). He said (17/04/26; T 11): That - that’s not true. Mr Brown phoned me, your Honour, and he said to me, “Mr Doueihi or Cameron is with me and he’s very upset about the terms of settlement” and he put him on speakerphone and I listened. I didn’t - Mr Brown didn’t tell me he had any purpose, intention, desire to agitate, desire to open the case - I just listened. Mr Rod said that it was not apparent to him as he was speaking with Mr Doueihi that this matter might go further and result in some sort of application and that each of Mr Brown and Mr Doueihi might become witnesses in any future application (17/04/26; T 11). Mr Rod was adamant that he did not believe the matter would go further at that stage and that he did not anticipate during this conversation that there was going to be an application to reopen or some similar application in the proceedings (17/04/26; T 11). Mr Rod was then questioned about the circumstances in which he came to draft a letter to come from Mr Doueihi. Mr Rod denied that he had asked Mr Doueihi to write a letter about changing his evidence (cf the evidence of Mr Doueihi and Mr Sara). In his second affidavit at [5.7], Mr Rod had deposed that he said to Mr Doueihi “Cameron, if you want to correct the record you either need

to talk to Wotton + Kearney or address a letter to me outlining the issues as you described them to me”. Asked whether he accepted that, at least to that extent, he had proceeded to give Mr Doueihi some advice, Mr Rod said that his advice was to go to Wotton Kearney or to write a letter to him (17/04/26; T 12). Mr Rod accepted that in his file note prepared at the time of his first affidavit there was no mention of any conversation, discussion or suggestion that a letter or a draft letter be written; nor did he refer in his first affidavit to any such letter or that he had, in fact, prepared a draft letter but he accepted that he did, in fact, draft a letter, which he sent to Mr Brown, the same day as the 18 November 2025 conversation (17/04/26; T 12-13). In his second affidavit at [5.11], Mr Rod had deposed that he agreed, at the request of Mr Brown, to draft a letter, which Mr Brown would then discuss with Mr Doueihi. In cross-examination, Mr Rod said that Mr Brown requested during the conversation that he draft this letter, and said that Mr Brown said words to the effect “[w]ould you help us prepare a letter, setting out the issues as [Mr Doueihi] has them?” (17/04/26; T 13). Asked whether he accepted that, if he were giving a full and frank account in his affidavit of the conversation, he ought to have mentioned the fact that he was asked to draft a letter setting out the

evidence that Mr Doueihi conveyed to him on 18 November, Mr Rod said, “I probably - I probably should have put it in my affidavit. Yes, I do accept that, your Honour” (17/04/26; T 13). Mr Rod seemed to accept the proposition that not only did he confer with another solicitor’s client, but he proceeded to draft a letter setting out the content of that evidence with the expectation that Mr Brown would then further discuss that evidence with Mr Doueihi, saying, “I agree that I prepared a letter at the request of Mr Brown, which he wanted to discuss with Mr Doueihi. Yes” (17/04/26; T 13). However, Mr Rod resisted the proposition that, at the point of time when he was being asked to draft a letter setting out the account of a witness in an existing proceeding, it was apparent to him that the purpose of doing so was, at least, to take the matter further in some way (17/04/26; T 13). In answer to that proposition, Mr Rod said (17/04/26; T 13): It was for Mr Doueihi and Mr Brown to make a decision as to how he was going to approach it. I, at that point in time, had no intention of opening an application. Similarly, Mr Rod resisted the proposition that he was aware that the context of the letter being drafted was an apparent request by Mr Doueihi to rectify his evidence, saying that his understanding was that Mr Doueihi “wanted to put it in writing, what he felt, and to discuss it with

a solicitor” and that “he wanted to put in writing what his concerns were” (17/04/26; T 14). Mr Rod said that during the conversation Mr Doueihi did say words to the effect “I want to put in writing a rectification of my evidence” (17/04/26; T 14). Asked whether he was aware that the purpose of the letter was (on Mr Rod’s account) in order for Mr Doueihi to rectify his evidence, Mr Rod said, “He wanted to put it in writing. He wanted to rectify his evidence, yes” (17/04/26; T 14). Mr Rod accepted that he was aware that the only way in which to rectify evidence that had been given in open court was for the case to be reopened (either by his client or by Scopeview) (17/04/26; T 14). As to the proposition that he knew, as at 18 November 2025, that the purpose of the letter was to support a reopening of either his client’s or Scopeview’s case, Mr Rod said (17/04/26; T 14): My client, at that stage, had no intention to re-open the case, and I had no intention to re-open the case. This was the first time I’d heard Mr Doueihi. … At that moment, I did not believe that there was going to be an application to re-open the case. Asked whether he was aware of the possibility that there would be an application to reopen, Mr Rod said “That minute, I did not believe so” (17/04/26; T 14). Mr Rod accepted that if there were to be an application to reopen a case, then it was always on the cards

that each of Mr Brown and Mr Doueihi was likely to be witnesses at any such reopened case, saying, “It stands to reason, yes. If you do reopen a case, there would be witnesses” (17/04/26; T 14). Asked whether, if as a solicitor he was preparing evidence which may be used to rectify evidence that has already been given in the case, there was a likelihood that the person giving that evidence would be a witness in any such reopened case, Mr Rod said (17/04/26; T 15): When I received the phone call, and I wrote down the file notes, at that point in time, your Honour, I had no idea where it was going. I had not formed a view whether there were even grounds to re-open a case. I was merely listening to Mr Doueihi’s version of events. There was no intention to take the matter further at that stage. Mr Rod agreed that he was familiar with the solicitor’s conduct rule that prohibits or forbids solicitors conferring with two prospective witnesses simultaneously but added that during that phone call he did not consider them (i.e., Mr Doueihi and Mr Brown) to be witnesses (17/04/26; T 15). Mr Rod did not remember at what time his telephone discussion with Mr Doueihi ended (17/04/26; T 15). He did not recall but accepted that he might have had a number of telephone calls with Mr Brown that afternoon after he had spoken to Mr Doueihi (17/04/26; T 15). Mr Rod was shown some telephone records

that Mr Brown had produced, on which Mr Rod identified his mobile phone number ending 075. Those records disclosed that there were a number of telephone calls on 18 November 2025. Relevantly, at 11:34am, there was a telephone phone call by Mr Brown to Mr Rod’s mobile number lasting 14 seconds (which Mr Rod accepted was likely to indicate a message left on his phone “or he might have let it ring”) and, at 1:12pm, a 28 second call to Mr Rod’s number (which he believed would be another message being left on his mobile) (17/04/26; T 15-16). Mr Rod did not recall but accepted that it was possible that his conversation with Mr Doueihi occurred sometime between those two times (17/04/26; T 16). He agreed that generally if Mr Brown phoned him he would then phone him back at the first available opportunity (17/04/26; T 16). The next entry after 1.12pm was at 1.51pm, a call lasting two minutes and one second to Mr Rod’s mobile number, which Mr Rod said “would have been a conversation of some sorts”; then a four second phone call at 2.18pm and another four second phone call at 2:23pm (likely messages) (17/04/26; T 16). Mr Rod did not recall speaking with Mr Doueihi after those two phone calls on that afternoon (17/04/26; T 16). Mr Rod accepted that he prepared a draft letter that afternoon based on what he said Mr Doueihi told him during the telephone conversation and that he emailed that

to Mr Brown at 6:32pm that evening (17/04/26; T 16-17). Mr Rod believed that the words in this letter were a combination of his own words and Mr Doueihi’s words (17/04/26; T 17). Mr Rod did not accept that he wrote parts of the draft letter to protect his position (the statements “you have advised me to speak to my solicitors or get the advice of an independent solicitor” and “I confirm I do not wish to do that. I also confirm that you advise me your barrister informed the insurance company’s solicitor that I’m not to speak to Mr Brown”) (17/04/26; T 16). Mr Rod said that he wrote the first because “I said it to Mr Doueihi when I spoke to him in the telephone call of 18 November. It was the first thing I said to him, and it was just a confirmation” and disagreed with the proposition that the second was written to have Mr Doueihi make concessions that he considered would assist Ms Brown’s case (17/04/26; T 17). As to the statement in the draft letter that “Mr Brown advised me that he did not wish to speak to me, but he would send me the transcript, which he did”, Mr Rod was asked what his knowledge or understanding was, as at the time he drafted this letter, of when was the first time that Mr Doueihi spoke to Mr Brown about changing his evidence (17/04/26; T 18). Mr Rod said (17/04/26; T 18): As I said earlier, it was a few days after the hearing that I became aware, but it - I

became aware that he was unhappy with his evidence, not that he wished to change his evidence. As to the statement in the letter “I should approach the Court to rectify the errors”, Mr Rod accepted that he used the word “rectify” in the draft letter but insisted that Mr Doueihi used the word “rectify” as well and that Mr Doueihi used the word “rectify” on numerous occasions in the call (17/04/26; T 18). Importantly, in my opinion, Mr Rod said that (17/04/26; T 18): When this letter was done in the afternoon, it was done on the basis, after consultation with Mr Luitingh, that there was a possibility, after the phone call, that there may be grounds to reopen the case. Mr Rod did not recall the time of his telephone call with Mr Luitingh but said that it was probably before 6:32pm (which logically must have been the case if the letter was drafted after consultation with Mr Luitingh, since it was sent at 6:32pm to Mr Brown) (17/04/26; T 18). Mr Rod said that it would have taken him “maybe ten minutes” to draft this letter (17/04/26; T 18). Mr Rod said that the letter “would have been the basis of possibly reopening a case, if - if he wrote this letter and confirmed the correctness of what he had told me” (17/04/26; T 18). Asked whether it was his intention that this letter would be annexed to an affidavit, and it would be submitted to the Court in support of such an application, Mr

Rod said “I guess, ultimately, it would have been. Yes” (17/04/26; T 18). When it was suggested to him that the process in which he was engaging was, in effect, a proof of evidence from Scopeview’s director to support an application by Ms Brown to reopen her case, Mr Rod said (17/04/26; T 18-19): If you put it that way, yes, you’re correct, but Mr Doueihi had advised me that he either wanted an independent solicitor or Wotton Kearney, but he didn’t trust Wotton Kearney. And, would we - Jonathan Brown asked me to create this letter to summarise what Mr Doueihi had said. Asked whether he accepted that it was improper for him to proceed with preparing the letter given his discussions with Mr Luitingh and Mr Brown that afternoon about the possibility of reopening his client’s case, Mr Rod said (17/04/26; T 19): I would say to you in hindsight which, unfortunately, is something we all face in life - at the time I did not anticipate or believe it was improper as Mr Doueihi had told me he did not want to go back to Wotton & Kearney. Possibly, I should have given it some more thought, yes. Mr Rod accepted, in hindsight, that he could have proceeded no further and could have told Mr Brown that if he wished to reopen the case he would have to get this evidence another way but did not accept that the reason he did not take that course was because it was it was unlikely he was going to get

that evidence in any other way (17/04/26; T 19). Asked about the statement in the draft letter that began with the words “the most important issue is that I have consulted my telephone records”, Mr Rod said that these were actually Mr Doueihi’s words and that he was not aware that these were words that Mr Brown had previously used (17/04/26; T 19). Asked about the line in the draft letter that referred to receipt of a “letter dated …”, Mr Rod said that these were probably Mr Brown’s words; and he agreed that Mr Brown often described emails as letters (something that in his evidence Mr Brown did not accept) (17/04/26; T 19-20). Mr Rod rejected the proposition that “adamant” was not a word that Mr Doueihi used in the course of the conversation (in the context that he was adamant that he told Mr Brown not to concern himself with the conditions of consent) (17/04/26; T 20). Counsel for Scopeview then put a series of propositions to Mr Rod as to the version of events given by Mr Doueihi and Mr Sara, which Mr Rod did not accept. In cross-examination by counsel for Ms Rayman, Mr Rod accepted that he did not tell Mr Doueihi that he was keeping a written record of what was being said in the conversation nor did he tell Mr Doueihi that he should do so (17/04/26; T 21). There was the following exchange (17/04/26; T 21): Q. You deny that your participation in the telephone conversation was

entirely improper but would you agree that to the extent that there was any doubt it would have been prudent to terminate the telephone conversation? A. As I said to your Honour, yes, in hindsight when I look at it in the cold light of day I probably should have. Q. And is it the case that whilst you knew that giving advice to Mr Doueihi was improper that listening was not improper. A. Certainly didn’t give advice and, yes, I did - I did listen because Mr Doueihi insisted that I listen but, as you correctly point out, I should have, rather, terminated the call there and then. Mr Rod stood by his evidence of the contents of the 18 November 2025 telephone conversation but said that if anything was improper then it was “unintentional and thoughtless” (17/04/26; T 22). Mr Brown In cross-examination, Mr Brown accepted that he understood when preparing is affidavits that it was important to give and full and frank account to the Court of: the events and contents of the discussions that occurred after the conclusion of the hearing of this matter; all the communications that he says he had with Mr Doueihi after the hearing; and all of the events leading up to each of those conversations (17/04/26; T 23). Mr Brown was taken first to the letter dated 12 December 2025 from Spectrum Legal to the Court, which he accepted was on his instructions (17/04/26; T 23), in particular to [1.1] of

the letter which gave an account of what happened following the conclusion of oral evidence at the hearing, including that he had refused to take calls from Mr Doueihi but had “eventually” spoken to him. In cross-examination, Mr Brown said that there were two calls from Mr Doueihi that he did not take; that he was at a wedding at Fiji; and that he took the third call. Mr Brown was unable to say what the time period was between the calls he did not take and the one he did take but that they were all on the same day (17/04/26; T 24). It was suggested to Mr Brown that the word “eventually” in the 12 December 2025 letter gave a misleading impression that some considerable time passed between him not taking Mr Doueihi’s calls and him taking Mr Doueihi’s call (17/04/26; T 24). Mr Brown accepted that the calls happened within a space of approximately an hour or two (adding that “I guess you’ve got his phone records so you could make that judgment yourself”) (17/04/26; T 24). Mr Brown said that he never looked at the incoming calls on his phone records but only the outgoing calls (17/04/26; T 24). When asked whether his evidence was that, when he did take Mr Doueihi’s call, Mr Doueihi volunteered certain admissions that were inconsistent with the evidence that he gave at the hearing of this matter, Mr Brown confirmed that this was his evidence and went on to say “It’s not - not

necessarily only on that call. There were numerous calls throughout this period” (17/04/26; T 24-25). Taken to his first reopening affidavit, it was pointed out that at [4] Mr Brown said that “[o]n 5 November, while I was overseas, I received two missed calls from [Mr Doueihi]” but there is no reference in that affidavit to having taken a third call made by Mr Doueihi that day. Instead, at [5], Mr Brown deposed that they exchanged several calls on 11 November 2025 in which they discussed their impressions of the trial and then, at [6], Mr Brown deposed that “[o]n 13 November 2025, [Mr Doueihi] said to [Mr Brown] “I want to correct matters which I believe have been inaccurately presented”” and Mr Brown went on to add further paragraphs about the things that he said Mr Doueihi said to him on 13 November 2025. When it was put to Mr Brown that the account he was giving in those paragraphs of his affidavit was that the first occasion on which Mr Doueihi suggested to him that he wished to correct his evidence was on 13 November 2025, Mr Brown said that “[f]urther on in my affidavit is the third call of 5 November” (17/04/26; T 25). However, Mr Brown then accepted that it was not until the second affidavit (filed in response to Mr Doueihi’s affidavit) that he gave an account of the 5 November 2025 telephone conversation with Mr Doueihi (17/04/26; T 25-26). Mr Brown accepted that, to

that extent, his affidavit of 9 February 2026 did not give a full and frank account of his communications with Mr Doueihi about the matters about which he was now giving evidence (17/04/26; T 26). At [6] of his first affidavit, Mr Brown deposed that the first occasion on which Mr Doueihi said anything to him about correcting matters which had been inaccurately presented was on 13 November 2025. Mr Brown accepted that he had said that in his first affidavit and that he stood by that evidence (17/04/26; T 26). Mr Brown was then taken to his second affidavit, where he referred to the conversation of 5 November 2025 at [37], there referring to Mr Doueihi’s affidavit at [55]. Mr Brown there deposed that “[t]here was more to this conversation, and it took place at the beginning of our call” and set out various matters in the following subparagraphs. At subparagraph (a), Mr Brown deposed that the reason that he got Mr Rod on the call (referring to the speakerphone call that took place around the kitchen table in his house on 18 November 2025) was because Mr Doueihi “had had a long conversation before this one on 5 November 2024 which I recount below”. There was then the first reference to a third call on 5 November 2025, which Mr Brown had taken. Mr Brown set out that conversation, including that he had said to Mr Doueihi that “I was rather disgruntled with the way you had replied to

your questioning in the witness box regarding the conditions that were set out by council (clause No13 [sic]), notifying Errol and Avron”. Mr Brown then deposed at subparagraph (c) that “[w]e briefly discussed the telephone call we had on 2 March 2020”. At subparagraph (e), Mr Brown refers to “[i]n this conversation on 18 November 2025”. It was put to Mr Brown that it was not entirely clear from the way in which this paragraph had been set out, which parts were referring to the conversation with Mr Doueihi on 5 November 2025 and which parts were referring to the conversation on 18 November 2024 (17/04/26; T 28). There was then no little confusion in Mr Brown’s attempt to identify those parts of the conversation which he said had taken place with Mr Doueihi on 5 November 2025. Mr Brown started by saying (17/04/26; T 28): So, definitely, when I say, “Me, I was rather disgruntled with the way you replied,” that is on 5 November. I couldn’t be exactly sure, but I - I - I would think that this [referring to subparagraph (c)] is the conversation that had - that we had on 5 November. However, Mr Brown immediately then said that he could not be certain (17/04/26; T 28.21). Reminded that he had been taken to his first affidavit (in which he gave the impression that the first time he spoke to Mr Doueihi about the possibility he might change his evidence was on 13 November 2025), Mr Brown

said that “[t]hat’s why I’m doubting this” (17/04/26; T 28). Asked whether it was his evidence that he could not now say whether what appears in subparagraph (c) of his second affidavit occurred on 5 November or 13 November 2025, Mr Brown said (17/04/26; T 28): I - I would think this information is from the latter. If I recall the conversation on 5 November, it was a little bit more - it was intense, but it was more about our feelings to what transpired at the - on the day of the trial. Noting that subparagraph (c) included verbatim words in quotes, Mr Brown was asked as to his last answer (above) about his recollection of the conversation on 5 November 2025 being more about feelings and recollections and whether he did not actually have a recollection of the actual words that were used in the conversation referred to in subparagraph (c) (17/04/26; T 28). Mr Brown said “It is my recollections. I did scribble some notes, in fact, on the hotel’s envelope that I was sitting at the desk while I was taking this call” (17/04/26; T 28). He said that he used those notes to remember “little points” (17/04/26; T 28). He said that he wrote the notes all onto email and sent them to his solicitor when preparing the affidavit (17/04/26; T 28). He accepted that he could have annexed those notes and emails to his affidavit and said that he “most probably still could” (17/04/26; T 29). Mr Brown

accepted that when he prepared the second affidavit he had had available to him the notes he had taken on 5 November 2025 (on the back of an envelope) and said that he had glanced at them when he prepared the affidavit (though adding “All my notes are very similar, I guess”) (17/04/26; T 29). Questioned as to whether the position was that he could not remember if the words appearing in subparagraph (c) were said on 5 or 13 November 2025, Mr Brown said (contradicting his earlier evidence that they were definitely said on 5 November 2025) (17/04/26; T 29.10): I would - I would think these are - the words that I said in this paragraph (c) do not refer to 5 November. Not long after that evidence, he said “I - I think it transpired on 13 November” (17/04/26; T 29.23). However, lest it be thought that Mr Brown had confirmed a recollection that the conversation recorded at subparagraph (c) had taken place on 13 November 2025, he then went on to say, in response to the suggestion that this was a guess (17/04/26; T 29.27): That is a guess. I just can’t work it out exactly, but I’m just looking at the information and wondering if I did, at the time, have the copies of the transcripts at - at that moment in time. Mr Brown agreed that he actually spoke to Mr Doueihi for about two and a half hours on 5 November 2025 (17/04/26; T 29.36). He said that it was “an intense, long conversation

about our feelings of what transpired in the case” and he seemed to accept that it was not something he was likely to have forgotten by 12 December 2025, when his lawyers sent the letter to the Court (17/04/26; T 29.48). What was then suggested to Mr Doueihi was that the 12 December letter that was sent to the Court gave the somewhat inaccurate impression that he was reluctant to take Mr Doueihi’s calls and that he eventually took Mr Doueihi’s call sometime after 5 November 2025 (17/04/26; T 30). Mr Brown said “[i]f that’s what it implied, that’s not true. I did speak to Mr Doueihi on 5 November. I said I took the third call that he called, your Honour” (17/04/26; T 30). Mr Brown was then taken to a Vodafone tax invoice for the period 23 October to 22 November 2025 and shown a series of entries. First, an incoming call on 5 November 2025 at 11:27:10am which Mr Brown presumed was Mr Doueihi telephoning him (17/04/26; T 32). (There was another incoming call at 11:31am presumably also from Mr Doueihi.) At 12:00pm there was a call recorded to Mr Rod’s number. Mr Brown did recall trying to call Mr Rod on 5 November 2025 (17/04/26; T 31). He said that he did speak to him and that he said, “Cameron’s trying to get hold of me. Must I take the call?” (17/04/26; T 31). Then at 12:01pm and 12:02pm, there are calls to Mr Doueihi’s number. Mr Brown said that was an indication of him calling

Mr Doueihi (17/04/26; T 32). At 12:43:59pm the invoice records an incoming call with a duration of two hours 31 minutes and 51 seconds. Mr Brown said that this was the call with Mr Doueihi (17/04/26; T 33). Then at 4:21:02pm, there was a call from Mr Brown’s mobile number to Mr Rod’s number lasting 23 minutes 45 seconds. Mr Brown said he thought there was a discussion with Mr Doueihi on 5 November 2025 about him changing his evidence and he said that he definitely had a discussion with Mr Rod about that topic on 5 November 2025 (17/04/26; T 34). Mr Brown said that he asked Ms Button to send him the transcript of evidence on the last day of the trial (31 October 2025). He did not recall being in Fiji and sending an email attaching the transcript (17/04/26; T 34). At 5:02pm on 5 November 2025 Mr Brown sent an email to Mr Doueihi that said “[p]lease read through transcript in your section” (giving him some page numbers) and Mr Brown asked Mr Doueihi to “see if there are any answers you might want to change or amend” (17/04/26; T 34). Questioned as to this email, there was the following evidence (17/04/26; T 35): Q. Your intention in sending this email was to have Mr Doueihi change the evidence that he gave at the hearing in October, wasn’t it? A. That wasn’t my intention. Mr Doueihi and I had a lengthy conversation, as you can see by the time of the call, in Fiji on 5 November. We

both discussed our feelings and our views on the - on the case where he - where I said that - where I said I felt that things didn’t go as well as expected and he agreed with me on certain points and thus the lengthy conversation and I did mention that the recollection of the conversation that we had on 2 March did not come across as clear as it should and we then discussed that - he said he’ll do - he’ll do anything to help me clarify those points and we got talking - obviously, two hours worth of talking and he mentioned to me that there were things that he was asked and answers that he gave that he wasn’t 100% happy with the way Mr Klooster allowed him to answer those questions. So I’m guessing on his side of things were his pride and on my side of the coin was that I wanted to clarify this particular point re the conversation on 2 March, your Honour. Q. What was the point in clarifying if the trial was over, Mr Brown? A. Mr Klooster made me - or told me in front of all these people that I’m a liar and I have a lot of pride in myself and I was very upset by that and I don’t like to be called a liar or, in fact, that conversation did take place and those are the things that Cameron told me and I was very upset with the result. Q. In fact, you opened your conversation with Mr Doueihi by saying that you were rather disgruntled by the way he had replied to his questioning at the

hearing. A. That’s correct. As to the email of 5 November 2025, Mr Brown’s attention was directed to the statement “[p]lease get back to me soon as I need to respond by Friday” (17/04/26; T 35). Asked to whom he needed to respond, Mr Brown said “I guess, my legal team” (17/04/26; T 35). He could not recall if they had asked him to respond to them nor what he needed to respond to them about (17/04/26; T 35-36). When he was asked if he needed to respond to them about Mr Doueihi’s answers that he might want to change or amend, Mr Brown said (17/04/26; T 36): You’re right, sir. So, obviously, I had the call with Cameron twice, sorry, your Honour. I had the call with Cameron for quite a long time. Spoke to David Rod in the interim. We discussed certain issues and - and I needed to get back to David. I don’t know why, by Friday. I don’t know what the urgency was but, yes. Mr Brown was asked (17/04/26; T 36): Q. Just so that I understand your answer are you saying that it was your intention that you were going to respond to your legal team by Friday - that’s Friday, 7 November 2025 - about answers Mr Doueihi might want to change or amend? A. I guess so, yes. Bear - yes. Q. And was the purpose of you responding to them about answers Mr Doueihi might want to change amend to reopen your case so that further evidence could be given to rectify the position as you saw it? A. I would think

part of my upsetness [sic] over - at the end of the case, your Honour, was the fact that I was led to believe that the deed that we had signed had a covering letter that I was shown with it at the eleventh hour that, basically, said that Mr Doueihi would take responsibility on the two accounts, (a), the sheet piling and, (b), the notification of the neighbours. We discussed that for quite a long period in this two hour call on 5 November. Mr Brown accepted that he did not suggest anywhere in this email that Mr Doueihi had approached him wanting to change his evidence but insisted that Mr Doueihi had called him (17/04/26; T 36). Mr Brown did not recall if he had provided a copy of this email to Mr Rod, pointing out that he was not “cc’d on it” (17/04/26; T 36). Asked whether he told Mr Rod on 5 November 2025 that he was going to send Mr Doueihi the transcripts of his evidence and ask him whether he wished to change them, Mr Rod said “[n]o. No, I can’t - I don’t think so. Highly unlikely” (17/04/26; T 37). Mr Brown readily accepted that his intention in sending this email to Mr Doueihi was to obtain evidence so that he could reopen the case (17/04/26; T 37). Asked whether he discussed that intention with Mr Rod on 5 November 2025, Mr Brown said “I did discuss the fact that I was upset and I wanted to know how I could rectify the situation” (17/04/26; T 37). He could not be

certain whether he had a discussion with Mr Rod on 5 November 2025 about the possibility of reopening the case. Asked if it was his intention from 5 November onwards to gather evidence from Mr Doueihi that would assist him in reopening the case, Mr Brown said (17/04/26; T 37): Mr Doueihi and I were pretty good friends and we spoke about this thing, as you can see, for many, many hours after the case. I wasn’t looking to gain information. I was, rather, looking to set the facts straight, your Honour. At [9] of his first affidavit on the reopening application, Mr Brown deposed that in the 13 November 2025 conversation Mr Doueihi asked whether he (Mr Brown) could put him in contact with a lawyer, who could provide him with advice about changing his evidence. Mr Brown said that eventually he (not personally) provided Mr Doueihi with the name of a lawyer (17/04/26; T 37). Mr Brown said that he thought the name was provided through Ms Button’s contact (17/04/26; T 37). Mr Brown said that he had no involvement in that process (17/04/26; T 37). Mr Brown said that he did not give Ms Gwynn-Jones’ name to Mr Doueihi and he did not ask Ms Gwynn-Jones to contact Mr Doueihi (17/04/26; T 37-38). Mr Brown said that he was not aware of the name, Ms Jodi Gwynn-Jones “prior to Cameron’s meeting” (17/04/26; T 38). Mr Brown also disagreed with the proposition that he paid Ms Gwynn-Jones’ fees for

providing Mr Doueihi with advice but immediately added that “I offered to pay her” (17/04/26; T 38). Mr Brown said (17/04/26; T 38): I - I - I said she - Cameron sent me a whole lot of invoices, or an invoice, and said, “Who’s going to pay this?” And, I - he didn’t send it to me. He said, “She charged me $1,000.” And, I said, “Okay. I’ll take care of it.” Inconsistently with that assurance, Mr Brown said that he did not take care of it (17/04/26; T 38). Pressed as to the timeline of events, there was the following evidence (17/04/26; T 38-41): Q. Mr Brown, firstly, this is an email that you sent to Mr Doueihi on 11 November 2025 at 4.14pm. Is that right? A. That’s correct. Q. Here, you set out a number of things that you wished Mr Doueihi to confirm to make sure you and he were, as you say, on the same page. Do you see that in paragraph 1? A. That’s correct. Q. Your purpose of sending this email to Mr Doueihi was to make sure he gave further evidence to assist you in re-opening your case that was consistent with the evidence that you wanted him to give, was it not? A. It was just to, yeah, keep him on the same page. Q. By keeping him on the same page, what you’re doing in this email is telling him what you want him to say. That’s the position, isn’t it? A. These were points that Cameron and myself discussed that I just put into context and wording. Q. The process was this, was

it? You had a two-and-a-half-hour discussion with Mr Doueihi on 5 November. You’ve agreed that took place. Yes? A. Yes. Q. Later that evening, you sent him the transcript and asked him what answers he might want to change or amend. That was the next step. Correct? A. That’s correct. Q. There was then a discussion, was there, on 11 November? Do we take that from the words, “Thank you for your call,” in the first line of this email? A. Yes. Q. You then drafted this email as a summary of the evidence you wished Cameron to give in support of your application to re-open the case. Is that correct? A. That’s correct. Q. If you go down to the paragraph starting, “After the case was finished, I went to Fiji for a few days.” Do you see that? A. I do. Q. You say, “I received several calls from you, which I did not answer. Eventually, I received a call from you, and we had a discussion.” Do you see those words? A. I do. Q. We touched on this earlier, but you would agree, wouldn’t you, that the word “eventually” gives a somewhat misleading impression about the time that elapsed between the missed calls which you did not take and the call from Mr Doueihi that you did answer. A. Yeah. If you-- Q. Your purpose in putting the word “eventually” in-- A. Don’t think - I don’t think the word “eventually” is relevant, in my opinion. Q. The purpose in putting the word “eventually” in there was so

that you could convey an impression subsequently to the Court that you were reluctant to speak to Mr Doueihi. A. Initially, I was, sir. Q. It’s misleading because, in fact, you did speak to him the very same day that he attempted to call you in Fiji. A. After consulting with David. Q. The reason you wished to give the impression that you were reluctant to speak to Mr Doueihi was to give the impression that the initial approach was from Mr Doueihi about changing his evidence to you and not vice versa. Was that not the case? A. It is the case. Q. You then set out, after the third paragraph, you’ll see the third paragraph ends with, “We had a discussion, and you said the following to me, a number of propositions. First, being the transcript did not reflect what happened in the true events. You would like to rectify that,” et cetera. Do you see what you set out there? A. I do. Q. You are telling Mr Doueihi there what you want him to say for the purposes of your application to re-open your case, aren’t you? A. I’m telling him what we discussed. I’m putting in writing what we discussed. Q. You then say, the next paragraph, “You informed me what to say to the architect and talked to Zimmerman that you were aware that I had no idea what the shoring system was about, et cetera.” Do you see that in that paragraph? A. I do. Q. Here, you are again telling Mr Doueihi what to say so that you

can have his evidence changed on the application to re-open your case, aren’t you? A. I’m - I’m just putting in writing what we discussed. Q. Then the paragraph in the bottom third of the page, starting: “The most important is that, in Court, you did not recall me having a conversation with you about sending document number 60, but have subsequently remembered I sent an email to you, and you did not reply. But, you called me and said I should send the document number 60, but to not worry about number 64 because you would take care of it, and asked the PCA to do the same.” … Q. The words, “The most important”, there, you are referring to what is most important to you, aren’t you? A. I am. Q. You were of the view that it was very important that Mr Doueihi change his evidence about the conversation because you thought that you may be found liable to the Raymans for not sending the reports to them prior to the construction certificate being granted. That’s the case, isn’t it? A. To me, it is the most important because Mr Klooster called me a liar. Q. Here, you are asking Mr Doueihi to give new evidence with which to re-open your case on an issue wish you consider to be most important to your possible liability in the case. That’s what you were doing here, isn’t it? A. To my - and to my personal pride. Q. Then, in the next paragraph, you address the settlement deed. You’re asking Mr

Doueihi to say that you were not informed about the condition of the settlement deed. Do you see those words? A. I do. Q. Again, that is something that you are asking Mr Doueihi to say in order to assist you in taking some further legal action about this case, aren’t you? A. I’m telling him now as it is. Q. In the paragraph at the bottom of the page, you then asked Mr Doueihi to say that he had said he wants to tell the judge that, on reflection, his evidence is inaccurate and he wants to rectify it. That’s what you’re asking him to do in that paragraph, aren’t you? A. These were all things that Mr Doueihi and I discussed that he agreed upon and that I was clarifying. The cross-examination then continued to the conversation on 17 November 2025. In Mr Brown’s first affidavit on the reopening application at [17], he deposed that on 17 November 2025 he had a conversation with Mr Doueihi in which he (Mr Doueihi) said he did recall the conversation with Mr Brown on 2 March 2020 and that he said “[d]on’t worry leave it with me”. Mr Brown deposed at [23] that on 18 November 2025 Mr Doueihi said to Mr Rod that during a call on 2 March 2020 “when Jonathan asked about notifying the neighbours, I said to Jonathan: leave it with me”. Mr Brown agreed that it was his evidence that in the conversation on 17 November and the conversation on 18 November 2025, it was Mr Doueihi who said that he

did have a conversation, and that he said “leave it with me” (17/04/26; T 42). Mr Brown was asked (17/04/26; T 42): Q. This came from Mr Doueihi and not from you. Is that correct? A. This is what Mr Doueihi said that he recalls the conversation. This is after, like I said, five hours of discussion, your Honour. Mr Brown was then taken to [22] of his second affidavit on the reopening application in which he deposed that on 17 November 2025, he said words to the effect “Cam, I would have sent it” (which he said referred to the Development Consent, the dilapidation report, the engineer report, and one other document (17/04/26; T 42)). It was put to Mr Brown that in that paragraph his evidence was that it was he who said that to Mr Doueihi (and that Mr Doueihi said, “You said leave it to me”) (17/04/26; T 43). Mr Brown said (17/04/26; T 43): A. I said, “I would have sent it. I wanted to send it to everyone, but you said, Cameron, ‘Leave it with me.’” Q. Then, if we look at what you’ve said his response was, you say he said, “Yeah, that’s right, Jonathan. That’s right. And, even if I did say it, and it did not get sent.” See those words that you’ve put there? A. Yes. That’s what he said. Q. Yes. Mr Doueihi didn’t say you said, “Leave it with me.” He said, “Even if I did say it, and it did not get sent,” then various things follow. A. He’s saying, “Even if you did say it, at the end

of the day, it did not get sent.” Q. My proposition to you, Mr Brown, is this. That the words Mr Doueihi used were not, “I did say leave it with me”; his words were equivocal. He said nothing more than, “Even if I did say it.” A. He’s saying, “Even if I did say it.” So he’s admitting he did say it, okay, but at the end of the day the documents never got sent. That’s what he’s saying in the context to that line. Q. Do you accept that there’s an inconsistency between paragraph 17 of your first affidavit where you said Mr Doueihi said, “Don’t worry leave it with me” and what you are saying here where Mr Doueihi is saying, “That’s right and even if I did say it”? Do you accept that there’s an inconsistency between those two versions of the same conversation? A. No, your Honour. As to whether Mr Doueihi told Mr Brown that he must not send the reports to the Raymans, Mr Brown was questioned as to the fact that in neither of his affidavits of February 2026 or March 2026 did he say that Mr Doueihi said he must not send the reports to the Raymans (17/04/26; T 43). Mr Brown said (17/04/26; T 43-44): A. He told me in the conversation that we had on 2 March, “Don’t send the documents. Leave it to me.” Q. My question was you do not say in either of your affidavits of February or March 2026 that Mr Doueihi said to you you mustn’t send the reports to the Raymans, do you? A. I’m not sure but

if it doesn’t say it, I guess, it doesn’t say, your Honour. Q. The reason you haven’t said that in your affidavits is because he didn’t say the words “you mustn’t send them” on 2 March 2020, did he? A. He did in our telephone call on 2 March. Q. If he had said that to you on 2 March I suggest to you you would have addressed it in one of these affidavits that you have filed for the purposes of reopening your case. A. I - I would think “leave it to me” would clarify or would package the whole story together either way. Don’t forget, all these conversations we had were well after the fact when Mr Doueihi admitted that he - if he had the conversation with me he said, “Leave it with me.” So the - the sentence has been whittled down over the course of multiple communication [sic], your Honour. As to the circumstances in which the conversation of 18 November 2025 took place, Mr Brown said that he would reckon that Mr Doueihi came to his house mid-morning, saying that builders normally come early in the morning (17/04/26; T 44). He could not say what time he called Mr Rod without the information in front of him (17/04/26; T 44). As to the reason he called Mr Rod on 18 November 2025, Mr Brown said (17/04/26; T 44-46): A. The reason I called Mr Rod was because [Mr Doueihi] had no recollection of the terms of the deed that we had signed and he didn’t want me to email it to him. He wanted

to see it in person. So, therefore, he came to the house so that he could see the communication between yourself and Mr Luitingh. Q. You’re aware that Mr Doueihi doesn’t agree with that and he says he came to inspect a planter box. You’re aware of that, aren’t you? A. I’m -I am aware of that. He did tell me that on the phone prior to him coming. He said he would say that is the reason he’s coming and the planter box has been leaking for five years. He’s been there 50 times and we haven’t resolved that issue. So that is just what he used as an excuse but he - the real reason he came he wanted to see this document and for some unknown reason he didn’t want me to email it to him. Q. I’m not asking you to speculate on what Mr Doueihi wanted to do, Mr Brown. I’m asking you about your purpose. So with that in mind your purpose in wanting to talk to Mr Doueihi about the email I had sent Mr Luitingh was because you wanted to use that to encourage Mr Doueihi to accept exclusive responsibility for any liability that you might have to the Raymans. That was your purpose, was it not? A. The purpose - Cameron put the deed and a lot of the information that we had discussed over the last month or days into ChatGPT and he came up with different scenarios - some good and some bad - and he was under the influence that the deed that we had signed said that we had no recourse against the insurer

and I said, “But if you looked at the covering letter and you put the two together - if you had of put that into your ChatGPT then you would come out with a different scenario.” He was not convinced that - that - that the deed meant - I - I say it in my - I say it in my affidavit and he wanted to hear that from David Rod that, in fact, the deed was only in lieu of costs. Q. Mr Brown, none of this evidence that you’re giving about ChatGPT and these discussions is referred to at all in either of your affidavits that have been provided for the purposes of this application to reopen, is it? A. It’s not. Q. And I suggest to you that what you are doing now is reconstructing a position that you think suits your case under cross-examination. A. It’s not because I don’t believe in ChatGPT. That’s why we have a law called lawyers, judges and so forth to make these decisions for us. Q. The purpose, I suggest to you, of you having Mr Rod speak to Mr Doueihi was for you to have corroboration of the evidence you wanted Mr Doueihi to give you for the purposes of reopening your case. Do you agree with that proposition? A. Initially not. I just wanted him to understand the deed. Q. And when you say “initially not” you are saying, are you, that it was subsequently your intention that Mr Rod corroborate the conversation with Mr Doueihi for the purposes of supporting your application to reopen

your case. A. That conversation led on from the deed conversation where Cameron said he’d like to rectify the evidence that he’s given and he asked David how does he go about it and so forth and so forth and so forth and that’s how it eventuated, your Honour. Q. Can I ask you to turn to page 401 of the bundle, please, Mr Brown. Firstly, at the bottom of the page do you see that there’s an email from Mr Rod to you dated 18 November 2025 at 6.32pm? A. I do, sir, sorry. Q. And then above that do you see there’s an email from you to Mr Doueihi the same day, 9.30pm, forwarding Mr Rod’s email to Mr Doueihi? A. I do, sir. Q. And you say in your email to Mr Doueihi: “Would it be possible to get a copy of your mobile records from your bills between January to end of August 2020? Just want to check if any of the dates of the phone call on Monday, 2 March 2020 correspond. See below.” Q. Do you see what you’ve written there? A. I do, your Honour. Q. And your purpose here is to gather evidence to support your application to reopen your case, is it? A. It’s - okay. I can’t answer that, sir. I just needed to check the phone records. Yeah, I needed to be satisfied that in-- Asked about reopening, there was the following (17/04/26; T 46): Q. You’ve already given evidence that you had - that it was in your mind that you wished to reopen your case from as early as 5 November 2018, haven’t you? A.

Yes. Q. And you’ve had numerous conversations with Mr Doueihi including one with your solicitor around your kitchen table on 18 November 2020 about Mr Doueihi changing his evidence, haven’t you? A. Correct, yes. Q. And this now is an email asking Mr Doueihi to get a copy of his mobile phone records to check that the dates correspond. A. Correct. Q. And the reason why you want the phone calls is to prepare evidence with which to reopen your case. A. Sorry, sir, I had those phone records from my phone already which are submitted in - somewhere in here, your Honour. Q. Mr Brown, I asked you the reason why you wanted him to provide you with a copy of the mobile records is so that you could make sure that the dates of his phone records matched up for the purposes of reopening your case. Is that or is that not correct? A. I just wanted the phone records. Q. For what purpose? A. To see that they matched with mine. Asked about the draft letter that was attached to the email he received from Mr Rod on 18 November 2025, Mr Brown did not accept that this was a draft letter which he asked Mr Rod to prepare setting out Mr Doueihi’s evidence that he wished to change; rather, Mr Brown said “[n]o, this is a letter that Cameron asked Mr Rod to prepare” (17/04/26; T 46). Asked if he had some involvement in preparing this letter, Mr Brown said that he was “guessing Mr Rod got all this information

from when we were sitting around the dining room table with [Mr Doueihi] and Mr Sara and myself were” (17/04/26; T 46). Mr Brown accepted that he spoke to Mr Rod after the telephone conference with Mr Doueihi and Mr Sara (“Sure. Definitely”) (17/04/26; T 47). As to whether it was that afternoon he said “maybe” but could not be certain (17/04/26; T 47). As to whether he spoke to Mr Rod about the contents of this letter that he would be drafting, Mr Brown could not recall (17/04/26; T 47). As to the statement in the letter about approaching the Court to rectify the errors, Mr Brown denied that those were his words, saying that this is what Mr Doueihi told him on the phone (17/04/26; T 47). Asked whether the words “the most important issue” were his words, Mr Brown said “[t]hey seem familiar. We’ve discussed those already in another part of this conversation” (17/04/26; T 47). Mr Brown accepted that it was exactly what he had said to Mr Doueihi in his email to him of 11 November 2025 (17/04/26; T 47). Asked again as to whether in that email the “most important issue” meant the most important issue to him, Mr Brown said (17/04/26; T 47): And it is an important issue to me. It’s the only issue that I’m concerned about. Mr Brown did not accept that the purpose of drafting this letter to be signed by Mr Doueihi was to have him adopt Mr Brown’s words that this is the most important

issue (17/04/26; T 47). Mr Brown said “[n]o, Mr Doueihi asked Mr Rod to construct a letter which he said he would amend or change but he just wanted the outline or the gist of it to do, your Honour” (17/04/26; T 47). Taken to the words “on his letter dated”, Mr Brown did not accept that the word “letter” was his word (17/04/26; T 47-48). Mr Brown did not agree that he often refers to emails as letters, saying that he thought he was quite good “with that type of stuff but it’s possible that one can make an error along those lines” (17/04/26; T 48). Counsel then asked a series of questions putting to Mr Brown the versions given by Mr Doueihi, which Mr Brown denied. In particular, Mr Brown denied that he made the initial approach to Mr Doueihi to have him change his evidence (17/04/26; T 49). As to whether he sent Mr Doueihi the transcript of his evidence on 5 November 2025, for the purposes of asking him to change or amend the evidence that he had given at the hearing, Mr Brown said, “I sent him the transcripts. He wanted to put into ChatGPT” (17/04/26; T 49). When it was suggested to Mr Brown that what Mr Doueihi said to him in conversations which occurred on either, or some, or all of 5, 11, 17, 18 November 2025 was that Mr Doueihi may have said to him (Mr Brown) in a phone call on 2 March 2020 “[l]eave it with me,” but that he (Mr Doueihi) did not recall that conversation, Mr

Brown said he did “recall that sentence” (17/04/26; T 49). Asked if he also agreed with the proposition that Mr Doueihi said he did not recall the conversation on 2 March 2020, Mr Brown said “[i]nitially, he said that, but then he seemed to have recollection of it” (17/04/26; T 49). In cross-examination by counsel for Ms Rayman, Mr Brown was taken to his evidence as to the most important issue he was concerned about. He accepted that that included notification of the neighbours (17/04/26; T 50). When reminded that he had said that it was the only issue he was concerned about, Mr Brown said (17/04/26; T 50): I – I did say that, yes, sir. I aid it’s the only thing, but obviously, there were points under contention. One of them was the notification of the neighbours and the other one is the fact that Mr Klooster accused me of changing the job to – from the one piling to the other piling, which is not true. Mr Brown also pointed out that Mr Doueihi “admits it somewhere in his affidavits anyhow, even though it’s after the fact” (another example of Mr Brown arguing the case) (17/04/26; T 50). Mr Doueihi In cross-examination on the reopened hearing, Mr Doueihi readily accepted that he did not provide notice to the Raymans of the bulk excavation or the geotechnical reports and that he did not provide notification to any of the neighbours at any time (17/04/26; T 65). Mr Doueihi said

that this was an administrative error, although he did not accept that it was necessarily his error saying (17/04/26; T 65): A. … It’s an admin error. Not - I’m not putting names onto anyone. It was just an admin error. Q. On whose part? A. Could have been Mr Brown or myself. I don’t know. That’s the thing. It’s just like an admin error. There was no intent not to send it. Mr Doueihi said he did not think that he needed to provide notice, saying that he had assumed the certifier would send it (17/04/26; T 65). Pressed on this, Mr Doueihi said that it was not his obligation to send the notice (17/04/26; T 66). Mr Doueihi said his purpose in contacting Mr Brown on 5 November 2025 was that (17/04/26; T 68): A. [Mr Brown] is a good client of mine. … A. We actually formed a friendship and it was just a - purely just a phone call on his wellbeing after the trial, that was it. About that lengthy conversation on 5 November 2025, Mr Doueihi said that it was about (17/04/26; T 68): How he felt after the case. As me as a friend I was - I was - I was more listening to Mr Brown, just I was allowing him to open up and express his frustrations and he spoke about my evidence probably didn’t help him too much. And yeah, a lot of that [t]hen was just opening up about his frustrations and-- Mr Doueihi said that he said to Mr Brown (17/04/26; T 68): I said to him everything’s going to be okay, I

was reassuring, you’re good, you’re okay, that was just - I was reassuring him as a friend, yes. Mr Doueihi said that Mr Brown was the person speaking a lot, and that he (Mr Doueihi) was listening (“As a friend I was giving him, you know, just reassuring him everything’s okay”) (17/04/26; T 68). There was then the following evidence (17/04/26; T 69): Q. Did he express discontent about the evidence that you gave? A. Limited, yes. He wasn’t - he expressed his - my evidence didn’t help him in - in the trial. Q. Did he identify what evidence? A. Yes, he did. Q. What was that? A. About my - about my - not me - I wasn’t - I did not recall about sending the documents to the neighbour. I was questioned on - I - I was questioned about me telling Jonathan not to send it. That was the main one, yes. Q. That was the main-- A. Yeah, and it was his decision to do sheep [sic] piling and - and all that. Asked as to the email Mr Brown had sent to him after Mr Stockley had raised the query, Mr Doueihi did not recall what happened after that email (when asked if he thought at that stage that the Raymans should be advised) (17/04/26; T 71). Pressed on this, there was the following (17/04/26; T 71): Q. I want to put to you, Mr Doueihi, that that is extremely improbable where conditions 13 and 14 are drawn to your attention and you have no memory whatsoever of what you thought needed to be done? A.

With all due respect, I - I do a lot of projects and I don’t recall it. Q. But the notice is not a trivial - notice to the neighbours is not a trivial matter, is it? A. No. Q. It’s very important. A. Very important, yes. Q. Why did you think it was important? A. Because any - any DA conditions are important. Q. Is that all? A. Is that all, conditions? Q. Yes, is there another reason perhaps? A. DA conditions are fairly important. Mr Doueihi was taken to his affidavit on the reopening when he said (at [41]): … I may have said, “leave it with me”, as that is an expression I commonly use. [emphasis in original] Mr Doueihi accepted that was correct (17/04/26; T 77). There was the following exchange (17/04/26; T 77): Q. So whilst in the trial you said you can’t think of a reason why you would’ve said that. Your evidence now is that it something that you could’ve said because it’s an expression you commonly use? A. I was being questioned about me telling Jonathan not to send it. It’s a little bit different when I say as an expression only, leave it with me, telling Jonathan not to send it is intent. [Pausing here, that distinction is in my view an obvious distinction. The difficulty with the questioning – and perhaps also Mr Brown’s understanding of this – was that it assumes or proceeds on the basis that the expression “leave it with me” meant “don’t send”.] Q. Well, it’s

interesting that you say that, but let’s “Leave it with me”, would you agree with me that that suggests that you will take care of it? A. Leave it with me. Q. The words “Leave it with me”. A. It’s a - it’s a - it’s a common thing I say a lot of the time. Q. That’s not what I’m asking you. When you say to somebody “Leave it with me”, that means that you assume responsibility for that task? A. When I say leave it with me, yes, I would take care of it. Yeah, it’s the same thing, yes, I agree. Q. Yes, that’s right. A. Yes. When further pressed on this, there was the following (17/04/26; T 79): Q. Mr Doueihi, at the trial you said that you didn’t think that you would say “Leave it with me”, that there wasn’t a reason for you to say that. In this affidavit you explain that it is something that you do say. A. I was questioned on about I told Jon, did I tell Jonathan not to send it. They are very different expressions. Q. Well, are they? A. In my opinion yes. Q. So when you say “Leave it with me” does that mean that Jonathan must also send it? A. Not necessarily, no. Q. No. So when you say “Leave it with me” it ‘means [sic] that you are going to send the notification because he must leave it to you. There was an objection to that last question. Mr Luitingh said it was critical to ask that question. I did not agree, in circumstances where it seemed to me that it had already been

answered in the negative. Taken to the email Mr Brown had sent following the two-hour discussion on 5 November 2025, Mr Doueihi said that he disagreed with a lot of that email (17/04/26; T 80). Mr Doueihi said that he called Mr Brown once, it did not ring through, he called him again and it did not ring (17/04/26; T 82). Mr Doueihi assumed that was because Mr Brown was in Fiji and it did not connect. Mr Doueihi said Mr Brown then gave him a call back. Mr Doueihi denied that he asked Mr Brown to send him a transcript (17/04/26; T 82). Mr Doueihi did not agree that he had said to Mr Brown that “[t]he transcript does not reflect what happened and the two events” (17/04/26; T 82). There was the following exchange (17/04/26; T 83-84): Q. You said that he would like to rectify that you were nervous and that you felt intimidated and may have created the wrong impression, but that you did undertake to inform the neighbours and provide documents under condition 13 and 14 and told me not to worry about it, you will do it. A. That’s incorrect. I was nervous, don’t get me wrong. I was - I was nervous, I’m - I’m not going to lie about that. Q. Yes. A. But-- Q. Did you feel intimidated? A. A little bit because it’s part of being in the cross-examined but other than that I didn’t. Q. So he was correct when he recorded properly that you were nervous and that you felt intimidated? A. More

nervous, I’m nervous now. … Q. Mr Doueihi, did you say to Mr Brown that you felt nervous and that you felt intimidated? [D]id you say to Mr Brown that you felt nervous and that you felt intimidated? A. I maybe could have. It was just out of - just a part of a conversation. That’s-- Q. So, you could have said-- A. I - I - I could have maybe said that to - to Jonathan, I felt nervous, and I think he asked hard questions. So, yes. I might have. Mr Doueihi denied that he had said to Mr Brown that he did undertake to inform the neighbours (17/04/26; T 86). The cross-examination on this issue included (17/04/26; T 86): A. I said - I told Jonathan that, as a general expression that I regularly use, I may have said “Leave it with me.” Q. Yes. A. That’s - that’s all I said. But, I reassured - I was very clear that I still don’t recall the conversation. I just want to make myself very clear. Q. We’ll get to that in a moment. We’ll get to whether or not you recall the conversation in a moment. But, right at the moment, what I’m asking you is this. That you did undertake to inform the neighbours. Is that something that you might have said? A. No. I don’t - I’m not - I did not say that. Q. You didn’t say to him, “Leave it to me”? A. It’s not saying that in this email As to the expression “leave it with me”, Mr Doueihi accepted in qualified terms (“In some sense, yes. Maybe”) that it meant

the same thing as no and pertinently said “[t]hat’s how you understand it” but he again did not accept that Mr Brown’s email was correct (where it said, “You called me and said I should send the documents to [the Stockley house], but not to worry about [the Raymans], because you would take care of it, and ask the PCA to do the same”) (17/04/26; T 87). Mr Doueihi denied that he said to Mr Brown that he wanted to tell the judge that, on reflection, his evidence was inaccurate and he wanted to rectify that (17/04/26; T 87). Mr Doueihi accepted that he did not write to Mr Brown in response to this email; he said they might have spoken on the phone and that “there was a little conversation about it” but did not recall having a conversation about the email (17/04/26; T 87). Mr Doueihi did not accept that the reason he did not write to Mr Brown was because everything that he said in this email was correct and he disputed that he agreed with it (17/04/26; T 87). Mr Doueihi agreed that he spoke to a lawyer at some stage. He said “they arranged” the lawyer to call him and that the lawyer called (17/04/26; T 88). There was then the following evidence, that to some extent went around in circles so I will set it out in full (17/04/26; T 89-94): Q. Mr Doueihi, please, if you can just answer my question. I’m not asking you why it happened at this stage, what I’m saying is you consulted a

lawyer on the 14th, that was before you spoke to Mr Rodd, correct? A. Yeah, I - I spoke with a lawyer, I’m not denying that, okay. The lawyer rang me, I don’t want to make it sound I called the lawyer. … Q. On the 18th, did you tell Mr Rodd that you had consulted a lawyer? A. I had a conversation with a lawyer, yes. Q. Could you tell the Court how it came about that you consulted with that lawyer? A. I received a call from a lawyer on Friday 14 November late in the afternoon and this particular lawyer asked me that I had some questions to ask - ask her. Q. Yes. A. Which I was like, okay. I didn’t organise this lawyer, I didn’t reach out to this lawyer, this lawyer called me. Q. Yes. A. I make that straight, yeah, I don’t - I did not call this lawyer, I did not know who she was, I don’t know who asked this lawyer to give me a call. Q. Yes. A. In matter of fact I did not want to even speak to her, okay, but-- Q. And you didn’t tell her that? A. I was uncomfortable, but I agreed to - to speak with her just to - just for my own peace of mind as well I thought best I speak with her. Q. Yes, okay, for your own peace of mind; we’ll get back to that. A. Mm-hmm. Q. But was there at any time a discussion between you and Mr Brown about you speaking to an independent lawyer? A. Yes. Q. There was a discussion. So prior to this-- A. Yes. Q. Prior to this there was a discussion between you

and Mr Brown about speaking to an independent lawyer? A. Mr Brown, that’s part - was part of the 15 November conversation that you will need to speak to a lawyer, speak to a lawyer and I said, “Well, I don’t actually know a lawyer” or “I don’t really want to speak to a lawyer” and Mr said “We’ll probably have to arrange one for you to call you”. Q. Let’s just go over that. Mr Brown asked you on your version of events, Mr Brown asked you if you want to speak to an independent lawyer? A. Yes. Q. Is that correct? A. Yes. Q. And your answer to him was? A. Well, I’m - I’m happy to but I don’t know where it’s going to go, but if you - if you want me to speak to a lawyer I will speak with a lawyer. Q. What about? A. I don’t know. I don’t know what questions the lawyer was going to call me. Q. Did you put that to Mr Brown? A. No, but I’m assuming it was about my evidence and that was it. Q. Well, what about your evidence, Mr Brown says to you “Do you want to speak to an independent lawyer?”, you didn’t say to him, “What must I discuss with the independent lawyer?”? [sic] A. No, I - all I did with this independent lawyer, I explained to the lawyer that how the - how the - the - the trial went, I spoke to her about my questions, did I do the right thing, did I answer them properly, and then she was satisfied how I asked the questions and I - that was it, it was just peace of mind did I

let - did I do anything wrong to my client or - it was just more of a peace of mind for myself. Q. Mr Doueihi, the question that I asked you was when Mr Brown according to your evidence suggested that you speak to a lawyer-- A. Mm-hmm. Q. --did you not say to him “What must I speak to the lawyer about? Why am I speaking to a lawyer, why are you suggesting this?”. A. Look, I assumed about my evidence, that’s all. Q. You assumed? A. I assumed it was about my evidence, yes. Q. You didn’t ask him the question? A. Not really, no, I just assumed what it was about, yeah. Q. You assumed what it was about? A. I assumed it was about the evidence. Q. What evidence? A. The evidence that I gave in trial. Q. What aspect of the evidence? A. I’m assuming the March 2nd 2020 phone call. Q. Okay, so now we’re getting to it. So Mr Brown expresses discontent about the way in which you gave evidence about the March 2nd conversation? A. I’m assuming that’s how he felt, yeah. Q. And he then suggests to you, do you want to speak to an independent lawyer about that? A. Well, I spoke to this independent lawyer-- Q. No, my question, Mr Doueihi, is he then suggests to you after he expressed his discontent, he then suggests to you, do you want to speak to an independent lawyer? A. If I have to speak to - if you want me to speak to an independent lawyer, I will do-- Q. Why? A. To speak about my evidence. Q.

But what about it? You’ve told him that you don’t recall the conversation. A. And it’s going to stay like that, and still don’t recall it. Q. Well, that might be so but why would you speak to an independent lawyer if you had told him you don’t recall the conversation and that is your evidence; what’s there to talk about? A. I just wanted to get a bit of clarity on my evidence, that’s all it was. Q. To get clarity? A. To say just for personal relief, just to let - just I did it for Mr Brown, spoke to a lawyer, she - she said that what I did in my trial I did very good in my trial, “You did your best and you can answer only truthfully”, and that’s what I said to her, and she goes, “You did everything you could in the trial to, you know, help his case run through”. Q. Mr Doueihi, that’s what I asked you. [T]he conviction [sic; presumably, the conversation] between you and Mr Brown goes about him expressing discontent about the way you gave evidence about the March 2 conversation, correct? A. Yes. Q. Your view on that was you can’t recall the conversation? A. That’s correct. Q. So what is there to talk to a lawyer about given those two versions? A. Because Mr Brown asked me to speak to a lawyer. Q. Why? A. Because he asked me. Q. Now, why would you want to do that? A. Because Jonathan is my friend and he’s a good - he’s a good man to me, I just thought I would speak to a lawyer,

that’s all it was. Q. Did you say earlier that you wanted to clarify it, any evidence, a few ago? A. Clarify. Clarify. Q. Clarify your evidence? A. Yeah, just to get, you know, relief that what I said in Court was - was good, that’s all. Q. Well, to clarify your evidence suggests that it may not have been clear; isn’t that so? A. No. Q. Well, then why would you want to clarify it? A. I don’t know. I did it for my client. Q. But that’s the point I’m trying to make, Mr Doueihi, the fact is there was nothing to clarify because your version of events was that you don’t recall the conversation. A. That’s right. Q. So there was no need to talk to the lawyer. A. The lawyer called me. Q. No, no. There was no need to talk to the lawyer, Mr Doueihi because on your version of events it was clear; isn’t that correct? A. My evidence was clear. Q. The only reason when it would be necessary to talk to a lawyer is if your evidence wasn’t clear. A. Okay, but-- Q. Isn’t that right? A. --that’s not right on my end, no. Q. Why; you would only want to clarify if the evidence if it wasn’t clear? A. It was clear. Q. I’m not saying whether it was. The only reason you would want to clarify it, Mr Doueihi, is if it wasn’t clear, but if it was clear there was no need to talk to the lawyer? A. That’s not correct. Q. So I’m saying to you that the probability is that you said to Jonathan “My evidence was

not correct, I created the wrong impression and I want to clarify it, that’s why I want to talk to a lawyer”. A. That’s not correct. Q. Because the opposite doesn’t make sense. If your evidence was clear then you will have said to Jonathan, Jonathan, my evidence is clear, there’s nothing to talk to a lawyer about; isn’t that’s right? A. I explained to Mr Brown that my evidence was clear, I do not recall the conversation, and I was truthful in the trial. I’ve explained that to him, why the lawyer called me, I don’t know, right, I - I said yes for the sake of my client and as a friend, I said yes, I will speak to a lawyer. What I explained to the lawyer is what I said in Court-- Mr Doueihi accepted that he had had a brief conversation with a client who was “in the legal industry” and worked with experts, about the case (17/04/26; T 94). Mr Doueihi confirmed his affidavit evidence that he went to see Mr Brown on 18 November 2025 but that the “waterproofer” had cancelled when he was five minutes away from Mr Brown’s house (17/04/26; T 95). Mr Doueihi was adamant that he went there to talk to Mr Brown about the waterproofing and that that was the intent (17/04/26; T 95). Asked about whether they had spoken about the waterproofing, he said “I don’t - I don’t recall if - we did spoke about it briefly, but mostly well wasn’t much about the waterproofing if we did speak about the

waterproofing” (17/04/26; T 95). Mr Doueihi then said “[w]e didn’t speak about the waterproofing” (17/04/26; T 95). Mr Doueihi disagreed that it was a ruse “to say that that was the reason you went when in fact the real reason that you went to see him was because you wanted to discuss the deed with him” (17/04/26; T 97). Mr Doueihi agreed that on that day they did speak about the (settlement) deed but insisted the reason he went was to speak about the waterproofing (17/04/26; T 97). As to the letter (drafted by Mr Rod) sent to him by Mr Brown, Mr Doueihi said he disagreed “100%” with the letter (17/04/26; T 97-101): Q. Did you know that this letter was going to be sent to you? A. They said they were going to send me something, but I was very uncomfortable at the time. Q. I didn’t ask you whether you were uncomfortable. Did you know, that this letter was going to come to you? A. I knew there was going to be a letter being sent to me, and I was very uncomfortable. Q. And you knew that because in your conversation with Mr Rodd, the question of writing a letter arose; isn’t that correct? A. Well, there was-- Q. I withdraw that, let me try to make it clear. In the conversation that you had with Mr Rodd the question of whether or not you should write a letter about your evidence arose? A. It come up, yes. Q. Well, not it did come up, let’s just talk about that; let me ask you this

question. The evidence that was given by Mr Brown and Mr Rodd this morning was that you asked for a letter to be written so that you could consider it? A. No. Q. So they said to you they were going to write you a letter? A. They we’ll write you a letter. Q. And did you ask them what about, why? A. About apparently how I felt about the case to help them with their evidence. Q. You had already told them what you think your evidence was, what was the necessity of them writing a letter to you? A. What was the reason for this letter? Q. Yes. A. I don’t know, to - to reopen the case. Q. Why did you agree to get a letter from them? A. Because I was feeling very uncomfortable at this stage. Q. Why did you agree to get it, why did you not say to them, I don’t want a letter from you? A. Because - because I was very uncomfortable in Mr Brown’s home, right-- Q. Yes. A. --I - I didn’t want to push things further and when I did get the letter I was going to ignore the letter, and that’s what I did. Q. Sorry, just say that again. A. When I got the letter, I ignored it and I didn’t want to have anything to do with it. Q. Yes, why didn’t you tell them that during the conversation? A. I was very - I was very uncomfortable. … Q. Why did you not say to Mr Brown and Mr Rodd, I don’t want to get a letter from you? A. Because I - I said before, I was very uncomfortable with saying no, I just - just

let it go, let the letter - letter come to me and I’ll ignore it, that’s what I had in my head to do, and I did that. Q. I understand that. Why were you uncomfortable? A. Because I was in Mr Brown’s home. Q. But you’d been there many times? A. Not for this purpose. Q. No. The fact that you were in his home isn’t something that made you uncomfortable. Did they say something that made you uncomfortable? A. I’m never uncomfortable in Mr Brown’s home, they’re like family. Q. Correct. A. But to speak about this, right, it made me feel uncomfortable. Q. So why didn’t you say that? A. Because I just felt uncomfortable and I just - I thought let it go and when I get the letter, if - if I did get the letter, I’ll ignore it, and I - and I rang Jonathan and I told him I’m not doing it. Q. So you decided at the time already when they had that conversation with you that they could write the letter and you were not going to - you were going to ignore it; is that correct? A. I was never going to write - I was never going to accept this letter. Q. But you knew that at the time that they said to you they’re going to write the letter? A. Yes. Q. So as far as they’re [sic] proposal is concerned, that your approach was I’m going to ignore the letter if they write it? A. Yes. Q. But you didn’t tell them that? A. I was, like I said, I didn’t tell them because I was feeling a little bit uncomfortable

in the home. Q. I’m not asking you why, I’m saying you did not tell them that you were going to ignore it? A. Ignore it, no. Q. Yes. A. I rang Jonathan after the fact. … A. I responded to this letter via phone call when Jonathan called me and I said I won’t be doing it, so that’s my - that was my response. Q. And that was your response? A. That was my response to Jonathan. Q. “I won’t be doing it”, you didn’t tell him why? A. It’s quite obvious me signing this, it’s not good. Q. Not good for whom? A. Me, it’s not good, it’s just not right. Q. Well, no, you said it’s not good, what do you mean by that? A. Because it’s coming from another solicitor, another lawyer from a trial. Q. Yes, why didn’t you say that when you were having the conversation, you can’t write letters to me? A. Because I was feeling uncomfortable at his home and like I said to you, Jonathan is a good friend of mine and I - you can understand the situation I’m in as well, like-- Q. So the only reason why you didn’t respond is because it was written by Mr Rodd, who’s another lawyer; is that right? A. He wasn’t just another lawyer, he was a lawyer that was part of the trial. Q. Yes. A. Yeah. Because it’s wrong. Q. That’s why you said - I beg your pardon? A. This is wrong. Q. What is wrong? A. This letter. … Q. Is it wrong because Mr Rodd wrote it, or is it wrong because its contents are-- A. Both. Q. Both? A.

Yes. … Q. Incorrect, yes. The facts are incorrect in this letter? A. It’s incorrect, this whole letter’s incorrect, yes. Q. Yes. And so you didn’t think that it was necessary to write to Mr Rodd and say, write to Jonathan or speak to Jonathan and say the facts are incorrect? A. I spoke to Jonathan on the phone, he called me or I called him, and I said I won’t be doing it because it’s not right, the whole - the - what he wrote in the letter is incorrect and him providing me letter is also incorrect. Q. Well, previously your answer to that question was “I’m not doing it”? A. That’s right. Q. Did you add the words, because it’s incorrect, because I don’t believe that’s in your affidavit, but did you add the words-- A. I said I won’t be doing it, that’s what I-- Q. You said you won’t be doing it? A. That’s correct, signing it. Q. And that’s it? A. That’s it. Q. That’s it. You didn’t say it’s incorrect? A. I might’ve carried on a little bit more with - with Jonathan telling I’m why, but I don’t recall what I said. Q. You might’ve, but that’s something else you don’t recall; is that correct? A. Maybe, I don’t recall exactly every conversation I’ve had with Mr Jonathan. Mr Doueihi was adamant that he did not say to Mr Brown that he did recall the conversation on 2 March 2020. Asked whether he may have said to Mr Brown that Mr Brown “could leave it with [him], or [he would] take care

of the notification”, Mr Doueihi reiterated that “[a]gain, I explained - I explained this already, it’s a common expression that I use on a daily basis, all right, if that conversation ever occurred, on 2 March 2020, I may have said that, that’s what I’m saying” but maintained that he was clear with Mr Brown and Mr Rod that he did not recall the conversation (17/04/26; T 103). More than once, Mr Doueihi said that “[l]eave it to me” was a common expression he used (17/04/26; T 103). Mr Doueihi accepted that if he said “I’ll take care of it” or “[l]eave it to me”, he would mean that (17/04/26; T 103). It was put to Mr Doueihi that he had had almost seven or eight hours of conversation with Mr Brown over the telephone after the case between then and January 2026 and Mr Doueihi accepted that they spoke for many hours (17/04/26; T 104). (This highlights the obvious risk of contamination of the evidence as a result of those many hours of conversations – see below.) Mr Doueihi maintained that he could not recall the conversation on 2 March 2020. There was then the following evidence (17/04/26; T 105): Q. Yes, and he said to you that you did have the conversation. A. I don’t know if I had the conversation or not. But there’s-- Q. But you’re not disputing that you had the conversation. A. I’m disputing there was a conversation. Q. So you accept-- A. I know there was a phone call. Q.

--that there was a conversation, correct? A. There would have been a conversation, maybe. Q. On the second? A. I don’t know. Q. And in that conversation you may have said, “Leave it to me.” A. Maybe, I don’t know. Q. Yes and if he says that you said, “Leave it to me,” you can’t gainsay that. You can’t dispute that because you don’t recall it. A. I don’t recall it. Q. What I’m asking you is if he says that you said, “Leave it to me,” or, “I’ll take care of it,” you cannot gainsay that evidence because you don’t recall it? A. I don’t recall it. I don’t understand the question sorry. Mr Sara Mr Sara, in cross-examination, said that he and Mr Doueihi went to Mr Brown’s home on 18 November 2025 to meet with the “waterproofer” and that he cancelled on them (17/04/26; T 55). Mr Sara did not himself make arrangements with the waterproofer and the cancellation was not made with him (17/04/26; T 55). He said that there was no discussion of waterproofing on the day (17/04/26; T 56). Mr Sara could not recall how long they were there. When asked if it was a couple of hours, he said, “Maybe couple of hours. Maybe hour” (17/04/26; T 56). He then seemed content to accept that it was two hours (17/04/26; T 56), which to my observation indicated that Mr Sara was a suggestible witness. Mr Sara’s account of the conversation was that (17/04/26; T 56): A. So when we were approached by Jonathan-- Q.

Yes. A. --the first discussion was that like Jonathan had just saying you know, like he was talking to us about he feels and you know, his, you know, he’s telling us about like he feels bad and “Am I bad guy” and then we were just comforting him and you know, reassuring him, telling him “No, you’re not”, you know, all this kind of - you know, like you know, all the stuff that you would tell someone. And that’s pretty much the first conversation, and then - then Jonathan did bring up something saying that I need to contact my lawyer for you to - I don’t know exactly what it was, but it was something about I think maybe a deed or signing - signing - the lawyer wanted him to sign a paper to change his evidence, and that’s - that’s all I really know. Taken to various paragraphs of his affidavit where he had been vague as to what had been said (“something” or “about something”), Mr Sara said (17/04/26; T 57-60): A. No, like I said, I - I was - like I said, I don’t remember half the conversation that was going on there. All I remember, and I’m going to just be straight, is the conversation that happened between Jonathan, Cameron about the lawyer, and that’s really all I know. … A. Yep. And I’m being straight, and that’s it. … Q. So the only part of paragraph 12 that I’d like you to address your mind to, and you can have a look there, is just I remember up to the word privately to

Jonathan, “I remember the lawyer saying that he would write a letter to Cameron to sign an email privately to Jonathan”. A. Yes, correct. Q. Do you see those there. You can’t remember the words either? A. I don’t remember what the letter’s about, but all I remember, the lawyer wanted him to change his - what happened at the first time Cameron went to Court— … Q. When you actually have a look at that paragraph, Mr Sara, you only have the lawyer’s words that you’ve reconstructed. There’s no response by Mr Doueihi there. That’s correct, isn’t it? A. That’s correct. Q. Obviously, Mr Doueihi would have responded, but you don’t remember that. A. No. He - I’m not going to answer that question right now, but there was - he just asked - he - when he asked him to do it, he just said, “Why would I write a letter if I’m not in the wrong?” That’s-- Q. That’s not in your affidavit. A. Yeah. That’s further down, when it gets - when you read further. Q. That is not in paragraph 13. A. Yeah. Q. In paragraph 13, all you recall is what you think the lawyer might have said. A. Yeah. Q. Correct? A. Correct. Q. But, you don’t say in paragraph 13 what Mr Doueihi said to the lawyer when he said that. A. No. I’m - like I said, I’m just remembering what I remember, and that’s what I’ve said. Q. You’re reconstructing what you remember. A. Yes. Remember. … Q. Again, do you remember those specific words,

or are you trying to remember the thrust of what was said? A. No. That - Cameron did say he doesn’t feel comfortable - comfortable, you know, doing this because he’s not in the wrong. Q. He’s not in the wrong. You haven’t got the words there, he’s not in the wrong. A. Yeah. I’m just talking, top of my head now, but yeah, that you just want - some - you just want me to write, you know, this letter, and I didn’t do anything, you know, in the wrong. You know what I mean? Q. You mentioned being in the wrong a couple of times today, but you definitely remember that he said, “I’m not in the wrong”? A. No. Like, he doesn’t want to write a letter that if - for - for no reason, if he didn’t do anything. That’s what he’s saying. Like-- Q. If he didn’t do anything wrong? A. Yeah. Yeah. Like, why change? Why? He didn’t go to Court. They - they want him to change his words around, like, saying that he went to Court and didn’t mention the right - the right thing. That’s what it was about. Q. That’s not clear from-- A. Yeah. Q. --that paragraph, is it? There’s nothing there about, “If I’m in the wrong.” A. Well, it’s the same thing. “I didn’t do anything.” It’s the same thing. Q. No. There’s nothing there that says, “I didn’t do anything.” A. Yeah. So, “you just want me to say something I didn’t do.” Objection to evidence of Mr Rod on basis that it was improperly obtained Having summarised

above the evidence given as to the circumstances in which the evidence on the reopening application was obtained by Mr Rod, I now deal with the objection taken by Scopeview pursuant to s 138 of the Evidence Act to Mr Rod’s evidence on the basis that it had been improperly obtained. As adverted to above, preliminary rulings on the evidentiary objections to the various affidavits read in support and opposition of the notice of motion were made on 10 April 2026. To the extent that there were provisional rulings made in relation to the affidavit of Mr Brown sworn 9 February 2026 (10/04/26; T 2), I have not changed my view and those will be treated as now unqualified (I refer in this regard to my provisional rejection at that time of [19] (whole paragraph) and [22] (the words, “from this discussion” through to “I changed the...”)). As to the affidavit of Mr Brown sworn on 19 March 2026, the same applies (10/04/26; T 2-3), including my then provisional rejection of the second quoted paragraph in [11] on the ground of relevance. (Similarly, I made rulings in relation to the affidavit sworn 26 February 2026 of Mr Doueihi (10/04/26; T 5-6), some provisional (see [25], the words, “it is true that I had assumed” through to the end of the second sentence; [30]-[33], where the objection was that these went beyond the scope of the leave; and [43]), which I now confirm, and to the affidavit

sworn 25 February 2026 of Mr Sara (provisionally allowing [13]), which I again now confirm. It is not necessary here to record those rulings, which should be clear on the transcript.) The more contentious issue related to Scopeview’s objection to the whole of the affidavit of Mr Rod affirmed on 9 February 2026 on the ground that the evidence had been obtained improperly within the meaning of s 138 of the Evidence Act. I deferred ruling on the objection until judgment, given that I needed a better understanding of the circumstances in which the evidence had been obtained and, if improperly obtained, I needed to carry out the balancing exercise under s 138(3) of the Evidence Act in order to make a ruling in relation to that provision. In the event that the evidence was not ultimately rejected on the basis of the s 138 ruling, I made various other rulings on portions of that affidavit and Mr Rod’s subsequent affidavit affirmed on 18 March 2026 (10/04/26; T 5). Relevant principles Section 138 of the Evidence Act relevantly provides: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained— (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence

that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning— (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account— (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was

contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note— The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth. Section 138 of the Evidence Act is a modified form of the common law exclusionary public policy discretion described in Bunning v Cross (1978) 141 CLR 54 (Bunning v Cross) (see Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 (Kadir) at [11]). In other words, s 138 derives from the principles developed in the High Court decisions of Bunning v Cross, Cleland v The Queen (1982) 151 CLR 1, R v Ireland (1970) 126 CLR 321 and Ridgeway v The Queen (1995) 184 CLR 19 (Ridgeway) (see Mokbel v The King [2025] VSCA 243 (Mokbel) at [690]). In Mokbel, the Victorian Court of Appeal explained the two principal differences between s 138 and the common law discretion as follows (at [699]-[700]): First, s 138 alters the burden of proof that applied at common law. Under s 138, the onus is on the accused to establish the relevant impropriety on

the balance of probabilities. Once that impropriety is established, the burden then shifts to the prosecution to establish, under s 138(3), that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been illegally or improperly obtained in that way. [citation omitted] Secondly, s 138 is not expressed as a discretion, but in mandatory terms. That is, evidence that was obtained unlawfully or improperly must be excluded, unless the prosecution establishes that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the manner in which the evidence in the particular case was obtained. It has been recognised that s 138 has a broad scope (Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 (Robinson v Woolworths) at [21]), that it applies to both criminal and civil proceedings and that it is not confined to evidence illegally or improperly obtained by police or other law enforcement agencies (Kadir at [12]-[13]). In Mann v R [2023] NSWCCA 256, Kirk JA (with whom N Adams J, as her Honour then was, and R A Hulme AJ agreed) explained that determining whether evidence is to be excluded under s 138 involves the following steps (at [10]): 1. The judicial officer must find the relevant facts (if not agreed) with respect to how the evidence was obtained.

2. It is then necessary to reach a conclusion as to whether the evidence was obtained improperly or in contravention of an Australian law, or in consequence of such. Whether evidence was obtained as a result of a contravention of an Australian law involves a legal conclusion. Whether evidence was obtained as a result of impropriety involves a question of characterisation. If it was obtained by Police, then that issue is determined by reference to “minimum standards of acceptable police conduct”: Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1 at [14], quoting Ridgeway v The Queen (1995) 184 CLR 19 at 37; [1995] HCA 66. Section 138(2) and s 139 may also be relevant to finding impropriety.

3. If the judicial officer concludes that the evidence was obtained improperly or in contravention of an Australian law then the evidence is not admissible unless the judicial officer concludes that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Once impropriety or illegality is established, the onus of proof and persuasion is on the party seeking that the evidence be admitted: note Kadir at [47]; R v Riley [2020] NSWCCA 283 at [36]. The conclusion involves the evaluative weighing up of those factors listed in s 138(3) which are relevant in the particular case. That list is not exhaustive; the judicial officer may also take into account any other relevant matters. The factors listed in s 138(3) may themselves involve issues of evaluation, such as consideration of the probative value of the evidence (par (a)), its importance in the proceeding (par (b)) and the gravity of the impropriety or contravention (par (c)). [emphasis in original] Section 138(1)(b) of the Evidence Act makes it clear that the actual “obtaining” need not be improper or in contravention of an Australian law – it is sufficient if the obtaining was “in consequence of” such an impropriety or contravention. A chain of causation must be shown between the impropriety or contravention and the

obtaining of the evidence. The Court of Criminal Appeal has accepted that it is appropriate to apply the “but for” test of causation (R v Grech; R v Kadir [2017] NSWCCA 288 at [119]). In this regard, one can comfortably conclude that Mr Rod would not have obtained the evidence as to the contents of the conversation between Mr Doueihi and Mr Brown “but for” his breaches of rr 22.4, 25.1 and 33.1 of the Solicitors’ Conduct Rules (even if that evidence could have been adduced from Mr Doueihi in another way) since the relevant evidence was of the very conversation to which Mr Rod should not have been a party. The Evidence Act does not define “improperly” or “impropriety”, in the absence of which regard is to be had to the general law (Robinson v Woolworths at [22]). Nor is a definition of “impropriety” provided in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or the Solicitors’ Conduct Rules. Ultimately it is for the court to determine whether methods used to obtain evidence are “proper” or “improper”. The principles set out in Ridgeway apply to s 138 in determining whether there is an impropriety (Fleming v R [2009] NSWCCA 233 at [18]; Robinson v Woolworths at [22]). It has been observed that the relevant ordinary meanings of “improper” include “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong” (Parker v

Comptroller-General of Customs (2009) ALJR 494; [2009] HCA 7 at [29]). In Robinson v Woolworths Ltd, Basten JA considered the meaning of “impropriety” for the purposes of s 138 and explained (at [23]): … [T]he identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards. … Basten JA emphasised the necessity of establishing the minimum standards of conduct against which the claim of impropriety may be assessed (at [37]): … it is necessary to note the indeterminacy of the test identified by reference to inconsistency with “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”: Ridgeway (at 36). Such a test invites assertion and counter-assertion, with no objective touchstone to assist in deciding which to accept and which to reject. It is at least doubtful whether a majority of the Australian community would have shared the High Court’s view of the “entrapment” of Mr Ridgeway: see for

example, the comments of McHugh J (at 85). The answer is not necessarily to eschew the task, but to establish, in advance, standards of conduct against which a claim of impropriety can be assessed. Where no relevant pre-existing standard has been breached, it should be a rare case in which impropriety would lead to exclusion. (Of course, standards may themselves require scrutiny, but no relevant standard was identified in the present case.) And the test of such a case must involve judicial appraisal of all potentially relevant public policy considerations, being the task actually undertaken in Ridgeway. Appeals to “community standards” will tend to substitute subjective reactions for careful analysis, albeit of ill-defined concepts. The minimum standards by which the court assesses the impugned conduct necessarily depend upon the context. For example, a different standard is required of law enforcement officers than of private individuals (see Kadir at [14]). In Kadir, Kiefel CJ, Bell, Keane, Nettle and Edelman JJ stated (at [14]) that the “standard by which the court assesses the impropriety of the conduct of private individuals is less clear” than cases where improper or illegal conduct of the police is concerned. In Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617, Lee J considered the relevance of context in determining whether evidence

was obtained improperly or in consequence of an impropriety under s 138 of the Evidence Act. His Honour observed (at [69]-[70]): I would have thought that the weight to be given to public policy favouring the exclusion of the evidence (including the public interest in maintaining standards of propriety by those entrusted with statutory powers) will necessarily vary depending upon the context, including whether one is considering criminal law enforcement or the activity of civil regulators. It seems to me that this context will not only be relevant at the second stage which has, as its point of departure, evidence obtained improperly or in contravention of an Australian law, but also in the anterior, first stage evaluative assessment of what is, in fact, improper in all the circumstances. In any event, … in assessing, at the first stage, what is improper or amounts to an impropriety, authority directs me to give consideration to the minimum standards expected and required in the relevant context (so to this extent, context is important). … In some circumstances, equitable breach may constitute an “impropriety” and evidence that is obtained in breach of contract may be obtained “improperly” (Taylor v Burgess [2002] NSWSC 676 at [34]). Similarly, contravention of a code of conduct or a protocol may enliven s 138 (see R v Em [2003] NSWCCA 374 (R v Em) and Australian Securities and

Investments Commission v Macdonald (No 5) [2008] NSWSC 1169 (ASIC v Macdonald)). In Uniform Evidence Law (21st ed), the examples of “impropriety” given include: breach of applicable internal police guidelines and instructions (R v Em at [692]); breach of the Workplace Surveillance Act 2005 (NSW) (Secure Logic Pty Ltd v Noble (No 2) (2021) 306 IR 241; [2021] NSWSC 675 at [395]-[413]); “entrapment” (Ridgeway at 36-37); misstatement of fact in an affidavit in support of a warrant (R v Cornwell (2003) 57 NSWLR 82); and failure to comply with an agreed protocol regarding access to material provided under civil discovery rules (ASIC v Macdonald at [23]). In ASIC v Macdonald, the Australian Securities and Investments Commission sought to tender documents obtained through a search of a defendant’s laptop in contravention of its own protocol for such searches. Gzell J, in concluding that the breach of protocol constituted an impropriety for the purposes of s 138, observed (at [23]-[25]): This is not a case of mere breach of contract. Minimum standards that our society should expect of ASIC require it, in exercise of its wide powers of discovery, to ensure that it acts within the terms of any protocol with which it has agreed to comply when given direct access to digitally stored information. Otherwise essential privileges against self-incrimination, client legal privilege and privilege

against exposure to penalties are at risk. This is not a case of minor contravention. The documents were obtained in breach of the protocol where no variation of it had been agreed. There is no basis to conclude that the breach was wilful or reckless, but that does not, in my view, exclude the situation from a breach of minimum standards demanded by the public. In my view, s 138(1) is engaged. In De Costi Seafoods (Franchises) Pty Ltd v Wachtenheim (No 2) [2012] NSWDC 286, the cross-claimants sought to tender a recording of part of a telephone conversation between a witness and counsel for the cross-claimants. The conversation occurred six weeks into the trial in the presence of other persons, relevantly including Mr Turner, a witness in the proceedings who was under cross-examination at the time, and Mr Wachtenheim, the first cross-claimant who commenced his oral evidence the following day. The cross-defendants contended that the recording should not be admitted pursuant to s 138 of the Evidence Act on the basis that the evidence was obtained illegally or improperly. Following a finding (at [61]) that there was a contravention of the Surveillance Devices Act 2007 (NSW) and that the evidence was consequently obtained illegally, Taylor DCJ considered whether the evidence was obtained improperly or in consequence of an impropriety due to the presence of Mr Turner and Mr

Wachtenheim. His Honour observed (at [65]): … The impropriety of counsel and solicitor in having Mr Turner and Mr Wachtenheim present at the time of the conversation with [the witness] on loudspeaker is a basis for exclusion. I would not be satisfied that the mere presence of Mr Wachtenheim and Mr Turner resulted in the evidence being obtained improperly or in consequence of an impropriety. However, Mr Turner made the initial recording and Mr Wachtenheim procured the evidence by his initial conversation with [the witness] and also further recorded the conversation. These matters establish that the evidence was obtained improperly and in consequence of an impropriety. This satisfies the requirements of section 138(1)(a) and (b) of the Evidence Act 1995. Where the party seeking to exclude the evidence establishes that the evidence was obtained illegally or improperly, the party seeking to admit the evidence bears the onus of persuading the court that “the desirability of admission outweighs any undesirability” (MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [111]; see also Director of Public Prosecutions v Marijancevic (2011) 33 VR 440 at [17]). In Kadir, the High Court considered the public interests the court is required to weigh under s 138 and observed (at [13]): As s 138 is not confined to criminal proceedings or to evidence

obtained by, or in consequence of, the misconduct of those engaged in law enforcement, the public interests that the court is required to weigh are broader than those weighed in the exercise of the Bunning v Cross discretion. The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally. ... The factors to be considered under s 138(3) of the Evidence Act are mandatory but not necessarily exhaustive (R v Riley [2020] NSWCCA 283 at [110]) and are not to be considered in isolation (Kadir at [12]-[13]). The gravity of the illegality or impropriety and whether the illegality or impropriety was deliberate or reckless are often given “particular weight” (Mokbel at [701]). Nevertheless, in Kadir the High Court observed (at [15]) that the “significance of some factors will vary depending upon whether the court is determining admissibility in criminal or civil proceedings or … where the impropriety or illegality does not involve law enforcement officers”. In ASIC v Macdonald, Gzell J considered the desirability and undesirability of admitting documents in circumstances where (at [23]) the “essential privileges against self-incrimination,

client legal privilege and privilege against exposure to penalties” were said to be put at risk by a breach of protocol concerning discovery. Gzell J concluded that the desirability of admitting the evidence did not outweigh the undesirability and observed (at [28]-[29]): In my view the probative value of the 4 documents is so low as to render the documents of no more than peripheral significance. They lack importance in the proceedings. These are civil penalty proceedings in which the gravity of the impropriety is serious. These matters are to me of greater weight than the absence of any suggestion that the impropriety was deliberate or reckless. The remaining matters specified in s 138(3) do not apply to the present circumstances. In my view, the desirability of admitting the 4 documents does not outweigh the undesirability of admitting the evidence. In matters such as this, agreements by ASIC as to the manner in which it may exercise its discovery powers by direct access to digital information while at the same time maintaining the important privileges to which I have referred are highly significant. It is undesirable to admit evidence obtained in contravention of such arrangements. In Mokbel, the Victorian Court of Appeal considered whether the evidence would have been excluded under s 138 of the Evidence Act 2008 (Vic) in circumstances that included a barrister acting as a

registered informer to Victoria Police and breaching fundamental duties to her clients, namely the duty to act in the client’s best interests, the duty of loyalty, and the duty of care. The Court of Appeal held that the undesirability of admitting the evidence outweighed the desirability of admission, particularly in circumstances where to do so would “undermine fundamental principles of our criminal justice system and contaminate the due administration of justice” (at [726]): All of the considerations we have mentioned, and in particular the gravity of the impropriety (s 138(3)(d)) and the nature of the relevant offences (s 138(3)(c)), weigh necessarily in the balance in determining the admissibility of the evidence of Mr Bickley and Mr Cooper under s 138 of the Evidence Act. However, applying the principles to which we have referred, the undesirability of admitting evidence obtained in the egregious and improper way in which the evidence of Mr Bickley and Mr Cooper was obtained through the efforts of Victoria Police and Ms Gobbo, in pursuit of a common purpose targeting the applicant in a manner fundamentally at odds with Ms Gobbo’s professional obligations, clearly outweighs the desirability of admitting that evidence. To place material obtained in that way before a jury in a criminal trial would undermine fundamental principles of our criminal justice system and contaminate

the due administration of justice in this State. Application to the present case The basis on which it is alleged that the evidence in the present case was improperly obtained rested on three alleged breaches of the Solicitors’ Conduct Rules (rr 22.4, 25.1, and 33.1 of the Solicitors’ Conduct Rules). It was contended that the evidence was thus obtained improperly within the meaning of s 138 of the Evidence Act. Scopeview argued that Mr Rod’s evidence was inadmissible because the desirability of admitting the evidence did not outweigh the undesirability of its admission. It may be noted that r 2.3 of the Solicitors’ Conduct Rules provides that a “breach of these Rules is capable of constituting unsatisfactory professional conduct or professional misconduct and may give rise to disciplinary action by the relevant regulatory authority”. The relevant conduct rules are considered below. Rule 22.4 Rule 22.4 of the Solicitors’ Conduct Rules provides that: A solicitor must not confer or deal with any party represented by or to the knowledge of the solicitor indemnified by an insurer, unless the party and the insurer have signified willingness to that course. Two issues were raised as to whether there had been a breach of r 22.4 of the Solicitors’ Conduct Rules. First, whether Mr Doueihi was a “party” to the proceedings for the purposes of the rule, since Scopeview was the actual party

joined in the proceedings (Mr Doueihi being its sole director and controlling mind); and, second, whether the rule applies after the hearing is concluded and while judgment is reserved. Is Mr Doueihi a “party”? The term “party” is not separately defined in the UCPR; rather, “active party” is defined as meaning “a party who has an address for service in the proceedings…”. Under the Solicitors’ Conduct Rules, “party” is defined in the Glossary of Terms as including “each one of the persons or corporations who or which is jointly a party to any matter.” Scopeview, a corporation, is the named party to the proceedings. The question is whether Mr Doueihi, as the sole director of Scopeview, is captured within the meaning of “party” for the purpose of the Solicitors’ Conduct Rules. Scopeview refers in this context to the guidance provided by the former conduct rules in New South Wales, and regulatory guidance issued by the Law Institute of Victoria and the Queensland Law Society, which treat directors and senior officers of a corporate party as falling within the protection of the rule on the basis that a director or senior manager of a company being sued who is responsible for giving instructions about the litigation is within the class of persons that opposing solicitors may not contact directly (Law Institute Victoria Ethics Guideline, The Obvious Error of Another Communicating with

Another Solicitor’s Client, 2022; Queensland Law Society Guidance Note No 29, applying the “no contact rule” when the other party is an organisation). That guidance is as follows. Rule 18 of the Revised Professional Conduct and Practice Rules 1995 (NSW), being the former conduct rules of New South Wales, contained a specific rule in cases where the opposing party was a corporation, prohibiting a solicitor from conferring with, or interviewing “any person authorised to make admissions on behalf of the corporation, or to direct the conduct of the proceedings” unless the practitioner acting for the other person had agreed to the interview. Scopeview submits that the current rule (in relation to contact with a party represented by another legal practitioner), r 33.1 – see below – has been interpreted consistently with r 18 of the former conduct rules. The Law Institute of Victoria issued guidance to the profession in 2022 (Ethics Guidelines, “Communicating with Another Solicitor’s Client”) which states (at 2): Generally, it is not appropriate to speak directly to company personnel who normally have authority to make admissions on the company’s behalf, or to instruct in the conduct of the proceedings, where the company has in-house counsel involved in the matter or external legal representation. It is recommended that the solicitor avoid communicating with the company’s Chief

Executive Officer, Chief Financial Officer, Company Secretary, Directors, General Managers and Heads of Business units, whether or not they have such authority in the particular matter. [citations omitted] Similarly, the Queensland Law Society’s Guidance Statement “No.29 Applying the ‘no contact’ rule when the other party is an organisation” states (at [2.1]): Organisations, as legal entities, must of necessity act thought the agency of natural persons, such as their directors, employees or contractors. Guidance from other jurisdictions is to the effect that it is the authorised representative or decision-makers with respect to a given matter, as well as its directors or senior executive that should be regarded as representing the other party for the purpose of the ‘no contact’ rule and it is therefore to dealings with those individuals to which the Rule applies. [citations omitted] In Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3 (Sideris), the Occupational Division of the NSW Civil and Administrative Tribunal applied the Victorian and Queensland guidelines in holding that a solicitor who had corresponded directly with individuals occupying senior managerial positions at the Salvation Army, the named party to the proceedings before the Tribunal, had breached r 33 of the Solicitors’ Conduct Rules (set out below) on each occasion such correspondence

was sent. The Tribunal held (at [160]): When (as here) an organisation is the “client” for the purpose of r 33, and if there is an implicit requirement that the direct communications in question be made to persons within the organisation who form part of the senior management or who otherwise have relevant decision-making authority, we think that any such requirement is met in the present circumstances. The recipients of the emails to TSA include persons who are likely to have had the authority to represent TSA in relation to the dispute in question between Mr Sim and TSA. Indeed, the very reason that the Solicitor sought to communicate directly with TSA was to contract TSA representatives who may have authority to influence TSA’s position concerning Mrs Sim’s liability … Scopeview submits that Mr Doueihi, as its director, is the most senior manager and its controlling mind and thus the Court should adopt a similar construction of the “no contact” rule in rr 22.4 and 33.1 (referred to below) in finding that the term “party” included Mr Doueihi for the purpose of the rules. Further, Scopeview says that Mr Rod had conduct of the proceedings for Ms Brown from at least 9 December 2022 and was clearly aware prior to participating in the telephone conference with Mr Doueihi on 18 December 2025 that Scopeview was both represented by an insurer and by solicitors (Wotton Kearney). That

is established by Mr Rod’s own evidence summarised above. Scopeview submits that Mr Rod’s decision to proceed with the conference on 18 November 2025 to obtain evidence for use against Mr Doueihi was intentional and deliberate. (It was certainly an intentional conduct although Mr Rod has said in hindsight that it was thoughtless.) Having considered the authorities above, I accept Scopeview’s submissions as to the meaning of “party” for the purposes of the rules. I find that Mr Doueihi, as sole director and the controlling mind of Scopeview, falls within “party” to the proceeding within the meaning of r 22.4 (and r 33) of the Solicitors’ Conduct Rules. Is there a timing issue? During the reopening hearing, I raised the question whether there was a timing issue in applying the Solicitors’ Conduct Rules to this case since the hearing had come to an end and judgment had been reserved when Mr Rod spoke with Mr Doueihi (17/04/26; T 113.43). Counsel for Scopeview submitted that the rule still applied, arguing that “… on the text of the rule, it’s the representation that is the fulcrum. The fact that the hearing has come to an end doesn’t mean that Mr Doueihi and Scopeview are no longer represented by Wotton Kearney” (17/04/26; T 114.4-6). I have located no authority on the timing issue. However, proceedings are not finally disposed of until final orders are made. It would make no

sense for the rule not to apply during the interim period between the hearing and the making of final orders disposing of the proceedings. For example, it could hardly be thought proper for a solicitor, while judgment was reserved, to contact a party to the proceedings who was represented by another solicitor (for example, to seek to settle or compromise the proceedings at that stage) without the consent of that other solicitor. As to the representation of Scopeview by an insurer, Mr Rod was well aware of this – if not before, then certainly when (on his account of the conversation) Mr Doueihi complained that his solicitors were acting in the interests of their “real client”, the insurer. I consider that breach of r 22.4 of the Solicitors’ Conduct Rules is established. Rule 25.1 Rule 25 of the Solicitors’ Conduct Rules provides that: 25 Integrity of evidence—two witnesses together 25.1 A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time— 25.1.1 about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing, and 25.1.2 where such conferral could affect evidence to be given by any of those witnesses, unless the solicitor believes on reasonable grounds that special circumstances require such a conference. 25.2 A solicitor will not

have breached Rule 25.1 by conferring with, or condoning another solicitor conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise. Scopeview submits that the object of the prohibition on a solicitor conferring with more than one witness concurrently is to preserve the integrity of the evidence by ensuring that each witness gives testimony that is the product of the witness’ own independent knowledge and recollection, and uncontaminated by exposure to the evidence or version of events of other witnesses. That is clearly the case, as Dal Pont, the editor of the Solicitor’s Manual explains when addressing the “mischief” to which the proscription in r 25.1 is directed (namely, to reduce the risk that evidence could be contaminated through collusion). In Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2010] NSWCA 110 (Day v Perisher Blue), Sheller JA (McColl JA and Windeyer J agreeing) observed (at [30]): It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is

hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant’s witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer’s case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, “Not about facts about credibility”. Scopeview submits that Mr Rod breached this rule by proceeding to confer with Mr Doueihi in Mr Brown’s presence and, further, putting himself forward as a witness on the issue of the content of the conversation. I agree. In my opinion, Mr Rod breached r 22.5 of the Solicitors’ Conduct Rules by proceeding with a telephone conference with at least two potential lay witnesses (Mr Brown and Mr Doueihi) as to the content of the disputed conversation. I come in due course to the difficulty that causes in assessing the reopened

evidence. Rule 33.1 Rule 33 of the Solicitors’ Conduct Rules provides that: 33 Communication with another solicitor’s client 33.1 In representing a client, a solicitor shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another practitioner unless— 33.1.1 the other practitioner has previously consented, 33.1.2 the solicitor believes on reasonable grounds that— (i) the circumstances are so urgent as to require the solicitor to do so, and (ii) the communication would not be unfair to the opponent’s client, 33.1.3 the communication is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom, or 33.1.4 there is notice of the solicitor’s intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with the communication. Rule 33 is known as the “no contact rule” and “is a professional obligation which prohibits a solicitor from directly communicating with the client of an opposing solicitor, apart from certain exceptions” (Sideris at [73]). Rule 33’s “chief rationale … is to prevent a lawyer from circumventing the protection that legal representation provides to a client” (Sideris at [73], quoting Legal Services Commissioner v Poole [2019] QCAT 381 at [82]). In

Council of the Law Society of New South Wales v Sideris (2025) 117 NSWLR 596; [2025] NSWCA 159, Bell CJ, Kirk JA and Griffiths AJA traced the history of r 33, explaining (at [16]): The ”no contact” rule, as r 33 is sometimes known, has a long pedigree in the legal profession; direct contact by one party’s solicitor with the other party rather than through his, her or its solicitor, being described as ”extremely unprofessional” as long ago as 1847: Jones v Jones (1847) 5 N of Cas 134 at 140. In In re Margetson and Jones [1897] 2 Ch 314 at 318–19, Kekewich J described this professional rule as ”highly consonant with good sense and convenience, because otherwise solicitors cannot really do their duty, and it is impossible for business to be properly conducted unless the solicitors have the full confidence of their clients and are enabled to communicate the one with the other upon that footing”. In Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116, the Full Court of the Supreme Court of South Australia stated that: “[11] It is unethical and improper for a legal practitioner to communicate with an opposing party whom he or she knows to be represented by another legal practitioner in the matter without the latter’s consent. [12] The rationale for this principle includes protecting the opposing party against the solicitation of information by the opposing legal practitioner

contrary to that party’s interests, as well as preventing the undermining of the other party’s trust and confidence in his or her own legal practitioner.” (Footnotes omitted) I find that there was a clear breach of r 33.1 of the Solicitors’ Conduct Rules. I cannot see any basis on which the exception in 33.1.2 could here apply. There was no apparent urgency in the circumstances in which this conversation occurred (judgment had only shortly beforehand been reserved and there was no deadline within which a reopening application had to be made). Indeed, the delay that ensued with the making of the reopening application makes that clear. Nor can it be seriously suggested that the communication was not unfair to Scopeview. Consideration of objection Dal Pont explains (in the Solicitor’s Manual) each of the above rules as “a measure to prevent the relationship between lawyer and client being undermined” and that the rules “also have a rationale in preserving the integrity of the evidence” (at [23,005.15]). Mr Rod was cross-examined as to the time at which he first realised or became aware that there was a possibility that there might be an application to reopen the hearing. Mr Rod’s evidence (see above) was that he did not appreciate this, nor that there might be grounds for an application to reopen, until after the conversation with Mr Brown and Mr Doueihi on 18 November 2025 and,

in particular, “after consultation” that afternoon with Mr Luitingh. With respect, that is difficult to reconcile with Mr Rod’s recollection that Mr Doueihi used the word “rectify” a number of times in the conversation in relation to the evidence he had given at the hearing particularly as Mr Rod accepted that, as a solicitor, he was aware that for evidence to be “rectified” an application to reopen would be necessary. I accept that such an application would not necessarily be one by Mr Rod’s client – it might well have been an application brought by Scopeview if Mr Doueihi had raised that issue with his solicitors, or Mr Doueihi himself (although ordinarily one would not expect an application by a witness in this context) had Mr Doueihi obtained advice in relation to such an application from an independent solicitor. However, the point remains that the possibility of a reopening application should have occurred to a solicitor in Mr Rod’s position as soon as the conversation raised the possibility of rectification of evidence that had already been given in court. For that reason (and the breach of the earlier rules), Mr Rod’s initial reluctance to speak with Mr Doueihi was well-founded. Mr Rod should not have done so without the consent of Scopeview’s solicitor. In any event, the position is put beyond doubt when Mr Rod consulted with Mr Luitingh after the 18 November 2025

conversation but on the same afternoon. Although, for obvious reasons, there is no evidence as to the content of that conversation, Mr Rod’s evidence was that after this consultation he was aware that there might be grounds for an application to reopen so there must have been some discussion about that topic. Moreover, Mr Rod did more than just listen to Mr Doueihi (as he says, but Mr Doueihi disputes, Mr Doueihi asked him to do). Mr Rod went further. He took a file note of the conversation (good practice for any solicitor) and then proceeded to use it to draft a letter for Mr Doueihi to send back to him setting out what Mr Rod seems to have understood Mr Doueihi’s account to be and, in due course, to draft the first affidavits for use in the reopening application. It is difficult to see how that could be thought to have been appropriate in all of the circumstances. (And it has the insuperable difficulty, in my view, that this account is one which, on Mr Brown’s own evidence, was the product of numerous discussions or conversations between Mr Brown and Mr Doueihi, to which I will shortly come.) As noted earlier, Mr Luitingh informed me from the Bar table on 20 March 2026 that he had said “for some time” that Mr Rod could not continue to act for Ms Brown (presumably a reference to the reason given to Ms Button that he could not continue to act – because he was going to be a

witness in the proceedings) (20/03/26; T 1). It is not clear (since I, quite properly, do not know what transpired in the conversation between Mr Rod and Mr Luitingh that afternoon) whether Mr Luitingh gave that advice during the conversation in the afternoon on 18 November 2025. Giving Mr Rod the benefit of the doubt, I will proceed on the basis that Mr Luitingh did not (since otherwise it is difficult to see how Mr Rod could have considered it appropriate from that time for him to continue to act). Nevertheless, I consider that it was not appropriate for Mr Rod to draft the letter proposed to be sent by Mr Doueihi not only because this was doing so for another solicitor’s client but also since Mr Rod must by then have appreciated that he might himself have to give evidence on any reopening application. While I accept that Mr Rod may well have been prevailed upon to do so by Mr Brown (after all, it was Mr Brown who telephoned Mr Rod and who, on Mr Rod’s account, did not accept Mr Rod’s initial position that he could not speak to or advise Mr Doueihi; and who, on Mr Doueihi’s evidence, requested that the letter be drafted), Mr Rod should have stood his ground on that issue (and he accepts, in hindsight, that he should have done so). Does a breach of the conduct rules amount to improperly obtained evidence? Dal Pont observes (in the Solicitor’s Manual), on the duty of integrity,

that a breach of a lawyer’s duty to protect the integrity of evidence and court processes by ensuring court processes do not lend themselves to oppression or injustice (at [23,000]): … may impact upon the weight and admissibility of evidence; evidence the integrity of which is questionable may be inadmissible or be accorded less weight. It may also generate disciplinary consequences and/or personal costs orders where the breach of duty has caused a waste of court time. In Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 4) [2024] FedCFamC2G 554, a case concerning an application to exclude disputed documents said to have been improperly obtained by one of the respondents’ solicitors from the applicant’s website, the applicant contended, amongst other matters, that the evidence was improperly obtained by reference to the Solicitors’ Conduct Rules. Baird J dismissed the argument but did so on the basis of the solicitor’s reasonable assumption that the improperly accessed documents were publicly available documents (see at [42]). In the present case, I find that the impugned evidence has been “improperly obtained”, having regard to the minimum standards of acceptable conduct relevant to the profession. Relevantly, the Solicitors’ Conduct Rules govern Mr Rod’s conduct in dealing with witnesses and other parties. On the evidence before me, Mr Rod has breached rr 22.4, 25.1 and

33.1 by conferring with Mr Doueihi when Mr Rod had knowledge that Scopeview was represented by another practitioner and was indemnified by an insurer, and by doing so in the presence during that telephone conference with another lay witness about matters which were likely to be contentious to any reopening of the hearing. The evidence sought to be adduced in Mr Rod’s affidavit, as to the contents of that conversation between Mr Doueihi and Mr Brown was thus obtained in breach of the Solicitors’ Conduct Rules. As noted above, I have concluded that Mr Rod would not have obtained the evidence from Mr Doueihi had he not been Mr Brown’s legal practitioner who was on the telephone call which raised the so-called issues with the evidence given by Mr Doueihi at trial. Thus, the evidence was improperly obtained in light of the minimum professional standards relevant to legal practitioners. Matters to consider under s 138(3) As to the factors that must be considered under s 138(3) of the Evidence Act, Scopeview submitted that the evidence was of marginal importance to the proceedings. Scopeview argued that whether Mr Doueihi did or did not say to Mr Brown “leave it with me” on 2 March 2020 is of limited weight as to the question whether Ms Brown breached a duty owed to the plaintiff. Pausing here, the disputed evidence goes further than this; namely, as to whether Mr Doueihi said to Mr

Brown that he must not send the documents to the Raymans. As to its probative value, Scopeview accepted that this would be affected by the weight Mr Rod’s evidence is to be given following his cross-examination. As to the gravity of the impropriety, Scopeview submitted that Mr Rod participated in a process which seriously undermined the integrity of the evidence Ms Brown puts before the court. Scopeview submitted that Mr Rod’s conduct “is a serious impropriety” and strongly favoured the rejection of the evidence. Additionally, Scopeview submitted that Mr Rod’s conduct was deliberate or at least reckless, again favouring a rejection of the evidence. Finally, Scopeview argued that the evidence obtained by Mr Rod (set out in Mr Rod’s affidavits, his file note and draft letter) was not evidence which Ms Brown could lawfully obtain without Mr Rod breaching the no contact rule. (This last factor to my mind points the strongest in support of rejecting Mr Rod’s evidence in its entirety.) Conclusion as to Mr Rod’s evidence As noted above, I have concluded that the impugned evidence was improperly obtained. The question then, as the authorities above make clear, is whether the desirability of admitting the evidence outweighs the undesirability of its admission. As to the probative value of the evidence, ultimately in my opinion this is very low due to the manner in which it came about

that Mr Doueihi spoke to Mr Rod after so many discussions and conversations with Mr Brown. The chronology of events that emerges from the cross-examination of Mr Brown and the contemporaneous documents leads to the overwhelming inference that it was Mr Brown who was pressing Mr Doueihi to recast his evidence on the issue of the 2 March 2020 conversation – Mr Brown was “disgruntled” at the evidence Mr Doueihi had given; Mr Brown sent Mr Doueihi the transcript inviting him to indicate anything he wanted to change or amend; Mr Brown sought or obtained Mr Rod’s involvement in the matter (both in the telephone call and the subsequent drafting of the letter – which, extraordinarily, was sent to Mr Brown in draft); and Mr Brown offered to pay for the independent solicitor’s advice. In those circumstances, even before considering Mr Doueihi’s evidence on the issue, there is serious doubt as to the weight that could be placed on whatever Mr Doueihi subsequently said about his recollection of the 2 March 2020 conversation. Where there is the appearance of, or an inference may be drawn as to, collusion between witnesses in question, it is well recognised that this may diminish the weight or credit accorded to the evidence of those witnesses (see, for example, Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 at [90] and Seamez (Australia) Pty Ltd v McLaughlin [1999] NSWSC 9

(Seamez)). In Seamez, Sperling J explained the reasons for this (in circumstances where his Honour was satisfied, having regard to a high degree of similarity in content, detail, terminology and sequence, particularly in relation to conversations, between the affidavits of three witnesses, that their affidavits could not have come into existence without direct or indirect collaboration) (at [40]): … [A]cceptance of one of the three accounts of the events … means not only that the other two are not genuinely recollected, independent accounts. It also means that the authors of those other accounts have misstated the way in which their respective accounts came into existence, and seriously so. The credit of the others would then be worthless. In Day v Perisher Blue, the Court of Appeal (Sheller JA, with whom McColl JA and Windeyer J agreed) similarly pointed to the process by which evidence is taken as having been seriously undermined where witnesses had discussed their evidence with other witnesses. There, Sheller JA identified the risk in what had been done (a teleconference with witnesses discussing amongst themselves the evidence that they would give) as being (at [30]) that “evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true”. Here, there is evidence from Mr

Brown himself that there were numerous discussions (at least one being lengthy) between him and Mr Doueihi in relation to the proceedings and the evidence that had been given. There is an obvious risk that Mr Doueihi’s evidence about matters relevant to the disputed 2 March 2020 conversation has been coloured by those discussions and communications. As to the conversation on 18 November 2025, the most troubling aspect of the account given by Mr Doueihi in his affidavit on the reopening application (and supported at least in terms of Mr Sara’s general impression of what occurred) was the suggestion that Mr Rod was coaching a potential witness as to his evidence. So, for example, on Mr Doueihi’s account, Mr Rod suggested what Mr Doueihi could say in a letter to be drafted by Mr Rod and sent to Mr Brown (including that Mr Doueihi was struggling to sleep at night). In particular, the reference to Mr Doueihi struggling to sleep since he gave his evidence in Court is concerning – if Mr Rod was in fact suggesting to Mr Doueihi statements he could make in support of an application (whether by Mr Doueihi or Mr Brown) to “correct” his evidence, without Mr Doueihi having told him that this was the case, it is tantamount to coaching a witness. I hasten to add that Mr Rod strongly rejects that he suggested to Mr Doueihi that he say this and I make no adverse finding against Mr Rod on this

issue. There does not appear to be a reference to Mr Doueihi having trouble sleeping in Mr Brown’s accounts of the conversation on 18 November 2025 (or any earlier conversation about Mr Doueihi’s evidence); nor in Mr Brown’s (“on the same page”) email. However, there is reference to Mr Doueihi being “unable to sleep” in Mr Rod’s handwritten note (and subsequent undated typewritten note) of the 18 November conversation. The suggestion that Mr Doueihi (who did not have the transcript of his evidence until it was provided to him by Mr Brown) had been struggling to sleep at night because of a concern that his evidence at court may not have been complete or as forthright or clear as it could have been, or that it may have been misleading, is difficult to accept. Mr Doueihi in cross-examination referred to wanting to have “peace of mind” and to clarifying his evidence with the independent solicitor; but he was also insistent that he thought his evidence was clear and he was not upset about it. The evidence as to wanting “peace of mind” is readily explicable to my mind by a concern on Mr Doueihi’s part, arising from Mr Brown’s dissatisfaction (or disgruntlement) expressed in his conversations with Mr Doueihi, that Mr Doueihi had said something that upset Mr Brown (and this is consistent with Mr Doueihi’s account, albeit limited, as to what the independent lawyer had said about

this). The person who (on his own account of his conversation with Mr Doueihi) was disgruntled about Mr Doueihi’s evidence was Mr Brown (see [37](b) of Mr Brown’s 19 March 2026 affidavit). It is difficult to avoid the conclusion that what happened after the hearing (commencing during the two hour telephone conversation on 5 November 2025 about which neither participant gives much content – and to which Mr Brown originally did not even refer) is that: Mr Brown was concerned as to the impression I would form as to the conflict in the evidence on the neighbour notification issue; Mr Doueihi (who said Mr Brown was a good client with whom he had become friends) was concerned as to Mr Brown’s well-being and wanted to reassure him; and there were then various conversations in which Mr Brown pressed for Mr Doueihi to change (or “rectify”) his evidence to address a number of matters that Mr Brown (and, I emphasise, Mr Brown not Mr Doueihi) considered of importance to the case or which he was concerned may have undermined his own credibility. That is supported by the fact that Mr Brown: sent Mr Doueihi the transcript on 5 November 2020 (he said on the basis of a request which Mr Doueihi denies) inviting Mr Doueihi to consider what he thought he might wish to change or amend; prepared an email setting out Mr Brown’s account of what Mr Doueihi had said to see if they were “on the same

page”; pressed for Mr Rod to listen to what Mr Doueihi had to say on 18 November 2025; was involved in or forwarding (and seemingly amending or updating) the draft letter prepared by Mr Rod; and then offered to pay the fees of the independent lawyer whose name was suggested by Mr Brown or Ms Button for giving advice to Mr Doueihi. In any event, it is not necessary for me to form a concluded view on this. Suffice it to note that, on Mr Brown’s own account, there were numerous calls between him and Mr Doueihi about the hearing (including as to the evidence Mr Doueihi gave at the hearing) which means that the accounts given by both Mr Brown and Mr Doueihi on that issue are seriously devalued (for the reasons given, and having regard to the authorities referred to, above). The whole exercise of reopening the hearing (or at least the most important issue in Mr Brown’s eyes) was to address the aspersions cast on his truthfulness during his cross-examination. The unfortunate result of the manner in which the evidence on reopening was obtained means that, far from vindicating or restoring Mr Brown’s credibility as a witness, it casts doubt as to the genuineness of the evidence that was ultimately relied on in the reopened hearing. As I make clear in due course, I make no finding adverse to Mr Brown’s truthfulness but the above will be relevant when considering costs of the reopening

application and the reopened hearing to the extent that it is necessary to address those separately or differently from the costs of the proceedings as a whole. Moreover, the probative value of the evidence must be evaluated in circumstances where it went to an issue of credibility, not directly to a substantive issue in the proceedings. Its importance in the proceedings was not as central as Mr Luitingh on numerous occasions insisted. The evidence as it rested at the conclusion of the hearing on 31 October 2025 was that Mr Doueihi accepted that it was possible that he had said “leave it with me” in relation to notification to the neighbours (as it was an expression he commonly used) although he did not recall the 2 March 2020 conversation and did not recall saying it in such a conversation. As I understood it, Mr Doueihi accepted that if he had said “leave it with me”, he would have meant it, in the sense that Mr Brown could rely on that but, again, he did not recall saying that Mr Brown must not send it to the Raymans and could not tell why he would say that. Further, if Mr Doueihi’s account on reopening were not to be believed this would not have compelled acceptance of Mr Brown’s account (as Mr Luitingh seemed to suggest) – it might simply mean that I would be unable comfortably to be persuaded as to what in fact was said during the 2 March 2020 conversation that Mr Doueihi

accepts occurred; nor would it have compelled the wholesale rejection of Mr Doueihi’s evidence (as Mr Luitingh urged). As to the gravity of the impropriety, this is not a situation of illegality (as was the case in Kadir) nor would I describe the breach of the Solicitors’ Conduct Rules which here occurred as being of the same character as, for example, the breach of fundamental duties by the barrister deplored in Mokbel. As to whether evidence of this kind could have been obtained in another (proper) way, the answer to that must be yes – as Mr Rod appears to have understood when advising Mr Doueihi to seek independent advice. (Of course, whether it would have been so obtained is another question, since Mr Doueihi ultimately gave evidence contrary to that which was the subject of Mr Rod’s account. In any event, as I have already noted, the impugned evidence here sought to be relied upon would clearly not have been obtained but for the breaches of the Solicitors’ Conduct Rules.) Balancing the above, while I would not describe the breaches of the Solicitors’ Conduct Rules as a minor contravention and I certainly do not condone such conduct, I accept Mr Rod’s evidence that it was unintentional and thoughtless. And, while ultimately its probative value turned out in my opinion to be very low, that emerged only when the evidence was tested. The disputed evidence did go to the

integrity of the evidence that had been given earlier at the hearing. I am thus persuaded (albeit with some hesitation) that the desirability of admitting the evidence outweighs the undesirability of its admission having regard to the manner in which it was obtained and I rule accordingly. Credit findings It is convenient at this stage, before setting out the factual findings I will make, to address the issue of credit with respect to the lay witnesses. As will already be apparent, that issue loomed large as to Mr Brown and Mr Doueihi. No issue was taken by the parties as to the credibility of the other lay witnesses, with the exception of the submission by Ms Brown that the evidence of Ms Rayman in relation to the basement (in particular, that she hardly went into the storeroom) suggested a lack of candour; Ms Brown pointing to the fact that Ms Rayman had lived in the house for ten years and that a fridge and freezer were located there. Ms Brown was also critical of the evidence of Mr Weinberg, who visited the house frequently, that he hardly went into the subfloor basement; and of Mr Rayman, that he went into the subfloor basement from which he ran his business at least several times a week but thought that the subfloor basement was “OK”. In that regard, Ms Brown submitted that the denial by Ms Rayman and her witnesses of the “obvious substandard condition of the basement”

ought be viewed as a “strategic denial” to benefit them (referring to the evidence of the expert, Mr Manning, that the condition of the sub-basement was poor and his opinion that it would appear so even to a layperson – see in due course). I deal briefly with the assessment of the witnesses other than Mr Brown and Mr Doueihi as follows. ● Ms Rayman As to Ms Rayman, it is evident that she left matters to do with the building activities on the Brown Land to her husband and father to deal with (as she appears to have done in relation to the earlier renovations and maintenance of her own home). I accept that Ms Rayman found the time of the sheet piling works and resulting damage to her house a traumatic time. I do not accept that her evidence as to the basement area reflects adversely on her credit. The fact that a fridge and freezer were located in the basement does not lead to an inference that she must (contrary to her evidence) have regularly visited that area, at least in the absence of evidence that there was no other fridge or freezer in the house. The basement fridge/freezer may well have been additional to other such items located elsewhere in the house which were used on a daily basis. Nor, insofar as it was suggested in her cross-examination, do I accept that the initial damages claim amounted to some form of ambit claim that could not have been genuinely made at the

time. I have no reason to consider Ms Rayman other than a genuine and truthful witness. ● Mr Rayman As to Mr Rayman, he gave his evidence in a straightforward fashion. I have no reason to doubt his credit. In that regard, his evidence as to his observation of the condition of the basement of his house does not cause me to doubt his credit. I cannot place weight on Mr Manning’s observation that the poor condition (from a building perspective) of the basement would have been obvious to a layperson in circumstances where I do not know on what that observation was based. It certainly was not immediately apparent to me (as a non-builder/engineer) from the photographs of the basement that the positioning of the joists was sub-standard from a building perspective. ● Mr Weinberg As to Mr Weinberg, he was direct and forthright in his answers in cross-examination. I have no reason to doubt his credit. It is impossible to determine whether Ms Brown’s account of the conversation with him (in which she says that he told her if they went ahead with the excavation works she would be buying his daughter a new house) was correct in the absence of any objective contemporaneous evidence. The fact that Mr Weinberg did not put on any affidavit in reply to dispute the account of this conversation adds little to the assessment of whether he said what Ms Brown said he did, particularly as it does not

seem that any affidavits in reply regarding that topic were filed for Ms Brown in the proceedings. But even if the conversation did occur in words to the effect that Ms Brown deposes it did, this does not to my mind adversely affect Mr Weinberg’s credit on any relevant issue. Nor does Mr Weinberg’s evidence as to the basement cause me to doubt his candour. I see no benefit that Mr Weinberg would gain by such evidence so as to warrant the accusation that this was a “strategic denial”. ● Ms Brown As to Ms Brown, as with Ms Rayman it is clear that she left matters to do with the re-development of the Brown Land to her husband, in whom she admittedly reposed trust and confidence. I have no reason to doubt her credit. However, her evidence was of little or no assistance as to the matters in issue in the case. ● Mr Sara Mr Sara was also a lay witness of course, though only when the hearing was reopened. I accept that Mr Sara’s evidence was vague and general in its terms (and that little can be gained from evidence that “something” was said “about something”). Mr Sara was unable to recall exactly what was said or to put into direct speech words the effect of what was said at the critical conversation but, to his credit, he made that clear in his affidavit. Mr Luitingh criticised Mr Sara’s evidence as being “reconstruction” rather than memory or recollection. To some extent there is

force to that criticism. However, where Mr Sara deposed to the contents of the conversation as being that something like that was said, this is not much different (if at all) from the witnesses who gave evidence of conversations using the well-known (but by some judges deplored) formula of “words to the following effect”. I do not here propose to enter into the judicial fray as to the legitimacy of such a method of drafting affidavits save to note that I do not accept that the course here adopted was either unprofessional or unethical. What Mr Sara (as did those who deposed to conversations taking place in “words to the following effect”) was making clear was that he could not recall the precise words that were said or the whole of the conversation. Mr Sara, in particular, was conveying his general impression of the topic or topics of conversation and what was being conveyed in the conversation (not reconstructing, in the sense of making up, the conversation). The weight which can be attached to that is another matter. I accept that little weight can be attached to much of Mr Sara’s evidence, which was broadly his impression or understanding of what had occurred, without being able to test how that impression or understanding had been formed (by reference to what had been said or done to give rise to that impression or understanding). Where Mr Sara deposed that he did not hear

or recall things being said, that may have some weight but given the limited recollection he had of the meeting I would ultimately place little weight on this. I accept that in giving his evidence Mr Sara was genuinely trying to assist the Court and I make no adverse credit findings (nor were any sought). However, beyond his general impression as to the communications during the meeting (which is consistent with Mr Doueihi’s account but which cannot meaningfully be tested), Mr Sara’s evidence can take the matter no further. I reject, however, the proposition put in submissions for Ms Brown that Mr Sara had been “brought along” by Scopeview “to support [Mr] Doueihi but under extremely dubious circumstances” (17/04/26; T 123.8-9). As a person present at the critical 18 November 2020 conversation, one can readily surmise that Scopeview would have been criticised had evidence not been obtained from Mr Sara as to his recollection of the meeting. Contentious witnesses This brings me to the two lay witnesses in respect of whom there was a real contest as to their credibility, Mr Brown and Mr Doueihi. ● Mr Brown As to Mr Brown, as I have already observed when summarising his evidence at the first hearing, he had a tendency in the course of cross-examination to say things seemingly off the top of his head (such as his speculation as to the reason that he attributed to Mr Doueihi for

telling him not to send the relevant reports to the Raymans) or without careful consideration (such as his assertion on two separate occasions that he did not know who Martens was, when he accepted that he must have known of Martens by reference to communications to which he was then taken); and a tendency to make broad assertions (such as his assertion that he did not understand, and still did not understand, documents such as the Martens Report, when not only were parts of that report readily comprehensible to a lay reader, but he also was clearly aware of the recommendation not to use sheet piles since he made the point to Mr Doueihi and Mr Quinton that while it was not recommended it was not “disallowed”). Mr Brown also had a tendency to seek to argue the case (of which I have given examples already). On occasion, he was somewhat defensive (“if you want to pin me as guilty so be it” – see 28/10/25; T 167; “if I’m guilty of it, I’m guilty of it” – see 28/10/25; T 173); and Mr Brown was clearly affronted when it was suggested he was giving untruthful evidence in relation to the neighbour notification issue (as became even more apparent at the reopened hearing). Those aspects of his evidence cast doubt not so much on Mr Brown’s credit as a witness but on his reliability as a witness. Where the tendency to say things off the top of his head and without careful thought became

most evident was in the cross-examination of Mr Brown on the reopened hearing as to what parts of his affidavit evidence referred to what was said in the 5 November 2025 conversation as opposed to the 13 November 2025 conversation. Mr Brown’s evidence on this was contradictory and casts doubt as to the reliability of his recollection of the events that occurred following the hearing at least in the period from 5 to 13 November 2025. Also problematic is the fact that Mr Brown’s account in his first reopening affidavit left out important aspects of the events post-hearing: his first account did not refer to him having actually spoken to Mr Doueihi (at some length) on 5 November 2025 (his first account being simply that he had not taken two calls from Mr Doueihi on that day), nor did it refer to Mr Brown having spoken (for just over 20 minutes to Mr Rod on that day) or to Mr Brown having sent to Mr Doueihi the transcript of the latter’s evidence at the trial (with the invitation to consider what he might wish to correct or amend). The use of the word “eventually” when referring to the 13 November 2025 conversation in his first reopening affidavit (repeated in Mr Rod’s letter to the court dated 12 December 2025) conveys (intentionally or otherwise) that there was a gap (of more than mere minutes) between the missed calls on 5 November 2025 and when he spoke to Mr Doueihi, which was

not the case. It was not until the second account of events was given by Mr Brown (after Mr Doueihi’s affidavit) that the 5 November 2025 conversation was acknowledged by Mr Brown. Further, Mr Brown’s recollection of the numerous conversations that he says he had with Mr Doueihi over that period is not set out in any detail in his affidavits. The criticism made by Mr Luitingh of Mr Doueihi’s evidence (that he did not recall very much) can equally be levelled at Mr Brown. On his own account of events, there were numerous calls between him and Mr Doueihi over the period from late November to December 2025. Much must have been said that has not been recounted by either of the participants to those conversations. The above makes it difficult for me to place reliance on the account given by Mr Brown of his conversations with Mr Doueihi. It is not necessary to make any findings of dishonesty or untruthfulness. Rather, Mr Brown’s evidence, and the way it emerged, piecemeal, on the reopening of the hearing bears all the hallmarks of a witness who has rehearsed in his or her mind the course of events so many times that he or she is convinced of the accuracy of his or her recollection of what was said and then presents that as the fact. In that regard, the caution as to the fallibility of human memory is apt (see Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) at 319). ● Mr

Doueihi As to Mr Doueihi, his evidence was the subject of strident criticism by Mr Luitingh – that it was evasive and not candid (17/04/26; T 123) – who submitted at one stage that none of his evidence could be accepted. It was suggested that Mr Doueihi’s evidence was “to deny any aspect of liability that he may have attracted” and, as adverted to above, he was criticised for having “after a considerable period of time where there are many conversations” giving evidence of “nothing other than he can’t remember” (17/04/26; T 123). (That last criticism is somewhat selective in the sense that Mr Brown himself gave very little evidence of the numerous conversations he said he had with Mr Doueihi, including the approximately two and a half hour conversation on 5 November 2025 that was not referred to in his first reopening affidavit.) Ms Brown submits that Mr Doueihi was a poor communicator and points out that, save for his communications with the subcontractors, there is little or no correspondence with Mr Brown, contrary to his assertion that he communicated with Mr Brown through emails. (On my review of the material before the Court, there were around a dozen emails from Mr Doueihi to Mr Brown in evidence.) Insofar as Mr Doueihi stated that in his view it was the PCA that had to give notice (29/10/25; T 235), Ms Brown says that he was unable to demonstrate that he had at any time

advised the PCA about the status of the build. Ms Brown argues that his normal modus operandi was to ignore his obligations and focus on the core building activities under the contract and under the law to the exclusion of his administrative obligations. In support of the submission that Mr Doueihi lacked candour, Ms Brown gave as an example that Mr Doueihi “concealed” from Mr Brown the fact that he always intended to use sheet piling and failed to explain to him the consequences of a shoring system that Ms Brown appears to accept was, according to the experts, far riskier. Ms Brown’s submissions seem to go further insofar as she says that there is some force in Ms Rayman’s suggestion that there was a deliberate attempt to conceal when and exactly where the sheet piling activities were going to take place but Ms Brown attributes this suggestion of concealment to Scopeview (Mr Doueihi). My impression of Mr Doueihi in the witness box was that he was not a sophisticated witness; that he was careful (indeed anxious at times) to ensure that he gave truthful evidence; and that where he did not recall saying things he said so. Mr Doueihi readily accepted that it was possible that he said certain things that were put to him (such as “leave it with me”) but seemed to me to be genuinely bemused by the proposition that he would have told Mr Brown not to send the reports/plans to the

Raymans. And Mr Doueihi also seemed to me quite genuine in his explanation as to why he did not respond to either Mr Brown’s email (sent, Mr Brown says, to ensure they were “on the same page”) or Mr Rod’s draft letter. His account that he was uncomfortable with what was being proposed was credible and rang true. Mr Brown was Mr Doueihi’s client and Mr Doueihi regarded him as having become a good friend. On Mr Doueihi’s account, which seems plausible, he was concerned that Mr Brown was upset at the way the hearing had gone (which Mr Brown confirms when he recounts a conversation in which he said he was disgruntled at Mr Doueihi’s evidence) and Mr Doueihi wanted to reassure him. Mr Doueihi cannot fairly be said to have denied everything that might attract liability. He readily accepted, for example, that he had made the decision to use sheet piling, for example, and he accepted that he was required to comply with the conditions in the Development Consent (though he expected the PCA to do so or assumed that compliance was met by the issuance of the construction certificate). I accept that the generality of some of Mr Doueihi’s evidence means that it may carry less weight but I do not accept that it should be rejected as dishonest or evasive (as Ms Brown contends). Where the veracity of part of a witness’ evidence is not accepted (or is in doubt), a careful assessment of the rest

of that evidence is required in order to determine its honesty and reliability (see Malco Engineering Pty Limited v Ferreira & Ors (1994) 10 NSWCCR 117 – that being a case where a finding of perjury had been made on one part of the evidence), but this does not mean that the balance of that witness’ testimony can never be accepted without corroboration (Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [35]). ● Mr Rod Finally, before turning to the factual findings, I should record my assessment of Mr Rod as a witness. I have no doubt that Mr Rod was genuine and honest in his evidence at the reopened hearing. Mr Rod appeared to be well conscious of his duty as an officer of the Court and as a witness to give truthful evidence. He was measured in his responses and made appropriate concessions (such as his evidence that, in hindsight, he would have acted differently). I make no adverse credit finding against him (though, as I have explained above, I find that he did breach the Solicitors’ Conduct Rules in the circumstances in which he conferred with Mr Doueihi on 18 November 2025 and then proceeded to prepare the draft letter that Mr Brown sent to Mr Doueihi and to act for Ms Brown, including preparation of the initial affidavits in support, on the reopening application up until shortly before the hearing on 20 March 2020). Factual Findings There were a

number of factual findings for which one or other of the parties contended about which there was or could be little dispute. So, for example, that on 21 January 2020 (cf the Agreed Facts which place this at 20 January 2020), Ms Brown entered into the Contract with Scopeview, under which, pursuant to cl 40.1, Scopeview undertook to comply with the conditions of the Development Consent (which Scopeview accepts) and that, under cl 13.1 of the Contract, Ms Brown surrendered complete control and possession of the property to Scopeview as of 21 January 2020 (which Ms Brown points out is a pleaded fact by Ms Rayman). (Of course, the significance of the last of those was a matter for debate.) Further, the parties had agreed various facts prior to the hearing (some of which I have set out in the course of the chronology of events) and I do not here repeat them. Where I have set matters out in the chronology of events without indicating there (or in what follows) that there is a dispute as to those facts, then I need not here repeat those matters. Rather, I address the disputed factual matters. In so doing, I note that, in order to determine on the balance of probabilities what probably occurred where there is a factual dispute, I place weight on the objective factual material (the contemporaneous documents) and the logic of events by reference thereto, bearing in mind the well-known

caution expressed in Watson v Foxman as to the fallibility of memory and the well-recognised caution about placing emphasis on demeanour. ● Mr Brown’s conduct is to be imputed to Ms Brown Ms Rayman contended for a finding that Mr Brown’s conduct in relation to the development of the Brown Land be imputed to Ms Brown. That finding is well supported by the Browns’ evidence and the contemporaneous documents; and I so find. ● Was Mr Brown the “driving force” behind the project? Ms Brown says that the assertion by Ms Rayman that Mr Brown was the “driver” of the project, and was therefore material to the construction activities on the Brown Land, is baseless. In relation to the communication between Mr Brown and Mr Quinton (of MASQ) regarding the request to change Mr Zimmerman’s drawings, Ms Brown notes that Mr Doueihi conceded that those were his instructions and that it was his decision to construct using sheet piles. As to the latter, I note this below; as to the former, Mr Doueihi’s evidence was somewhat qualified – at first he said “possibly, yes” but then he accepted as correct a proposition that he passed the information (that he wanted Mr Zimmerman to remove contiguous piling from his drawings) to Mr Brown to ask him to ensure that the drawing complied with what he intended to do (see 29/10/25; T 238). In relation to the letter (actually an email) that Ms Brown identifies as

being at the centre of the controversy in the credibility dispute between Mr Doueihi and Mr Brown, where Mr Brown points out that there is a duty under Conditions 13 and 14 to notify the neighbours, Ms Brown submits that a homeowner who reads the Development Consent and asks the builder whether or not it is being complied with is not “directing” the builder. Emphasis is placed on the final sentence in the email in which Mr Brown asks “[c]an I send these documents to him”. Ms Brown says that this is a clear indication that Mr Brown is seeking a direction from the person who has possession and control of the site. As I have already indicated (see [130]), I do not accept that in this email Mr Brown is seeking approval from Scopeview as the entity in control and possession of the site. The query is framed by reference to whether approval from the PCA is necessary. Focusing on the dispute between Scopeview and Ms Rayman, Ms Brown submits that Ms Rayman’s attempt to connect Mr Brown to the engineering and building activities of Scopeview does not succeed as it became clear during the course of cross-examination that not only was Mr Doueihi in complete control of the marshalling of subcontractors on the site but that he did so to the express exclusion of Mr Brown. It is submitted that this can be seen by the many emails exchanged between the subcontractors into which Ms Rayman is not

copied. Ms Brown points out that Mr Brown visited the site once or perhaps twice a week. Ms Brown submits that Mr Brown could not possibly have known what activities were being carried on and, on that account, would not be in a position, practically and physically, to give notice to the neighbours, unless he was specifically told by Scopeview to do so. (That submission fails to take into account that it was perfectly practical for Mr Brown of his own volition to have obtained the documents from Mr Doueihi in order to comply with the notification requirements without any direction to do so.) Ms Brown says that, even when Mr Brown was provided with the 2019 Dilapidation Report, he asked Mr Doueihi if it was “OK to send” (see [183]). Ms Brown submits that this clearly suggests that Mr Brown looked to Mr Doueihi to provide him with guidance and instruction on what functions to perform (and that this is counterintuitive to the submission made on behalf of Ms Rayman that Mr Brown was the “driving force”). I consider, however, that Mr Brown’s query in this regard seems most likely to be due to his recognition that the document was inconsistent with the type of piling system to be used. Ms Brown submits that it was quite apparent that Mr Brown was unsure of what he was to do and looked to Mr Doueihi to give him advice because, under cl 13.1 of the Contract, Scopeview was in exclusive

possession and control of the site. Further, Ms Brown argues that this was apparent from Mr Brown’s answers under cross-examination when it was put to him that he was deliberately downplaying his knowledge of the contract regime (see the extracts from his cross-examination above). Ms Brown characterises Mr Brown as being “at the mercy of his ignorance” and says that he was naively persuaded to put forward the proposition that they should proceed with sheet piling when in fact that decision was driven by Mr Doueihi, and that, by that conduct, Mr Brown was made vulnerable. I have difficulty accepting that Mr Brown was naively persuaded to put forward any such proposition. That is inconsistent with Mr Brown’s involvement in the project (evidenced by the contemporaneous emails) and his conduct after the hearing in pressing Mr Doueihi as to him changing or rectifying his evidence to accord with Mr Brown’s recollection of events. My conclusion is that, as between Mr and Ms Brown, Mr Brown was clearly the driving force behind the project. That is hardly a surprising conclusion. It emerges from Ms Brown’s own evidence as to the trust and confidence she reposed in him. Mr Brown was the person communicating with Mr Doueihi in relation to the project (and with others, such as his emails to Mr Quinton). Further, Mr Brown was (and represented himself to Mr Quinton as) the person who

endorsed the decision of Mr Doueihi to use the sheet piling. In that sense it is clearly correct to say that Mr Brown was the driving force behind the project. However, by this I do not mean that Mr Brown was the “driver” or driving force behind the construction and excavation activities on the Brown Land per se. There is no suggestion that Mr Brown was consulted, for example, as to how or when the installation of sheet piles was to occur or the particular type of sheet piles that were to be used or how the vibration limits were to be set or monitored; nor as to where the sheet pile walls were to be located. Mr Brown was not involved in the day-to-day direction or supervision of sub-contractors on the site. Thus, I accept that Mr Brown was not involved in the operational aspects of the project. That said, I do not understand this to be what is here contended by Ms Rayman. Where the dispute as to Mr Brown being the “driver” of the project comes into play is in the context of the (accepted) non-compliance with the relevant conditions of the Modified Development Consent in relation to the provision of the respective reports/plans to Ms Rayman and notification of commencement of the excavation works. It cannot be disputed that (in a practical sense) Mr Brown assumed responsibility for notifying Mr Stockley, since that is what he did (albeit after first asking Mr Doueihi if he could

send the document(s) to him or whether he needed to check first with the PCA). And it was Mr Brown who eventually provided notification to the Raymans. Mr Brown did not query with Mr Doueihi whether the latter had done so. Nor did he complain as to why Mr Doueihi had not done so when taking it upon himself to send the documents to the Raymans on 24 April 2020. In any event, I deal with the issue as to where the obligation to notify lay (and whether it was delegated to Mr Doueihi in due course). Therefore, as to this finding, I find that Mr Brown was indeed the driving force, in the sense described above, behind the project (but not in an operational construction sense). ● Mr Brown’s understanding of the Martens Report Ms Rayman contends that Mr Brown’s evidence that the Martens Report was “too complicated for [him] to understand” (28/10/25; T 151.47), that the report “scared” him (28/10/25; T 161.11), that “to this day” he did not understand it (28/10/25; T 161.11) and that its terms are “illegible stuff” and “totally meaningless” to him (28/10/25; T 161.7), should be rejected. In that regard, Ms Rayman notes that Mr Brown resiled from that evidence after being presented with objective evidence demonstrating that he did, in fact, understand its terms and had communicated this understanding in writing to Mr Quinton of MASQ on 9 April 2020 (see 28/10/25; T 163, where he said “I

obviously do understand”). Further, Ms Rayman points out (and I agree – as indicated earlier) that the recommendation in the Martens Report (see at [53] above) against the use of driven or sheet piles due to the risk posed by vibrations is conveyed in plain language. Ms Rayman further argues that the content of Mr Brown’s affidavit and the language and content of the written communications from him in evidence demonstrate a level of sophistication sufficient to understand the Martens Report. I agree. (Ms Rayman also argues that, if it was the case that the Martens Report was meaningless to Mr Brown, this ought to have been raised in Mr Brown’s evidence-in-chief. It is not necessary to go this far. I draw no adverse inference from the fact that this was only raised in Mr Brown’s evidence in cross-examination.) I do not accept Mr Brown’s evidence that the Martens Report was too complicated for him to understand. As Ms Rayman has pointed out, Mr Brown resiled from such a proposition in the course of his cross-examination (and his evidence as to it being illegible, meaningless and the like seemed to me at the time to be a generalised overstatement consistent with a tendency to make such statements). While I have no difficulty accepting that Mr Brown, not being a builder or a structural or geotechnical engineer, may have had no understanding at the time he received the Martens

Report as to the difference between sheet piling and contiguous piling (and in oral submissions Ms Rayman accepted this (see 31/10/25; T 392)), what any reasonably literate lay person must have understood from a review of the Martens Report was that sheet piling (or more precisely the use of driven and sheet piles) was not recommended due to the risk of harm to adjoining properties of adverse vibration consequences of its use. Moreover, Mr Brown clearly understood, at least by the time that he was adamantly stating to Mr Quinton (in his 9 April 2020 email) that he wanted to use the sheet piling, not only that there was a difference between the two types of shoring systems but also that the use of sheet piling was not recommended (though he asserted in the email that it was not “disallowed”). Indeed, the fact that Mr Brown was asserting that the use of sheet piling was not “disallowed” by the Martens Report makes clear that Mr Brown was quite capable of reading and understanding what the report said (and seemingly relying on that to encourage Mr Quinton in relation to the request Mr Brown was asking him to make of Mr Zimmerman). As I have explained when addressing the credibility and reliability of Mr Brown’s evidence, Mr Brown had a tendency at times to advocate his wife’s case and to make broad or generalised assertions seemingly off the top of his head to advance that case. I

regard his protestation that the Martens Report was unintelligible and meaningless to him as most likely falling within that category. I do not need to go further and make any finding that Mr Brown deliberately downplayed his level of sophistication. Suffice it to find, as I do, that at least by 9 April 2020 Mr Brown well knew that the Martens Report did not recommend sheet piling and, by then or shortly thereafter, that there needed to be a change to the shoring plans and drawings to reflect that. ● Mr Brown read and understood the Development Consent Ms Rayman contends for a finding that Mr Brown read the Development Consent that was issued on 29 February 2019 at or around that time. Ms Rayman notes that Mr Brown’s evidence was that he “most probably did” and she argues that Mr Brown had spent a fair amount of money and time to obtain the consent (which Mr Brown appeared to accept (see 28/10/25; T 152.45)) and that the development generally was an important matter to him (which Mr Brown also seemed to accept). On the basis of Mr Brown’s own evidence and given the importance of the Development Consent to the proposed re-development of the Brown Land, I find on the balance of probabilities that Mr Brown did read the Development Consent at around the time it was received. ● Mr Brown read and understood the Modified Development Consent and, in particular, Conditions 13 and 14

(and the importance thereof) Ms Rayman next seeks a finding that Mr Brown read and understood Conditions 13 and 14 of the Modified Development Consent (which was received by Mr Brown on or around 25 September 2019) and that Mr Brown understood that: first, a construction certificate was needed before works could start; second, that certain conditions needed to be satisfied prior to the issuance of a construction certificate; third, that his role extended (in part) to ensuring compliance with some of the conditions in the Modified Development Consent; and, fourth, that complying with the notice requirements to neighbours (Conditions 13 and 14) was an important issue. Mr Brown’s own evidence was that he “most probably” read the Modified Development Consent around the time it was issued (28/10/25; T 152). Mr Brown admitted that he read and understood Conditions 13 and 14 (28/10/25; T 156). Indeed, he extracted and sent them to Mr Doueihi on 1 March 2020. And, as noted in the chronology I have set out above, Ms Brown herself appears to have read at least part of Condition 14 as she took a photograph on her phone of that condition and sent it to the foreman (Jason) in February 2020 (before any request had been made by Mr Stockley on 1 March 2020 as to the provision of the relevant reports). Mr Brown accepted that he understood what a construction certificate was and that it was

needed before works could start (28/10/25; 154.25-30). Further, Mr Brown must have understood that certain conditions of the Modified Development Consent needed to be satisfied prior to the issuance of a construction certificate because he (as was Ms Brown) was asked to sign a declaration in relation thereto. Mr Brown also accepted that his role extended at least to ensuring compliance with the owner’s contribution levies requirement in the Modified Development Consent, since this was the context in which he made the request of Mr Doueihi on 30 January 2020 for the exclusion of demolition costs and provisional sums (to reduce the amount payable by way of owner’s contribution levies) (see [92] above). I therefore find that Mr Brown read and understood Conditions 13 and 14 of the Modified Development Consent and that Mr Brown understood the first three of the four particular matters set out at [729] above as to his understanding. As to the last of the four particular matters (that Mr Brown understood compliance with the notice requirements to neighbours to be an important issue), that conclusion may also readily be drawn from the fact that Mr Brown personally forwarded the relevant documents to Mr Stockley (after checking that it was “OK” to do so with Mr Doueihi) and he also, eventually, personally sent those documents to Mr Rayman and Mr Weinberg. Furthermore, by mid-November

2020, Mr Brown had received four documents warning of the risk of damage to adjoining properties (the Martens Report, the Development Consent, the Modified Development Consent and the 2019 Dilapidation Report) from which he must have understood the importance of notification to his neighbours of information in relation to the excavation works to be undertaken on the Brown Land. In any event, whether Mr Brown thought compliance with the notice requirements in the Modified Development Consent was an important issue is not to my mind to the point. Rather, the relevant questions are as to whose obligation it was under the Modified Development Consent to comply with those conditions (see below at [1084]) and whether that obligation or duty was delegable (and, if so, whether it was in fact delegated to Mr Doueihi) (see below at [1085]). Ms Brown’s position in that regard is that the obligation to comply with the Development Conditions (whether that be hers alone, as owner, or one that also bound Scopeview, as part of its obligation under the Contract to carry out the works in compliance with the Development Consent) was delegable and had either been delegated to Mr Doueihi or he had assumed responsibility for compliance with it. I deal with this issue in due course. Were it necessary to make a finding as to whether Mr Brown understood that compliance with Conditions 13 and 14 was an

important issue, I would conclude that, at least by March 2020, he did. ● Mr Brown read and understood from the 2019 Dilapidation Report that a contiguous pier shoring system had been designed Ms Rayman seeks a finding that Mr Brown read the 2019 Dilapidation Report received on 15 November 2019 and understood from its terms that: the proposed development involved “substantial excavation”; the excavation itself required a fair amount of expertise and consideration for the neighbourhood; and that, to accommodate the integrity of the Rayman Home, a shoring system had been devised consisting of contiguous piering and strutting. There is no doubt that Mr Brown must have understood at the time of the 2019 Dilapidation Report that the development required substantial excavation and he surely must have appreciated that the redevelopment required both expertise and consideration for adjoining properties. As already noted, the proposed development involved excavation for a new three-story building and in-ground pool; Mr Brown (on behalf of Ms Brown) had, through Scopeview, engaged various consultants to provide advice and to perform work in relation to the development; and the Development Conditions themselves required that there be reports confirming that damage to adjoining properties would not be caused by the excavation or earthworks associated with the development. As to whether Mr

Brown understood, at the time he received and read the 2019 Dilapidation Report, that it made reference to a contiguous piering system, and that this differed from a sheet piling system, I repeat the observations in relation to the fourth of the factual findings sought by Ms Rayman above. Certainly, by no later than the time he sent his email dated 9 April 2020 (saying “[b]asically, I want to use the sheet piling”), Mr Brown was aware that there was a difference between the two shoring systems (even if he did not understand precisely what the difference was) and he clearly knew that the Zimmerman temporary shoring drawings made provision for something other than sheet piling because this was the subject of the request he made (he says under Mr Doueihi’s direction – which Mr Doueihi accepts was likely) of Mr Quinton to ask Mr Zimmerman to amend those drawings. I therefore find that, at least by 9 April 2020, Mr Brown was aware that the 2019 Dilapidation Report (and Mr Zimmerman’s temporary shoring drawings) made provision for contiguous piering and strutting and that this was different from sheet piling. ● Importance of price in the decision to enter into the Contract Ms Rayman sought a finding that price was one of the most important aspects governing Mr Brown’s decision-making at around the time of entry into the Contract with Scopeview. Mr Brown’s evidence supports such a

conclusion – his (strictly non-responsive) response to that proposition in cross-examination was tellingly that the quote he had obtained from Scopeview on around 19 December 2019 was the cheapest that had been obtained (28/10/25; T 159). Mr Brown gave no evidence of any other factor that influenced his decision-making at the time. Accordingly, I make this finding. That said, nothing turns on this. ● When and who made the decision to change to sheet piling Ms Rayman seeks a finding that a decision was made on around about 15 January 2020 (when Mr Brown emailed Scopeview a PDF copy of the Martens Report that had already been included in the Dropbox folder sent earlier to Mr Doueihi in December 2019) to change the shoring system from contiguous piering to sheet piling. Ms Rayman seeks such a finding for the following four reasons: first, that between 19 December 2019 (when the quote providing for “continuous” [sic] piling was issued) and 21 January 2020 (when the Contract was signed including a progress payment relating to sheet piling), the price of the works had decreased; second, that Mr Brown accepted that he “possibly” had conversations with Mr Doueihi around this time about piling and that something had triggered him to send the Martens Report to Mr Doueihi (which he guessed was the piling (see 28/10/25; T 164-165)); third, that all experts agreed that sheet piling was

cheaper than contiguous concrete piering (though I note that Mr Doueihi himself did not think it was cheaper); and, fourth, that there would be no need to email the Martens Report to Mr Doueihi unless there were going to be some change to the piling. Ms Rayman points to Mr Doueihi’s evidence that there were discussions between him and Mr Brown about the Contract prior to entering into it; that they went through the contract together; that he explained what sheet piling was to Mr Brown before the Contract was entered into (see 29/10/25; T 231-233); and that, by 21 January 2020, he (Mr Doueihi) had decided to use sheet piling. Ms Rayman thus contends that, by 21 January 2020, when the Contract was signed making specific reference to sheet piles, both Mr Doueihi and Mr Brown had agreed to use a sheet piling system. Ms Rayman submits that the evidence by Mr Brown in cross-examination that this was the first time (i.e., in the witness box) that he had seen this in the Contract (28/10/25; T 165) should be rejected in light of Mr Brown’s evidence that the Contract was a “very important” document (28/10/25; T 164) and that he had obtained legal advice with respect to whether it is “okay to sign” (28/10/25; T 165). In closing submissions for Ms Brown, it was disputed that there was a decision “to change” the shoring system from contiguous piering to sheet piling. Specifically, Mr

Luitingh said that there was no change; that there was only ever a recommendation (not to use sheet piling) (see 31/10/25; T 419). However, on any view of things, the provision to Scopeview of the Martens Report recommending against sheet piling and of documents providing for contiguous piering and strutting, followed by the provision by Scopeview of a quote that encompassed “continuous” piling (which was clearly a typographical error meaning “contiguous”) followed by a Contract specifying progress payments including for sheet piling is ample evidence of a change at that stage in the proposed temporary shoring system to be used for the development. The suggestion that this was not a “change” because the Martens Report was only a recommendation is no more than a semantic quibble. In any event, Ms Brown says that it is clear that the real issue in dispute in this regard is between Ms Rayman and Scopeview; and Ms Brown says that the decision to proceed with sheet piling was clearly that of Scopeview. Ms Brown accepts that at some time during March and April 2020 a conversation must have taken place between Mr Doueihi and Mr Brown in relation to the use of sheet piling because Mr Brown sent the 9 April 2020 email to Mr Quinton expressing the view that he would like to use the sheet piling. However, as to the choice to use sheet piling, Ms Brown points to Mr Brown’s explanation for

this as being that they had lost time and that, according to Mr Doueihi, they could make that up by using sheet piling which was quicker to install. Ms Brown says that it is clear that Mr Doueihi wanted to use the sheet piling from the outset because he was unfamiliar with contiguous piling and that it was further clear that Mr Doueihi did not appreciate the risks of sheet piling versus contiguous piling (so Ms Brown argues that Mr Doueihi could not have explained that to Mr Brown). The significance of the time at which (and by whom) the decision to use sheet piling was made is that, in Ms Rayman’s oral submissions, her case was identified as being that the failure to take reasonable care commenced in the period from 19 December 2019 through to 21 January 2020 (see at 31/10/25; T 397). Ms Rayman emphasises in this regard that, at the time the Contract was signed, there was no advice from any third party or any alternative geotechnical report addressing the suitability of contiguous piering or piling (as opposed to sheet piling). Ms Rayman thus argues that there was nothing that would permit someone (acting reasonably) to ignore the warnings in the documents that had been issued up to that point. In that regard, as already noted in the chronology of events above, Mr Doueihi, in the witness box, gave evidence that before the Contract was signed he had obtained a verbal opinion

from Mr Orr of Meso to the effect that sheet piling could be used in the North Bondi area. As Ms Rayman points out, there is no evidence that Mr Orr at that stage had plans or information as to the site or the proposed development. He did not have the Martens Report or Zimmerman drawings until 31 October 2020. As to who made the ultimate decision to use a sheet piling system, Scopeview accepts that Mr Doueihi’s evidence was that he made a decision in his mind to use sheet piling prior to finalising the Contract in January 2020. However, Scopeview submits that, insofar as Mr Brown sought to present himself as having made no decision on the matter, Mr Brown’s evidence should be rejected. Scopeview refers in this context to Mr Brown’s 9 April 2020 email to Mr Quinton in which Mr Brown stated “[b]asically, I want to use the sheet piling”. Scopeview also argues that its role was to execute the works in accordance with the instructions of the Browns. Scopeview says that, other than Mr Doueihi being more familiar with sheet piling than he was with contiguous piling and sheet piling being quicker than contiguous piling, Scopeview did not obtain a particular advantage in using sheet piling. Scopeview submits that Mr Brown’s evidence that his statement “I want to use the sheet piling” should be construed, not as an instruction from him, but as an instruction from Mr Doueihi, should be

rejected. Scopeview further submits that Mr Brown’s explanation (that his use of the first person in the statement “I want to use” was a “pronunciation of authority … for MASQ Architect I wanted to make as if the instruction came from me” (29/10/25; T 187)) should be rejected. In that regard, Scopeview submits that, taken at face value, Mr Brown’s explanation suggested that he was attempting to convey a false impression to his architect to engineer an outcome that he could easily have achieved by simply telling Mr Quinton that it was Mr Doueihi who needed a single set of shoring plans to be approved by the certifier. As to this factual issue, the objective evidence makes clear that the initial proposal (recorded in the Zimmerman 2019 Dilapidation Report) was for the use of contiguous piering and strutting (or contiguous piling) as the temporary shoring system. Mr Doueihi’s initial quote was for “continuous” ([sic], contiguous piling) but the Contract contemplated the use of sheet piling. Mr Doueihi admitted in cross-examination that, in his mind, by the time of the Contract, he had “definitely” decided to use sheet piling. I find that at some time between 19 December 2019, when the quote was issued, and 21 January 2020, when the Contract was signed, a decision had been made at least by Mr Doueihi to use sheet piling (and Mr Brown was aware of that to the extent that Mr Doueihi

had discussed with him the use of sheet piling). Such a decision by Mr Doueihi is perhaps unsurprising in circumstances where Mr Doueihi had never previously used contiguous piering or piling for a development project (although it should be noted that he also had limited experience in the use of sheet piling – one project in Matraville – at that stage). Further, if Mr Doueihi’s evidence that he spoke to Mr Orr prior to the Contract about the use of sheet piling in the North Bondi area (see [96] above) were to have been accepted (cf [97] above) this would also be consistent with Mr Doueihi having decided to use sheet piling at that stage. What is not clear, however, is that Mr Brown appreciated at the time the Contract was entered into that the shoring system proposed to be used had changed from contiguous piering or piling to sheet piling (since it is not clear that the difference between the two systems was explained to him at the time). Certainly, by signing the Contract which made provision for sheet piling (in the specification for this as one of the milestones for a progress payment), it can be said that Ms Brown endorsed the decision to proceed with sheet piling but I do not consider that the evidence establishes that Mr Brown appreciated this or its significance at the time. The fact that the fixed price for the construction works had decreased (by reference in large

part, it may be inferred, to the change to sheet piling) does not lead me to conclude that Mr Brown appreciated that this was due to a change to the proposed shoring system. The fact that the experts all agreed that sheet piling would be cheaper goes nowhere because on Mr Doueihi’s evidence he did not understand this and, to the extent that he discussed this with Mr Brown at the time, it is unlikely that the decrease in price would have been the explanation for the decision. As to the submission that there would have been no reason for Mr Brown to send a PDF copy of the Martens Report on 15 January 2020 unless there were going to be a change to the piling, I am unable to conclude that this was the reason Mr Brown did so. Certainly, Mr Brown “guessed” that it had something to do with the piling but that answer had the flavour of speculation. Thus, while I find that Mr Doueihi had made a decision sometime between 19 December 2019 and 21 January 2020 to use sheet piling and that Ms Brown, by signing the Contract, endorsed that decision (since she must be taken to have agreed with its terms, which provided for a progress payment in relation to sheet piling), I do not find that Mr Brown (whose conduct is to be imputed to Ms Brown – see [709] above) had made such a decision prior to entry into the Contract. Events of 1 and 2 March 2020 More contentious are the findings sought in

respect of the events on 1 and 2 March 2020, the latter being described as the central factual issues in the proceedings. ● Findings to be drawn from 1 March 2020 email by Mr Brown to Mr Doueihi about Stockley enquiry Ms Rayman seeks a number of findings in respect of the 1 March 2020 email Mr Brown sent to Mr Doueihi. First, that Mr Brown extracted Conditions 13 and 14 from the Modified Development Consent, turned his attention to those conditions and understood that he (Mr Brown) had to comply with them. Second, that no instruction or direction was given by Mr Brown to Scopeview to comply with Conditions 13 and 14. Third, that Mr Brown took it upon himself to satisfy Conditions 13 and 14 and was asking Mr Doueihi whether he could send certain documents to Mr Stockley. Fourth, that Mr Brown understood that it was important to notify adjoining neighbours, including Ms Rayman. As to the first of the findings sought by Ms Rayman in relation to the 1 March 2020 email, I accept that Mr Brown must have turned his mind to Conditions 13 and 14 at this time because he extracted them and sent them to Mr Doueihi. As to whether Mr Brown understood that he (or, more precisely, his wife) needed (as owner) to comply with them, the 1 March 2020 email does not make this clear. Rather, I consider that what can be drawn from this email is that Mr Brown understood that there needed to be

compliance (by someone – whether the owner, Ms Brown, or Scopeview) with those conditions and that Mr Brown was proposing that he do so. As to the second of these findings, I consider that one cannot discern from this email any instruction or direction given by Mr Brown to Mr Doueihi (i.e., Scopeview) to comply with Conditions 13 and 14; and, in the absence of any other evidence that he did so, I find that no such instruction or direction was given. As to the third, as already noted, I find that Mr Brown took it upon himself to satisfy Conditions 13 and 14 insofar as Mr Stockley was concerned. That is abundantly clear from the 1 March 2020 email. As to Mr Brown’s evidence that he asked Mr Doueihi if it was “OK” to send the documents this because Mr Doueihi (or Scopeview) had “control of the property” (28/10/25; T 181), I do not accept that this is the most plausible reason for the query. The more plausible reason, which emerges from the 1 March 2020 email itself, is that Mr Brown wanted to know if he was required to check first with the PCA before so doing. Why he had a query as to whether it was necessary to check this with the certifier was not explored (and Mr Brown’s evidence as to why he checked later if it was “OK” to send the documents to the Raymans suggested that he thought there might be a problem doing so since they showed an inconsistent shoring system). In any

event, I cannot accept that the fact that Scopeview had “control of the property” was the reason for Mr Brown’s enquiry in the 1 March 2020 email. I note that Ms Brown submits that it is apparent from this email (and other evidence, such as Mr Doueihi’s concession that he provided Mr Brown with information to send to other people such as the communication that he wanted to relay to Mr Zimmerman to change the drawings from contiguous piles to sheet piles and to remove the reference to contiguous piles adding the words “to be done by others”) that Mr Brown did “not take a step” without asking Mr Doueihi. (Ms Brown contends that Mr Brown was adopting the same modus operandi as he did in relation to the request for amendment to the Zimmerman drawings, when he asked whether or not he should send the documents to Mr Stockley.) I have already addressed the nub of this submission when dealing with the contention that Mr Brown was the “driving force” behind the project. Therefore, as to the last of the findings sought by Ms Rayman in relation to this email, were it necessary to make a finding on this issue, I would have concluded that Mr Brown understood at least by March 2020 that it was important to notify adjoining neighbours (and that this notification extended to what was required for compliance with Conditions 13 and 14). ● Findings as to disputed 2 March 2020 conversation between

Mr Brown and Mr Doueihi Was there a telephone conversation between Mr Brown and Mr Doueihi on 2 March 2020? Ms Brown contends that, in the light of the fact that there was no written response to the 1 March 2020 email, there must have been a telephone call between Mr Brown and Mr Doueihi at that time. While that is logical, the fact that Mr Brown sent the documents to Mr Stockley on 1 March 2020 suggests that any telephone call that occurred in response to that email was on the same day (not on the following day – 2 March 2020). In any event, this finding is no longer contentious since Scopeview accepts that there was a telephone call on 2 March 2020 (although Mr Doueihi did, and does, not recall it). As Scopeview points out, the dispute is as to what was said in that telephone call, Scopeview identifying the issue for determination as whether Mr Doueihi said, in relation to providing Ms Rayman with the shoring design and the dilapidation report in respect of the Rayman Home, “leave it with me”. As I have already indicated, the issue that seems to have triggered the reopening application is, more precisely, whether Mr Doueihi positively told Mr Brown that he must not send the documents to the Raymans (Mr Doueihi’s denial of this leading to Mr Brown’s concern that his credibility had been undermined). Mr Doueihi states that he has no recollection of a telephone call. The only

person that has a recollection of the telephone call is Mr Brown. Ms Brown submits that, in those circumstances, Mr Brown’s version of what happened should be preferred (given that there must have been a telephone call and that both Mr Doueihi and Mr Brown agree that they mainly communicated by telephone). I do not accept this but deal with this below. What was said in the 2 March 2020 conversation The two primary findings that Ms Rayman seeks both relate to the contents of this conversation. First, that Mr Doueihi did not tell Mr Brown on or around 2 March 2020 that he must not send the geotechnical report and/or details of the proposed sheet piling to Raymans. Second, that Mr Doueihi did not tell Mr Brown that he (Mr Doueihi) had complied with Conditions 13 and 14 prior to the issuance of the construction certificate on 22 April 2020 (see 31/10/25; T 400). Ms Rayman relies in support of such findings on the following seven matters. First, that Mr Brown gave inconsistent evidence when asked why he did not send the Martens Report and details of the proposed sheet piling to Ms Rayman on 2 March 2020: initially saying that Mr Doueihi told him that he (Mr Doueihi) would take care of it; then saying that Mr Doueihi expressly instructed Mr Brown not to send it to Ms Rayman; and, finally, saying that Mr Doueihi was in the middle of changing from one shoring system to the other at

this time. As to this last reason (which was put forward by Mr Brown himself as speculation (28/10/25; T 171)), Ms Rayman argues that this cannot be the case as both parties had agreed to use sheet piling by 21 January 2020. I have addressed that contention in relation to the factual finding under the heading when and who made the decision to change to sheet piling above. The decision by Mr Doueihi to use sheet piling was indeed made by 21 January 2020 (and endorsed when the Contract was signed) but that does not lead to the conclusion that Mr Brown could not have had an understanding as at March 2020 that Mr Doueihi was in the middle of changing to sheet piling – especially since it was at about this time (specifically, as at 9 April 2020 and 14 April 2020) that attempts were made to have changes to the Zimmerman drawings to remove reference to perimeter piles and to the reference to the shoring design to be certified by others. Thus, whenever the decision to use sheet piling was originally made, as the chronology of events set out above shows what was occurring at around 9 to 14 April 2020 was that attempts were being made to obtain revised plans which could be certified for construction of a sheet piling temporary shoring system. The inference I draw from the chronology of events set out earlier is that, after Mr Weinberg raised the issue with the duty planner at Waverley

Council as to a concern that there was a proposal to use sheet piling (first by telephone in March 2020 and then by email in April 2020), and in any event when it was appreciated by Mr Doueihi that certified construction drawings (for sheet piling) were required in order to obtain a construction certificate for the excavation and construction works, it was realised (by Mr Doueihi and by 9 April 2020 also by Mr Brown) that it was necessary to remove the reference to contiguous piling from the Zimmerman drawings. This prompted the request made by Mr Brown of Mr Quinton (at, Mr Brown says, Mr Doueihi’s request, which Mr Doueihi appears to accept) to which I have already referred for amendment to the Zimmerman drawings. Understood in this context, the suggestion by Mr Brown that at around March 2020 Mr Doueihi was in the throes of changing from one piling system to another at this time makes sense even if the decision to use sheet piling had been made at a much earlier stage (as I have found it was). The second matter here relied on by Ms Rayman is that Mr Brown’s evidence that Mr Doueihi told him that he had provided the geotechnical report and details of the proposed sheet piling to Ms Rayman arose for the first time in the course of Mr Brown’s cross-examination and is not supported by any objective evidence. Ms Rayman argues that, if truthful, ought to have been raised in Mr

Brown’s evidence-in-chief. The third matter relied on is that there would be no need for Mr Brown to provide Mr Doueihi’s contact details to Ms Rayman (via Mr Rayman and Mr Weinberg) on 24 April 2020 when notification was provided if he genuinely believed that Mr Doueihi had already provided written notice to Ms Rayman. Relatedly, the fourth matter relied on is that there would be no reason for Mr Brown to ask Mr Doueihi on 24 April 2020 whether Mr Brown could send the dilapidation report to the Raymans if he had already been told that Mr Doueihi would notify Ms Rayman. The fifth matter relied on is Mr Doueihi’s evidence that he could not recall saying to Mr Brown that he should not send the geotechnical report and details of the proposed sheet piling to Ms Rayman but that he could not “see” himself or “picture” saying that Ms Rayman submitted that this was a measured answer, was consistent with the objective evidence and had the ring of truth. I agree. The sixth matter relied on is that all the objective evidence indicates that it was Mr Brown who notified his neighbours. I accept that this is the case. Mr Doueihi’s “memory” as to disclosures related solely to neighbourhood “doorknocking” (by Scopeview employees) at about the time that excavation works were about to commence (29/10/25; T 226). The only statement that Mr Doueihi had told Mr Brown that he had done so came in the

course of Mr Brown’s cross-examination (29/10/25; T 175-176) and appears to be contradicted by other evidence of Mr Brown to the effect that he had not understood that Mr Doueihi had notified the Raymans (see above at [310]-[311]). Ms Rayman argues that the fact that Mr Brown personally emailed the geotechnical report and other documents to Mr Stockley four weeks prior to the construction certificate being issued shows that it was always within Mr Brown’s capacity both to understand and to comply with the Modified Development Consent Conditions. Ms Rayman says that there was no need for Mr Brown to enlist the assistance of Mr Doueihi to achieve compliance with Ms Brown’s duty to supply those documents to Ms Rayman within that timeframe. The seventh matter relied on is that it is consistent with Ms Brown’s evidence that the first person she instructed to provide sheet piling details after discussing it with Mr Weinberg was Mr Brown (not Mr Doueihi), notwithstanding that she had Mr Doueihi’s contact details. Ms Rayman argues that if an agreement, as contended for by Mr Brown, did in fact take place in the 2 March 2020 telephone conversation, then such a matter of importance relating to critical earthworks would logically be supported by a text, email or other contemporaneous document created in March 2020 and sent by Mr Brown to Mr Doueihi confirming acceptance by Mr Doueihi of

this statutory burden; and Ms Rayman emphasises that there is none. Scopeview, in its submissions, emphasises that Mr Doueihi consistently rejected the suggestion that he told Mr Brown not to send the geotechnical report and the like to the Raymans. Scopeview submits that Mr Doueihi had no reason to tell Mr Brown not to provide the reports, and that no reason was advanced as to why Mr Doueihi would wish Mr Brown to do so. The first of the findings here sought by Ms Rayman (that Mr Doueihi did not tell Mr Brown that he must not send the documents to the Raymans) squarely raises the contest explored in the reopened hearing, so I deal with that first. I am unable to conclude on the evidence before me that Mr Doueihi told Mr Brown on 2 March 2020 (or at any other time) that he (Mr Brown) must not send the geotechnical report or details of sheet piling to the Raymans. It is not plausible that Mr Doueihi gave such an instruction or direction in relation to the Raymans when he had not given any such instruction or direction in relation to Mr Stockley. Mr Doueihi’s evidence that he saw no reason why he would have said that makes sense. It is difficult to see what Mr Doueihi would have thought he might gain by not disclosing it. As I indicated in the course of cross-examination in the first hearing (see 29/10/25; T 265), in relation to the dispute as to whether he had told Mr Brown not

to send documents to the Raymans, Mr Doueihi said consistently that he did not recall saying it to Mr Brown and that he did not see himself saying that. In these circumstances, any concession that it was possible that he had said is one on which I could place very little weight. It was put to Mr Brown in effect that he wanted to conceal these documents from the Raymans (which he denied). Perhaps ironically, Mr Brown himself suggested that Mr Doueihi may have sought to do so for similar reasons (see 28/10/25; T 171), while in the throes of changing the plans to reflect that sheet piling was to be used. As to Mr Doueihi’s remark that “I don’t see why I would say that”, Ms Brown submits that it was obviously because Mr Doueihi wanted to proceed with the sheet piling and not raise it as a contest between himself and the neighbours, particularly the one neighbour that was likely to complain, and in the light of the fact that Meso had advised him that the neighbours were more than likely to complain. Ms Brown submits that Mr Doueihi had “every reason” to tell Mr Brown not to send the documents to Ms Rayman. I do not accept this. It is by no means apparent to me that Mr Doueihi would have any interest in so doing – or indeed that Mr Doueihi attached any real significance to the inconsistency between the IDC reports (which had been provided to Mr Stockley in response to his request and

the 2019 Dilapidation Report or Zimmerman documents which referred to contiguous piering and strutting). As I have said, Mr Doueihi’s response that he did not see why he would tell Mr Brown not to send that material rang true to me. What is abundantly clear from the evidence on the reopening, as I have referred to above, is that Mr Brown not only discussed with Mr Doueihi on numerous occasions the evidence given at the hearing, but also presented Mr Doueihi with his (Mr Brown’s) account of what he says Mr Doueihi had said to him to make sure they were “on the same page”. That account was then incorporated or reflected in the draft letter Mr Rod prepared and sent to Mr Doueihi. That gives me great difficulty in accepting that Mr Brown’s evidence as to what Mr Doueihi said on 18 November 2025 (even if Mr Doueihi did say this) is a reliable account of events (as opposed to one produced as a result of numerous discussions in which Mr Brown had been involved). It must be noted that Mr Doueihi had no obvious interest in “rectifying” the record of his evidence as opposed to Mr Brown who seems to have been focused on vindicating his credibility as a witness. On his own version of events, Mr Doueihi had the discussion about sheet piling prior to the signing of the Contract and did not explain the difference between sheet piling and contiguous piling to Mr Brown prior to the signing of

the Contract but nevertheless included it in the Contract notwithstanding the fact that the Martens Report called for contiguous piling. Ms Brown says that Mr Doueihi concealed from Mr Brown the fact that he always intended to use sheet piling and that Mr Doueihi concealed it from Ms Rayman and her husband. I do not find that the evidence supports a finding that Mr Doueihi actively or intentionally concealed his intention to use sheet piling from Mr Brown. Mr Doueihi accepted when it was put to him that he had discussed sheet piling with Mr Brown before the Contract was signed (see [349]-[350] above). Adopting a charitable view, I consider that Mr Brown’s evidence that Mr Doueihi did tell him not to send (or that he must not send) the geotechnical report and sheet piling details to the Raymans (which was given for the first time in cross-examination and struck me at the time as having the flavour of an overstatement perhaps by way of emphasis to disclaim any responsibility for notification) is most likely due to Mr Brown’s subjective interpretation as to what was conveyed by the statement he first attributed to Mr Doueihi, namely “leave it with me”. That said, as I have already indicated, I do not make a finding that Mr Brown’s evidence on that issue was untruthful. I simply have concluded that Mr Doueihi’s evidence better accords with the contemporaneous documents (none of

which refers to any such positive direction by Mr Doueihi not to send the documents) and with the common sense logic of events (as well as the fact that Mr Brown only proffered this evidence in the witness box for the first time). One witness’ evidence may be preferred over another on a particular topic without making any finding of untruthfulness. As indicated above, the more charitable explanation for Mr Brown’s assertion that Mr Doueihi positively instructed him not to send the documents to the Raymans (as adverted to above) is that Mr Brown in his own mind interpreted “leave it with me” as an instruction not to do so (an interpretation which Mr Doueihi consistently rejected despite persistent attempts by Mr Luitingh to obtain such a concession and an interpretation which I reject). Mr Doueihi’s evidence was consistently that he did not recall having a conversation with Mr Brown that he should leave notifying the neighbours to Mr Doueihi but that if “such a conversation occurred” he may have said “leave it with me” as that is an expression he commonly used (see [41] of his 26 February 2026 affidavit). Therefore, while I accept that it is possible that Mr Doueihi said to Mr Brown words to the effect “leave it [i.e., the notification of the Raymans] with me”, I cannot accept that Mr Doueihi positively instructed or directed Mr Brown not to make such a notification. As to the

questions put to Mr Doueihi in cross-examination about what Mr Doueihi meant by the expression “leave it with me”, I do not consider that this assists in determining the issue of liability – rather, the question (insofar as that goes to the foreseeability of risk of harm as Ms Brown contended it did) is what a reasonable person in the position of Mr Brown would have understood was being conveyed to him. In that regard, I do not accept that a reasonable person would understand the words “leave it with me” to amount to a positive direction not to do that which was said could be left with the speaker. I accept that the expression would convey an assurance that something would be done and that the reasonable person could well understand this to be an assumption of responsibility on the part of the person saying “leave it with me” but I do not accept that this amounts to a direction proscribing the doing of that very thing. Mr Doueihi was adamant that he did not tell Mr Brown not to send the notifications to the Raymans. I accept his evidence on that issue. There seems to me no logical reason for Mr Doueihi to have given such an instruction in circumstances where he had no apparent objection to Mr Brown providing the relevant notification or reports to Mr Stockley. Therefore, I find on the balance of probabilities that Mr Doueihi did not tell Mr Brown that he must not send the

geotechnical report and sheet piling details to the Raymans. As to the second aspect of the finding here sought by Ms Rayman (that Mr Doueihi did not tell Mr Brown that he (Mr Brown) had complied with Conditions 13 and 14 prior to the issue of the Construction Certificate on 22 April 2020), I am comfortably persuaded that such a finding should be made. Mr Brown’s evidence that Mr Doueihi said he had done so was contradicted by other evidence and it makes no sense that Mr Brown would have enquired whether it was “OK” for him to send the details to Mr Stockley if he had been told at that time that Mr Doueihi had already done so. Significantly, if Mr Brown thought that Mr Doueihi had told him that he had notified the neighbours as required by Conditions 13 and 14, it makes no sense that Mr Brown would not have made some complaint at the time he learnt that Mr Doueihi had not done so. Related to the finding here sought, is the question whether Mr Doueihi assumed responsibility, vis à vis Ms Brown, to notify the neighbours. The highest that the evidence goes is that Mr Doueihi may have said “leave it with me” and if he did he would have intended to do so. To my mind, that is not a delegation by Mr Brown of responsibility to Mr Doueihi nor is it a clear assumption of responsibility by Mr Doueihi for notifying the neighbours (although I accept that, if it had been said, it would

convey or represent that he would do so). Relevantly, however, Mr Brown’s email to Mr Stockley does not suggest that Mr Doueihi had assumed responsibility for this (since it included the contact details for the builder). Any belief by Mr Brown that the responsibility for notifying neighbours had been delegated to, or assumed by, Mr Doueihi does not explain the communication, seemingly out of the blue, in late April 2020 by Mr Brown asking whether he could send the 2019 Dilapidation Report to the Raymans. The evidence as to the circumstances in which the Browns signed the declaration as to compliance with the conditions of the Development Consent does not support the conclusion that they did so on the basis of confirmation from Mr Doueihi as to compliance with the conditions. Mr Doueihi simply on-forwarded the document he received from PCA to the Raymans for signature. It seems clear from Mr Doueihi’s evidence that he believed that the issuance of the document by PCA amounted to some kind of confirmation by the PCA that the conditions had been satisfied, which cannot have been the case. That was the very issue on which the PCA wanted certification from the Browns. Nor is there any basis for Mr Doueihi’s apparent assumption that the PCA certificate would amount to notification of the neighbours. That was one of the conditions which had to be satisfied prior to commencement of the

works. However, if Mr Doueihi did have that belief at the time then it makes it even more unlikely that Mr Doueihi would have told Mr Brown that he had notified the neighbours in compliance with the conditions. Therefore, I find that Mr Doueihi did not tell Mr Brown that he had complied with Conditions 13 and 14 prior to the issuance of the Construction Certificate on 22 April 2020. ● Knowledge of Mr Brown as at 22 April 2020 that Conditions 13 and 14 had not been satisfied Ms Rayman seeks a finding that on 22 April 2020, at the time that the declaration was signed by Mr Brown (in relation to the Notice of Commencement of Building Works that all development conditions that were required to be satisfied prior to the commencement of building work had been satisfied), Mr Brown knew that Conditions 13 and 14 had not been satisfied. Mr Brown certainly knew that he had not himself sent any documents to the Raymans (or to Mr Stockley for that matter) that would comply with Conditions 13 and 14 as at 22 April 2020. In the absence of any evidence that persuades me that Mr Doueihi had informed Mr Brown that the notification to Ms Rayman had been sent, I make this finding. ● Acceptance by Mr Doueihi of responsibility to inform the neighbours Ms Brown contends for a finding that Mr Doueihi accepted responsibility to inform the neighbours and failed to maintain proper records of what had

been done; and for the further finding that, in practical terms, Mr Doueihi was the only person that could ensure compliance with the notice provisions because he was in exclusive possession and control of the site and of the build. Ms Brown argues that there is no evidence adduced by Mr Doueihi to show that he, being the person on site, had provided information to either Mr Brown or the PCA to enable them to provide the notices. (Thus, Ms Brown contends that the failure to provide notice was entirely the function and failure of Scopeview.) This finding has largely been addressed when considering the previous findings as to the disputed content of the 2 March 2020 telephone conversation but, for completeness (and for ease of reference), I address it again briefly here. As to the first aspect of the finding for which Ms Brown has here contended, Mr Doueihi himself accepted in cross-examination that he had an obligation to notify neighbours of the excavation works but his evidence was that he assumed that the certifier had the same obligation. The extent to which it may be said that Mr Doueihi accepted at the time that he had the responsibility to notify neighbours is therefore somewhat unclear. But if what is meant by this particular finding sought by Ms Brown is that Mr Doueihi assumed responsibility in a legal sense for notification of (or took it upon himself to notify) the

neighbours, in the sense that he communicated this in some way to Mr Brown, this comes back to the disputed 2 March 2020 conversation (“leave it with me”) – see above at [771]ff. I have concluded that Mr Doueihi did not assume responsibility, in a legal sense, vis à vis Ms Brown, for compliance with Conditions 13 and 14 of the Modified Development Consent. Mr Doueihi’s acceptance of the possibility that he may have said “leave it with me” goes no further than raising the possibility that he did so, based on this being an expression he commonly used. He was adamant that he did not recall saying this in the 2 March 2020 conversation (including when under no little pressure from Ms Brown’s camp to do so). The fact that Mr Doueihi’s evidence was that, if he had said this, he would have intended to do what he said takes the matter no further. And the fact that Mr Doueihi actually took no steps after 2 March 2020 to notify the Raymans makes it far more likely (and certainly more likely than not) in my opinion that he did not say this during the conversation on 2 March 2020; and I so find. As to the proposition that Mr Doueihi failed to keep proper records, that forms part of the pleaded issues and I would not be in a position to make any finding on that issue in the absence of any evidence as to what records were maintained and what one would expect to be maintained in relation to

neighbour notification. As to the further proposition that Mr Doueihi was the only person who could, in practical terms, ensure compliance with the notice provisions, that is belied by the fact that ultimately it was Mr Brown who did so. The contention by Ms Brown that there is no evidence that Mr Doueihi provided information to Mr Brown to enable him to provide the notices goes nowhere, since Mr Brown was clearly able to obtain the relevant documents from Mr Doueihi; and able to do so on 24 April 2020. ● Steps taken by Mr Brown to notify neighbours Ms Brown submits that, when it came to her attention and that of Mr Brown that notice had not been provided to “the neighbour” (presumably, Ms Rayman), they took immediate steps to ensure that notice was given. Ms Brown refers in this regard to the fact that she personally went to see Mr Weinberg to determine the status of notification and that, upon learning that certain documents had not been delivered to Mr Rayman, Mr Brown immediately forwarded the documents that had not been provided by Scopeview as soon as he received them on 24 April 2020. Assuming (which is not clear) that these are factual findings for which Ms Brown contends, it is by no means apparent that the factual basis for the first (that Ms Brown went to see Mr Weinberg to determine the status of notification) is established. Ms Brown’s evidence is that she went to

see Mr Weinberg when she learnt that someone from the Council had been at the site. It is not clear that she did so upon learning that documents had not been delivered to Ms Rayman (or Mr Rayman for that matter). Nor is it clear when that conversation with Mr Weinberg occurred, although at one stage it was suggested that this was in March 2020. Given that Mr Weinberg’s first (verbal) enquiry with Waverley Council was in mid-March 2020, this seems logical but for all I know it could have been an entirely unconnected enquiry or it could have been not until after Mr Weinberg followed up his verbal enquiry with the written email. Interestingly, as Ms Rayman points out, when Ms Brown had that conversation with Mr Weinberg it was to her husband (not Mr Doueihi) that Ms Brown went to ask that the neighbours be notified of the works. As to the second (that when Mr Brown learnt that the documents had not been sent to the Raymans he immediately forwarded them on 24 April 2020), it is not clear when Mr Brown became aware that notification had not been served by Mr Doueihi on the Raymans. Certainly, Mr Brown knew that he, himself, had not done so. According to him, when he learnt that Mr Stockley was enquiring as to notification, he asked Mr Doueihi the following day (2 March 2020) as to whether he could send the documents to the Raymans. Mr Brown certainly did not take immediate steps to

notify the Raymans at that stage (i.e., when he learnt that the other neighbour, Mr Stockley, had not been notified). He did not do so until 24 April 2020. If the conversation between Ms Brown and Mr Weinberg was the source of Mr Brown’s awareness that the Raymans had not been notified, then there is still no basis to find that Mr Brown at that stage took immediate steps to notify them (unless, which is not suggested, that conversation took place on 24 April 2020). Accordingly, I do not make these findings. ● Finding sought as to prompt compliance with the direction by Mr Doueihi Ms Brown sought a finding that, when directed by Mr Doueihi to send information to the neighbours, Mr Brown did so promptly. The difficulty with that is that there is no evidence of any such direction. I am unable to make such a finding. ● What Ms Rayman would have done had she been given notice Relevant to the question of causation on the failure to notify issue, Ms Rayman contends for a finding that, had she, her husband and her father been afforded seven days’ notice of commencement of excavation works (and the required documents) they would have engaged professional consultants (she says most likely Mr Zimmerman) and would have acted in accordance with the advice provided by those professionals; and that the advice would have been to take some form of action either to prevent the excavation works

from commencing or to take steps to protect the Rayman Home given the obvious deficiencies in the shoring plans including, inter alia, the inflated alarm and halt vibration levels specified in the plans. In this regard, Ms Rayman points to her evidence that: she and Mr Weinberg were trying to obtain information from Mr Brown about the excavation prior to it commencing (which she submits is consistent with the objective evidence of verbal and written enquiries having been made by Mr Weinberg with Waverley Council); Mr Weinberg was aware (through Mr Zimmerman) that Ms Brown had changed the shoring system to sheet piling and believed that this was going to cause problems (which she submits is consistent with the email from Mr Zimmerman to Mr Brown expressing his concern about the use of sheet piling); and, after receiving the Martens Report and excavation details, she had a discussion with Mr Weinberg to ascertain what she needed to do and whether professionals needed to be engaged to help her to understand the information. I have no difficulty making such a finding. It is clear that the Raymans were concerned as to the excavation works in general and, in particular, the prospect of sheet piling being used. Common sense suggests that, had the Raymans been given the requisite period of notice, they would have sought professional advice and I accept that, on the balance of

probabilities, they would likely have taken action in accordance with that advice. I do not accept that the fact that they did not take such steps before notification was actually given (but after they had become aware through Mr Zimmerman of a change in the proposed shoring system) detracts from such a conclusion, since it seems to me that the evidence discloses uncertainty on the part of the Raymans as to what actually was going to happen (and whether that would be permitted by Waverley Council). The very fact that enquiries were made of Waverley Council supports the conclusion that the Raymans would have tried to do something to address the risk posed by the use of sheet piling had they been notified earlier (as does their attempt to raise the issue with the PCA in accordance with the advice given by Waverley Council in its belated response to Mr Weinberg’s enquiries). This disposes of the argument by Ms Brown that loss of opportunity goes nowhere in light of the “constructive notice” that the Raymans had of the decision to use sheet piling. That said, this is ultimately a loss of opportunity claim and it is not necessary to resort to this in light of the findings as to breach on the primary negligence claims. Expert evidence I turn now to the expert evidence that was adduced. Valuation evidence Two valuers were called as expert witnesses: Mr Field, called by Ms Rayman,

whose reports were dated 28 March 2023 (Ex E) and 20 November 2024 (Ex G) and Ms Kristy Kerswell, called by Scopeview, whose report was dated 20 June 2025 (Ex 7). Ms Brown disputes that either of the experts has approached the matter correctly, on the basis that she says both incorrectly assumed the Rayman Home was in good condition, when in fact it was in poor condition. As noted, two reports from Mr Field were in evidence. The first, issued in March 2023, found that (as at that date) the Rayman Home was valued at $6 million, on the assumption that the property was in good condition and there were no defects or issues due to the adjacent development. Ms Brown says that this did not take account of at least the following facts: the front balcony was rotting and was falling down; the back balcony was leaking and had destroyed the garage roof (pausing here, the submissions seem to have transposed the front and back balconies, since it is the front balcony that is above the garage but the thrust of the submissions is not affected by this); there was structural cracking on the west side; the footings on the sub-floor were not according to plan, were substandard and defective; and the pool support wall had to be removed and re-instated (this last issue being to do with the encroachment claim). Ms Brown submits that if the home was not in good condition then these defects would

render the home at a range of $4.5-5.5 million. The second report was issued in November 2024 valuing the property at $8.6 million, again assuming that the property had not been damaged and was in good condition. Mr Field assessed the diminution in value at $1,150,000.00. Ms Kerswell provided an expert valuation of the compensable loss and, assuming that the house had only suffered normal wear and tear and remained in the same physical and structural state it was in on 27 April 2020 (prior to the vibration damage), determined the diminution of value at $625,000.00. Both experts agreed on the methodology of valuation and on the most comparable sale (that being a property at Owen Street, North Bondi) though they disagreed as to whether the subject property was superior or inferior to the comparable sale. Mr Field was of the view that the subject property was superior; Ms Kerswell concluded that it was inferior. There was also disagreement as to the use to be made of, or perhaps more accurately the weight to be placed on, the CoreLogic analysis of market movements in the relevant period on which Ms Kerswell placed reliance. Ultimately, the difference between the two valuation experts was relatively minor in the scheme of things. Mr Field assessed the value of the subject property as at 22 October 2024 at $8.6 million; Ms Kerswell at $8.075 million as at 23 October 2024 a

difference of $525,000.00. The difference was largely attributable to the premium placed by Mr Field on the advantages he perceived in the subject property. What neither of them considered was that there was no diminution in value by reason of the damage sustained to the subject property (as Ms Brown contends), let alone that the sale of the Rayman Land produced a “windfall” (as counsel for Ms Brown at one stage submitted) (27/10/25; T 62), although that submission was later withdrawn (31/10/25; T 433). Each valuer was of the opinion that the price a prospective purchaser will be prepared to pay for the property may be affected by building defects and the anticipated cost of rectifying those defects. They differed over the degree of knowledge a prospective purchaser should be assumed to have before a valuer may take the cost of rectifying building defects into account. Ms Kerswell pointed out that the purchasers of the Rayman Home made investigations into the cost of rectifying building defects. (As noted in the chronology, the evidence is that the purchasers’ builder had assessed the costs of rectifying “various defects and compliance issues” at $500,000.00 and that the purchasers’ bank required these costs to be taken into account when approving their loan.) The experts met in conclave and produced a joint report dated 21 October 2025 (Ex H). They gave evidence

concurrently. Various issues were identified as arising from the respective valuation reports, those being as follows (some of which were resolved in the conclave and need not here be dealt with in any detail). Issue A – configuration of bedrooms and bathrooms. This related to what was explained as a typographical error in Ms Kerswell’s report (that Ms Kerswell had referred to five bedrooms, not six; and to five bathrooms, not five plus a guest “powder room”). Ms Rayman accepts that nothing turns on this issue. Issue B went to the internal area of the subject premises. Mr Field, who carried out an internal inspection, proceeded on the basis of an internal area at 368.5 square metres; Ms Kerswell, who carried out a street view, proceeded on the basis that it was 351 square metres. Thus, Mr Field proceeded on the basis that there was about a 5% increase in internal living area over that used by Ms Kerswell in her valuation. Ultimately, the difference between the experts on this issue related to the weight (if any) to be placed on the extra living area of the subject property. Ms Kerswell’s opinion was that the difference is immaterial and she did not believe it would have a significant impact on market value. Ms Kerswell considered that most of the value attributable to a property is its configuration of the property (not its internal area), which she clarified as referring to

the number of bedrooms, bathrooms and the like (not the aesthetics of the rooms or the functionality or “flow” of the house) (29/10/25; T 276). Ms Kerswell said that she had compared the subject property against the comparable sales evidence and had noted quite a difference between the prices paid for “more bedrooms and bathrooms as opposed to land” but considered that it would be “more substantial for the configuration than the internal area, in terms of an impact on value” (29/10/25; T 274). While Ms Kerswell agreed that a larger internal area space would (if it did have an impact on the value) operate to increase, not decrease, the value, in the concurrent hearing Ms Kerswell reiterated her view that the majority of the value lies in the configuration of the property (29/10/25; T 273-274). Ms Kerswell accepted that the nub of her opinion was that there would be a slight increase in value but said that it could not be quantified and she considered it to be relatively immaterial. Mr Field accepted that configuration was an important factor (as was functionality) but maintained that area was also important. His position was that a greater internal area must be worth at least a dollar more (and certainly could not be a negative) (29/10/25; T 275-276). (With respect, that opinion has the virtue that it accords with common sense in circumstances where it is common knowledge that

properties are advertised with reference to their size and the number of bedrooms, bathrooms and the like.) Issue C (as to land area) was agreed and need not here be set out. It was agreed that the higher land area put forward by Mr Field was correct but also that this had no impact on the assessment of market value. Issue D related to the correct treatment of “market movements”. The experts agreed that the most accurate way of providing a valuation was by use of comparable sales evidence but, as adverted to above, they disagreed as to whether the subject property was inferior or superior to the agreed comparable property (the Owen Street property). The experts agreed that one did not need to be concerned about adjusting for prior sales because they had agreed on the most comparable sale when assessing the value of the subject property in October 2024 (29/10/25; T 278). However, Ms Kerswell considered that Issue D remained relevant, even with agreement as to the comparable property, saying that her analysis of the sale of the Owen Street property was partially shaped by how she had interpreted other sales evidence and that, because some of that sales evidence was dated, she had had to make adjustments for market movements to it. Ms Kerswell explained that there was some dispute about how to bring those dated sales back to the date of valuation and how to account for the market

movements that occurred from when they did sell (29/10/25; T 278). Ms Kerswell argued that one should look to a broader pattern of comparable evidence as opposed to relying solely on the closest comparable sale, arguing that this was how the market movements argument “comes into play” (29/10/25; T 278). Mr Field strongly disagreed with the proposition that the analysis of market movements provided a good indication of value (29/10/25; T 279). Mr Field did not think that earlier sales were particularly relevant when analysing the key sale in determining which property (the subject property or the comparable property) was superior or inferior (29/10/25; T 279). He did not believe that what happened in 2022, for instance, was particularly relevant to analysis of the sale in 2024 of the Owen Street property (29/10/25; T 279). Thus, while he accepted that it was appropriate to consider a range of sales which set the lower end and the upper end of the market value range, Mr Field attributed less weight to sales in 2022/2023 (29/10/25; T 279). Mr Field explained that, in the eastern suburbs, adjustment for the market movement would be “fine” if one had hypothetically two identical properties, so that if one sold a year earlier the question would be “well how much did it go up by in that last 12 month period” (29/10/25; T 279), but he considered that one should attribute “cautious

reliance” upon third party statistical gross rates and using such adjustments, which he said may or may not be correct (this being a reference to the CoreLogic metrics which Ms Kerswell had used) (29/10/25; T 280). Ms Kerswell did not disagree with Mr Field’s above observation (29/10/25; T 280). Ms Kerswell considered that less weight should be placed on dated sales evidence that had been adjusted for time but maintained that it was nevertheless very relevant (29/10/25; T 280). Ms Kerswell said that in her first valuation report she had selected sales evidence in locations very comparable to the subject property (avoiding streets that were not very comparable to that of the subject because that required the making of very discretionary and very subjective adjustments) (29/10/25; T 280). Ms Kerswell considered that, where there is a paucity of comparable sales evidence, “if you must make an adjustment, … it is safe as to make an adjustment for market movements, because it is the adjustment that requires the least amount of subjectivity and discretion” (29/10/25; T 280). Ms Kerswell disagreed with Mr Field’s criticism as to the reliability of CoreLogic’s figures, saying that in her experience she had found them to be quite reliable in most circumstances (29/10/25; T 280). Ms Kerswell distinguished between a “very prestige property” at the upper end of the market (for which she

did not think the CoreLogic analysis should be used) and “a relatively standard house in North Bondi” (saying that in these circumstances it was appropriate to use market movements) (29/10/25; T 280). Ms Kerswell also referred to the re‑sale of one of the properties that both experts had deemed to be comparable (a property at Murriverie Road, North Bondi), which had first sold on 2 December 2023 for $8.1 million when it was brand new (29/10/25; T 280-281). Mr Field had drawn her attention during their conclave to the re-sale of that property on 1 July 2025 for $8.04 million (29/10/25; T 281). In what Ms Kerwell herself described as a convoluted analysis that had only occurred to her after the conclave and joint report, Ms Kerswell said that, if one adjusted the first sale (downwards) by 10% to account for the premium for brand new properties and then applied pro rata market movements for North Bondi from the CoreLogic report, the difference was around $100,000.00 off the price for which the property actually sold (29/10/25; T 281). Ms Kerswell relied on this as demonstrating that the market movements were quite close to what the market had actually done (29/10/25; T 281). Ms Kerswell accepted that market movements were not “perfectly accurate” but emphasised that valuation “is a bit of an art as well as a science” (29/10/25; T 281). Asked as to the statement made by her in the

joint report that she had adjusted the Murriverie Road sale “upwards to 8.485 million”, Ms Kerswell said that that was how she had actually interpreted that sale in her first report but that there was a separate issue as to how the re‑sale (at $8.04 million) could be interpreted and that what she was saying was that the re‑sale could be used to validate those market movements (29/10/25; T 283-284). Ms Kerswell did not suggest that the re-sale indicated that the market had gone down between 2023 and 2025. Rather, she said (29/10/25; T 284): WITNESS KERSWELL: I, I haven’t looked at it that way. So I have, so I’ve compared - so the way that I have compared the sale and the re‑sale against the market movements in the suburb statistics report is I have looked at that initial sale, I have adjusted it down for the 10% newness premium, and then I have pro rata’d the market movement adjustments in the suburb statistics report which is annexed to our joint statement, and it aligns with what the re‑sale has actually done. So if, if the median house price movements for North Bondi in the report annexed to the back of our joint statement are used, it aligns with what a re‑sale has actually done. Mr Field, who did not agree with the CoreLogic figures, said that the CoreLogic figures suggested a market change of median values until September 2021 of 53% (29/10/25; T 285). Mr Field was firmly

of the view that those figures were incorrect (29/10/25; T 285). He said that the market in this locality certainly did not change by anything like that during that time period (29/10/25; T 285). Hence, he argued that these figures were not reliable. Second, Mr Field said that, in terms of the eastern suburbs, it was much better to look at specific examples and compare how one property compares with another than to look at averages and medians (29/10/25; T 285). Mr Field explained that North Bondi was a very specific market (with “far superior parts” and “far inferior parts”) and said that, to suggest that the area had all gone up at this percentage, one would need to assume that it was the “same basket of sales that also would have sold” (29/10/25; T 285). Mr Field said that hypothetically there could be a different selection of sales at one point in time and a different selection of sales at another point in time; and he said that this did not mean that they were all “homogeneous and similar” so as to be reliable (29/10/25; T 285). Mr Field accepted that, based on the sale and re-sale of Murriverrie Street in isolation, this would suggest a nil or nominal market movement between December 2023 and July 2025 but pointed out that one does not know the background behind that sale (suggesting that hypothetically there might have been a situation where there was an anxious vendor)

(29/10/25; T 286). Hence, as I understood it, Mr Field’s position was that one could not draw too much from that one re-sale and one would need to look at other sales to see whether there had actually been market movement. Mr Field accepted that CoreLogic was well respected in terms of its data but said that in his professional opinion to rely upon such data one could end up with “analysis paralysis” (29/10/25; T 285). Mr Field considered that there were some particularly relevant points if comparing the Murriverie Road property with the subject property (which he considered to be more relevant than the market movements analysis). First, that the locations were not the same (29/10/25; T 285). Mr Field pointed out that the subject property is in walking distance of the local synagogue. He considered it particularly relevant in this “specific niche market” to buyer sentiment that the subject property was much closer to the local synagogue than the property at Murriverie Road (29/10/25; T 285). Second, that the Murriverie Road property was a new home when first sold (29/10/25; T 285). Mr Field agreed that new properties generally might or would attract a premium and was of the view that, from the photographs, it looked aesthetically extremely pleasing and attractive (29/10/25; T 285). Third, he pointed out that it was a significantly smaller dwelling than the subject property

(approximately 180 (or 200) square metres as opposed to the subject property which was around 330 square metres) (29/10/25; T 285). Ms Kerswell’s position (as indicated above) was that one could not use dated comparable sales evidence without considering market movements because to do so would be too unreliable. Ms Kerswell considered that the re-sale of the Murriverie Road property aligned with the suburb statistics (29/10/25; T 287). Ms Kerswell also said that care should be taken to pro rata the market movements from CoreLogic because they are rolling statistics (so the median house value is taken at a certain point in time each year and there is then a percentage increase or decrease which is derived from the difference in the median house price between those two points in time) (29/10/25; T 287). Ms Kerswell emphasised that, from her perspective, the re-sale of Murriverie Road property aligned “with what the market movements are saying”, which made her think that they were reliable (29/10/25; T 287). Mr Field’s opinion was that, if one were going to adjust for market movements, then analysing not one but a number of sales which have sold and resold (if one could find such evidence) would provide a better, more reliable, safer benchmark than relying upon CoreLogic statistical data because if one is looking at a sale and re-sale then one is comparing the same property at

different points in time (29/10/25; T 288). Counsel for Scopeview took Mr Field to the CoreLogic data which identified a change in median house value of 9.7% at September 2025 (from which the 53% increase from September 2021 had been drawn) (29/10/25; T 288). Counsel suggested that the CoreLogic data could be used as a check against a predicted value of a property in the sense that, if one had arrived at an increase of, say, 44% in 2024 when the rest of the suburb had increased by only 5.8% that would tend to suggest that there was something wrong with the estimate (on the basis that the same property would not increase by 44% over that period) (29/10/25; T 288). Mr Field accepted that in some instances very cautious reliance could be placed on the data but said that he would certainly not be basing any decisions (buying decisions in terms of what to pay for a property or to advise a client what to pay for a property) upon such adjustments (29/10/25; T 289). Mr Field considered the data relevant in terms of background research and understanding the local market in which one is operating and valuing (29/10/25; T 289). Mr Field said that if there was a lack of sales then adjusting for market movement would be relevant so long as one adjusted for all the qualitative and quantitative factors accordingly (referring to [20.5] of the international valuation standards as well)

(29/10/25; T 289). Mr Field emphasised that in his opinion, in the present case, sales in 2024 were more relevant and did not require adjustment for time or adjustment by third party sources (29/10/25; T 289). Mr Field said that one could adjust for other merits (which he said was the expertise of a valuer) and considered that to be more reliable than adjusting in this case for passage of time over a two-year period, especially when the properties are not identical (29/10/25; T 289). Mr Field’s attention was directed to his first report in which he had assessed the current market value of the subject property as at 6 February 2023 at $6 million and to his second report, in which (at [21.1]) he assessed the current market value as at 22 October 2024 at $8.6 million. (I note that in the second report at [16.3] Mr Field revised his current market value assessment as at 6 February 2023 to $6.6 million.) Assuming the period of time between 6 February 2023 and 22 October 2024 was 624 days or approximately 1.7 years, it was put to Mr Field that this represented a 43% increase in 1.7 years (29/10/25; T 291). Counsel for Scopeview then compared this with the CoreLogic data figures in the period from 2023 to September 2024, which recorded a change in median value in the year to September 2023 of 8.8% and in the year after to September 2024 of 5.8% (29/10/25; T 291). As to the revision

from $6 million to $ 6.6 million, Mr Field said that, subsequent to the conclave, having reviewed Ms Kerswell’s report, he turned attention to what he thought was the most relevant sale in February 2023 (29/10/25; T 292). Mr Field said that, while one would not base it on one sale in particular, in his opinion the most relevant sale (with the benefit of hindsight) would be comparable sale 7 in Ms Kerswell’s report (that being a property in the same street, same size land, same side of the street and with a number of similar attributes) which sold in April 2022 for $7.25 million (29/10/25; T 292). Mr Field said that, in that pocket of North Bondi, this was probably one of the highest sales around that time up until the date of valuation (29/10/25; T 292). While Ms Kerswell’s report stated the area of that comparable sale at 350 square metres of house, Mr Field noted that the CoreLogic RP Data noted this as being 228 square metres and, on his own calculations based upon the floor plans, adding up the individual rooms, and allowing for thickness of walls and passageways, he believed the CoreLogic data to be approximately correct (29/10/25; T 292). Mr Field noted that this property has a double carport (not a double garage), a smaller internal area and said that it is inferior in that it is clad (29/10/25; T 292). Mr Field said that the market may potentially have softened between

then (April 2022) and early 2023 but, looking at that sale, the range of modern type homes in this pocket in North Bondi at that time was roughly $6.1 million to $7.25 million (29/10/25; T 292-293). Mr Field agreed with Ms Kerswell’s assessment that this comparable sale would be inferior to the subject property (29/10/25; T 293). So Mr Field said that, while he had (in his second report) amended his current market assessment as at February 2023 to $6.6 million, if he were doing that exercise again, in terms of what was the market value or the correct market value in early 2023, he would probably reassess the market value of the subject property as at 2023 (focussing on Ms Kerswell’s comparable “sale 7” as the most relevant) at a figure “north of $6.6 million” (29/10/25; T 293). Counsel for Scopeview pointed out that, on the revised $6.6 million figure as at February 2023, there was an increase between the two figures ($6.6 million and $8.6 million) of $2 million, which over the period would equate to a 30.3% increase over 1.7 months, when the CoreLogic data suggested that the market movements in that period were approximately in the range of between 5% and 8% (29/10/25; T 293). It was put to Mr Field that this suggested that, whatever his reasoning, there was something that had gone wrong in his valuation process (either the starting figure of $6.6 million was incorrect or the

end figure of 8.6 million was unreliable) (29/10/25; T 293). Asked whether he would accept that as a proposition, Mr Field said (29/10/25; T 293-294): WITNESS FIELD: I’ll give you a yes and no answer but if I can explain that? In terms of the way you’ve put it I would answer no. The exercise in 2023 - and the exercise in late 2024, a valuation is based upon evidence as at a point in time. It’s a different selection of sales, in my opinion, that would be relevant at each respective point in time. Each one is respective and a separate exercise. The valuation in early 2023 based upon the evidence available at that time. Putting that aside. As of October 2024, what is the market evidence now, what are similar properties selling at that point in time, what is the value then? It’s - rather than trying to determine how much the market may or may not have increased and by what percentage, I don’t think is necessarily a reliable benchmark, unless that data is accurate. In terms of the question that you’ve just put does the $2 million sound significant? The answer is yes. Although if I were to look at the sale of [another property in Gilgandra Road] in isolation I would suggest that maybe the answer is no, which is a sale in the same street, off market, but increase in a relatively short amount of time, being renovated from 3.1 to 6.4. In this instance though, as I’ve just indicated to

the Court, if I was reassessing the value as of early 2023 I would suggest it most likely I would reassess it at a higher figure than the 6.6 million based upon the sale at [another property in Gilgandra Road], which even though it was a year earlier, even though the market may have softened, the attributes are very similar but the subject property is - it’s a rendered brick house, it has superior accommodation, superior bedrooms, bathrooms, living area, parking, construction. That would suggest to me, if I was looking at that particular sale, which I have done, I would agree with Ms Kerswell that that is inferior to the subject property. Ms Kerswell said that she had not really had the opportunity to review the initial report in detail and had not conducted her own valuation or her own review of the comparable sales evidence but that, on the face of it, based on the difference between Mr Field’s valuations at those two dates this would indicate that something was wrong (29/10/25; T 294). Ms Kerswell said that, in reviewing valuations at different points in time, her first starting point is to look at the market movements for the suburb; and Ms Kerswell said that, while it was not necessarily a perfect indicator that something has gone wrong, this “would sort of raise an alarm, alarm bells for me” (29/10/25; T 294). Issue E was described in oral submissions as the “main event”,

that being the analysis of the agreed comparable sale (the Owen Street property) (29/10/25; T 294). As indicated above, Mr Field assessed it as inferior to the subject property; Ms Kerswell assessed it as superior to the subject property. It was not in dispute that this comparable property sold for $8.126 million on 4 August 2024. Ms Kerswell had relied for her assessment of the comparable property on photographs from the real estate listing of that property (29/10/25; T 295). Mr Field had driven past the property during the course of the conclave and had taken photographs of both it and the subject property for comparison (29/10/25; T 296). As to the attributes of the two properties, the following were noted. First, the comparable property has a single carport (albeit described by Ms Kerswell as being a triple carport) where two cars could not be parked side by side (29/10/25; T 297), whereas the subject property has a double garage with internal access. Mr Field clarified that the Owen Street property has a single undercover car space with an open car space immediately in front (so that one would need to get one car out to get another in or out) and that there was a potential third car space (in the yard where there was a trampoline immediately behind the hedge) (29/10/25; T 298). Ms Kerswell did not cavil with that. Mr Field said that there was potential for two to three car

spaces, but it was not as practical as a double garage with internal access (29/10/25; T 298). Mr Field was of the opinion that a double garage with internal access was extremely appealing, especially in the prestige market, as opposed to a single undercover car space (29/10/25; T 303-304). Second, that the subject property is in a cul‑de‑sac (which in Mr Field’s opinion was safer, quieter, and would be more appealing to families, especially with young children) and north facing to the rear (29/10/25; T 299). Mr Field noted that outside the front of the subject property there was a basketball hoop where children could safely play immediately outside that property; and that one could park in front of the garage (29/10/25; T 299). Third, that the comparable property is on the corner of its street (29/10/25; T 298). The joint report noted that this property had a superior street frontage, being on a corner block. Mr Field described this position as being inferior for a couple of reasons: first that it was more exposed (and not in his opinion as safe if one has young children); and second, that the side street lacked the same appeal as Gilgandra Road (29/10/25; T 299). Also, Mr Field noted that there was a very small substation across the road of the comparable property, but he thought that was minor (29/10/25; T 299). Ms Kerswell, asked as to whether the comparable property is

more exposed than the subject property and whether that is a factor that she would take into account, said (29/10/25; T 305): WITNESS KERSWELL: Well it means that it has a superior street frontage. So street frontage is important from the perspective that it means that the house has a better profile from the street, and I suppose, especially in prestige suburbs, there is a tendency for the person purchasing the house to pay a little bit more to have, you know, a, a more impressive house, which can be seen from, you know, it, it has more street frontage. So that is something that would be more desirable. Just to Mr Field’s point about safety, just given the location of the house and the suburb that we’re talking about, I really don’t think that that would be a massive consideration. I, I, I don’t think that potential purchasers would be looking at that house and thinking that it posed a safety risk for, for their family. I think that they would just be thinking that it looks quite impressive from the street, and more of the house is visible than most of the other houses on the street. Fourth, that the subject property is within walking distance to a synagogue. Mr Field identified this as a key point, saying that the street was known as a popular local street because of the close walking distance on Shabbat to the local synagogues on Old South Head Road (29/10/25; T 299). As to

this aspect of its location, Ms Kerswell said that she thought that the location was quite comparable and that weight should be placed on real estate listings as well because real estate agents will generally bring attention to desirable locational characteristics (such as proximity to cafes) and she did not recall seeing reference in the listing description for the subject property to its proximity to the synagogue (29/10/25; T 300). In response to a question from counsel for Ms Rayman, Ms Kerswell said that she had considered proximity to synagogues when considering location, but she did not think it made a substantial difference to value (29/10/25; T 305). Ms Kerswell considered other locational factors to be much more relevant (29/10/25; T 305). Fifth, a factor to which Mr Field attached some significance, to the rear of the comparable property, approximately 20 metres away, there is a three‑storey block of flats looking down onto the comparable property (29/10/25; T 299). Mr Field said that the comparable property was semi‑shielded by trees at the back in terms of privacy, but said that in his opinion the comparable property had less privacy and less appeal not just from the parking aspect but also from a location aspect (29/10/25; T 299). Finally, that the subject property has an extra bedroom and two extra bathrooms (29/10/25; T 299). It also has an extra level (the

merits of which were a matter of some debate in oral submissions). Asked by counsel for Ms Brown whether an additional level was an advantage, Ms Kerswell responded (29/10/25; T 304): WITNESS KERSWELL: I suppose sometimes, because it means that a living area of the house is essentially partitioned and it can be desirable for families, but I suppose - so all things considered, if we were looking at houses which were identical in all respects, except one had an extra level and one didn’t, and it was, you know, a family home that was going to be used by a family, then I think that it would be superior on that basis. But the thing is, this sale [i.e., the comparable property] has vastly more land than the subject; vastly more street frontage, and I just think, on balance, those things are more valuable than an extra level. Counsel for Ms Brown then asked whether, if one had a home that was 300 square metres on one level, or two levels, and one had to change the configuration of the land and got a home that was 300 square metres but it needed three levels to do that, that would necessarily be an advantage (29/10/25; T 304). Ms Kerswell said that it depended on the specific configuration of the house, how the floor plan was designed, and also “really” the market for that house (29/10/25; T 304). In view of that answer, I can place little weight on the argument for Ms Brown that the

“flow” of the house in terms of the number of levels was significant as opposed to the overall area of the house. Pressed as to whether an additional level was something that in Ms Kerswell’s mind was a factor that would drive her assessment (as to whether a property was superior or inferior) either one way or the other, Ms Kerswell answered (29/10/25; T 304-305): WITNESS KERSWELL: It really depends. It, it depends on other factors, as well. I mean, I suppose you have to look at - you have to look at the house wholistically, and you also have to really look at the market for the house and what the market values, because, I mean, just because you have a, a feature of the house, and, you know, just because something is additional, doesn’t necessarily mean that that shows up in the market value. Counsel for Scopeview cross-examined Mr Field as to the premium he had applied to reflect his conclusion that the subject property was superior to the comparable sale (that premium being approximately 5.8% above the sale price of the comparable sale). Mr Field agreed that what divided him and Ms Kerswell on that premium was the weighting that Mr Field gave to the various advantages that he had described and the particular weighting that Ms Kerswell gave to such things as the larger land size and frontage of the Owen Street property (29/10/25; T 302). Counsel for Scopeview noted that the

5.8% premium applied by Mr Field equated to $474,000.00 (as set out in paragraph L of the joint report) (29/10/25; T 302). It was noted that the difference between the experts’ final opinions as to the value of the subject property was $525,000.00 (Mr Field assessing it at $8.6 million and Ms Kerswell at $8.075 million), suggesting that the premium Mr Field had applied to the advantages of the subject property (5.8% premium) accounted for $474,000.00 worth of the difference between the two experts (29/10/25; T 302). Asked as to the basis upon which he reached a 5.8% premium based on his weighting of the advantages, Mr Field said (29/10/25; T 303): WITNESS FIELD: I assessed the market value at 8.6 million; that reflects a premium of 5.8%, rather than determining that it reflects a precise adjustment of 5.8%. I believe it’s - the subject property, the market value would’ve been 8.6 million. In terms of that adjustment of 5.8% and what that reflects, one of the key points that Ms Kerswell pointed out, in terms of its configuration, and I agree configuration, functionality, a couple of terms that have come up before in flow. The subject property has [a] double garage with internal access. It’s extremely appealing, especially in the prestige market. When people are spending in excess of $8 million it would be expected that people have at least two cars, and quite often luxury cars.

So to have a double garage with internal access, to many buyers, it’s a mandatory, or I would call, boxes to tick, as opposed to the additional land, which is beneficial, but not essential. So in terms of the double garage with internal access, to me that is probably the key point that sets the subject property apart from this property, as well as the other issues, as aforementioned, such as additional bedroom; additional bathrooms; additional level; north facing aspect; close to the synagogue; quiet cul-de-sac, et cetera. When you combine all those attributes, I appreciate that 42 is a larger property and - in terms of land size, and I think that’s a particularly relevant point of distinction. However, the subject property, in my opinion, all those positives far outweigh the difference in the land size, and I think the subject property, for those reasons, is superior and would warrant a premium. In response to that, Ms Kerswell’s only comment was as to the issue of parking (29/10/25; T 303): WITNESS KERSWELL: No. Just to the parking point. I’d just like to draw attention to the car that is in the garage that Mr Field has taken a photo of. It, it is just really just a very standard car. I mean, we’re sort of looking at homes that would be occupied by families. I don’t really think, you know, the consideration that you need a place to house luxury cars is, is too relevant. I

don’t think that parking is, is more relevant than, you know, for instance land, or street frontage, as a feature, and for that reason, I wouldn’t put much weight on it. Mr Field said that on that point he strongly disagreed, saying that (29/10/25; T 303-304): Just so it comes down to a simple, what buyers look for in functionality; a double garage with internal access is extremely appealing, especially in the prestige market, to a single undercover car space. Mr Field was questioned by counsel for Ms Brown as to the assumptions on which his valuations were based. It was suggested that there were two assumptions, that the subject property was in good condition and that there were no structural problems (29/10/25; T 307). (In fact, the joint report states that the valuations were “based on the assumption that the property was in the same structural and physical condition to what it was on 27 April 2020” (i.e., as if it had not been damaged by the vibrations or earthworks on the Brown Land).) That said, as noted earlier, Mr Field’s individual reports had proceeded on the assumption that the property was “in good condition”. Counsel for Ms Brown asked Mr Field to confirm that the agreement between Ms Kerswell and him was that, at the time that the subject property was sold in October 2024, it sold at market value of $7.45 million (29/10/25; T 309). Mr Field said (29/10/25; T

309): WITNESS FIELD: It was agreed that what the property sold for would reflect the best evidence of value and in this instance we both agreed that that would reflect essentially the best evidence of value and therefore most - best indication of market value. The reason why I qualified that is because there may be various issues, risks, imponderables, et cetera, one doesn’t know with certainty hypothetically, or I certainly don’t know, if the buyer was aware of all of the issues. Obviously they were aware of some of the issues. Were there [sic] aware of all of the issues? But in this instance we agreed that was the market value because that’s what it sold for. Asked whether he had assumed that the purchasers were cognisant of all the issues, had taken that into account and that that reflected the market value at that time, Mr Field said (29/10/25; T 310): WITNESS FIELD: I would assume so, however in this case for this specific property a building report may not suffice. It might be necessary because of the issues which I’m aware of that it may have been hypothetically appropriate to get a structural engineering report or a QS report, and was that done? I don’t know. But without the benefit of all those details in this instance I would agree what the property sells for is the best - the market’s been tested and that’s probably the best evidence of value. Counsel for Ms Brown

asked whether, applying an adjustment as he had said, Mr Field’s evidence was that the subject property “really ought to have sold for 8.6” and sought an explanation as to how Mr Field “got from the market value agreed” between the experts that it sold for the right price at $7.45 million to the conclusion that it ought to have sold for $8.6 million (29/10/25; T 310). (The premise of that question does not seem to take account of the different scenarios – i.e., that it sold in October 2024 in the condition it was after the damage had occurred and that the notional valuation was as to the market price if the damage had not occurred.) Mr Field’s response to that question was, in effect, that he valued the property as per the instructions as at the point in time when it was sold, assuming that there were no issues and it was in good condition and that there was no “stigma” (29/10/25; T 311). Mr Field explained that, from personal experience, when property is subject to litigation that could be a deterrent to other buyers, on the basis that there may be unknown issues, stigma and cost (29/10/25; T 311). Mr Field said that the figure of $8.6 million was based upon sales of other properties “which are similar, unaffected” (29/10/25; T 311). Mr Field said that (29/10/25; T 311): I haven’t taken an adjustment to allow for damage but, but not for the issues I’m of the opinion it

would’ve sold for 8.6 million had it been in good condition without warning, warning signs in red neon lights in a contract saying, “Subject to litigation. Make your own inquiries”. Would that be a detriment to the markets? Would it be a turnoff to potential buyers? Absolutely. Would buyers be deterred? Sure. Why buy this property? Buy another property. It would be logical that that would have an impact on the value, not just unknown costs of rectification, potential unknown issues. Without the benefit of having a structural engineering report and a QS report you wouldn’t know those issues. As a professional expert I wouldn’t know those issues without those reports. And would it have a stigma associated in terms of the mindset of a buyer buying a property knowing that it’s had issues? It’s like buying a car that’s been in a car crash. Might’ve been fixed up. Would you still want to pay the same price had it not had an accident? No. Certain things are issues and would be a detriment to a buyer looking to buy a prestige property. Mr Field agreed that the difference between the $7.45 million and the $8.6 million figures was because he believed that the $7.45 million figure was depressed as a result of the fact that there were “issues” (29/10/25; T 311-312). As to Issue F, the assessment of market value as at 23 October 2024, assuming the property was in the condition it was

actually sold in, it was agreed that this did not need to be dealt with (29/10/25; T 294). Both experts agreed in conclave that the value of the subject property as at 23 October 2024, assuming it was in the condition that it was actually in when sold was $7.45 million. Issue G related to what were described in submissions as minor matters (and in the joint report as “additional comments about various differences” between Ms Kerswell and Mr Field’s respective reports). In the concurrent hearing, reference was only made to one such matter (Ms Kerswell’s reference to her membership of the Australian Valuers Institute (AVI) and that she was not subject to the Australian Property Institute (API) guidance papers and standards). In oral submissions, Counsel for Ms Rayman clarified with Ms Kerswell her reference (at 30) to an API code of conduct (29/10/25; T 306). Ms Kerswell explained that this was a reference to the Australian Property Institute (29/10/25; T 306). Ms Kerswell said that a bank valuer essentially had to be a member of the API (29/10/25; T 306). Ms Kerswell on the other hand is a member of the Australian Valuers Institute (AVI), which she explained had a “different configuration” (29/10/25; T 306). Ms Kerswell said that most of AVI’s valuers actually did not do mortgage and lending work; and she thought that this flowed into the code of conduct and how the institute’s

guidelines were structured (29/10/25; T 306). This related to Mr Field’s reference to the API guidelines for restricted assessments, which state that the valuer should give a range (29/10/25; T 306). Ms Kerswell said that the reason for that is because if a bank is lending against a property and the valuer has not had the benefit of an internal inspection it poses a risk from a lending perspective (29/10/25; T 306). Ms Kerswell said (29/10/25; T 306): I think that in general circumstances if I was to carry out a valuation where I hadn’t internally inspected it and where I didn’t have sound assumptions that I could make about the internal inspection then I would probably deem it appropriate to give a range, but in these circumstances I’ve had the benefit of two other valuer’s inspections and two other valuer’s reports. So I think that, yeah, both of those reports, they, they haven’t differed in their assessment of the internal condition of the property so I, I, I don’t really think that there’s much risk associated with not giving a range. However, Ms Kerswell said that she had never done a valuation for a bank before (29/10/25; T 306). Asked if it was her understanding that the API code required provision of a range if one could not internally inspect the property, Ms Kerswell said that (29/10/25; T 306-307): WITNESS KERSWELL: Yes, but it’s usually because if you were doing a

bank valuation there is usually much less information available about the internal condition. So a bank valuer would generally not be supplied with detailed inspection notes and inspection photos which detail the internal condition of the property. Asked if she were to give a range what that range would normally be by way of a percentage, Ms Kerswell said that (29/10/25; T 307): WITNESS KERSWELL: I - well, it’s usually to account for risk. So the way that I would personally do it, I would think what are the unknowns? I mean, what, what am I not sure about? Where is the risk in the, the assumptions on which I’ve based my report? And I would try and give a range that essentially mitigates that risk. But in these circumstances I don’t really think that that risk exists because Mr Field and Mr Chaloner seem to have quite comparable views of the internal condition of the property. Mr Field said that the API Code was not just about doing work for the banks (29/10/25; T 307). Mr Field explained that he was a member of the API Professional Standards Committee (29/10/25; T 307). Mr Field said that the reason why the API recommends providing a range is because, without the benefit of an internal inspection, it is not deemed by the API to actually be a formal valuation report; it is a restricted assessment and a qualified restriction assessment (29/10/25; T 307). Mr Field said that it was

because of those qualifications that the API recommends that a valuer provide a range, known as an indicative range, as opposed to formal valuation which requires a specific single figure (29/10/25; T 307). Ms Rayman’s submissions as to valuation evidence Ms Rayman submits that both valuation experts were appropriately qualified and did their best to assist the Court. Ms Rayman submits that the evidence of Mr Field should be preferred for the following reasons. First, Mr Field has been a valuer for more than 22 years, compared to Ms Kerswell who has around 3 years of experience. Second, Ms Rayman says that Mr Field conducted a far more thorough investigation of the Rayman Home prior to sale, noting that Mr Field inspected the home on 6 February 2023 while it was in its damaged state and was also able to inspect it again on 22 October 2024 after cosmetic repairs had been carried out. Third, Ms Rayman says that Mr Field conducted a far more thorough investigation of the most comparable property at Owen Street (including driving by that property and taking further photos of it at around the time of the conclave). By reason of those matters, Ms Rayman submits that Mr Field’s opinion regarding valuation is more reliable than Ms Kerswell. Further, Ms Rayman submits that there were troubling aspects of Ms Kerswell’s evidence: first, that having an extra 17.5 square metres of living

area (an increase of 5%) will result on Ms Kerswell’s analysis in a nil increase in the market value of that property; and, second, Ms Kerswell’s opinion that a property that has an extra bedroom, two extra bathrooms, is further away from the beach and synagogues and is not in a quiet cul-de sac-is superior to the Rayman Home. Ms Rayman says that Mr Field’s evidence on central issues was cogent and measured, the clearest example being that a double garage with internal access is a key point that would set the Rayman Home apart from others in the area. It is submitted that Ms Kerswell’s response that she would not place much weight on a double garage with internal access was unreasoned. Ms Rayman therefore submits that the diminution in value by reason of the damage caused by the construction works carried out on behalf of Ms Brown should be found to be $1,150,000.00 by reference to the opinion of Mr Field. Ms Rayman points out that there is objective evidence that the purchaser of the Rayman Home was aware of the defects, noting the terms of the contract for sale and the written communications from the purchaser on 1 and 4 October 2024 (before the contract was entered into) demonstrate that the purchaser was aware that rectification work would have to be carried out and that it would cost a minimum of $500,000.00. Ms Brown’s submissions as to valuation evidence Ms Brown submits

that the quantum of Ms Rayman’s claim is based on the primary assumption by Mr Field that the Rayman Land was in good condition; an assumption which Ms Brown disputes. Ms Brown contends that the property was in a derelict condition (31/10/25; T 430). Ms Brown’s criticism of the condition of the home presumably relates in substance to the evidence that the footings were in a defective state but the pre-existing damage to which Ms Brown points also includes the waterproofing problem affecting the front and back balconies and the need for painting and general maintenance (see [822] above for the more specific criticism of the state of the home prior to the excavation works). Insofar as both experts agree that the value of the Rayman Home should have been between $8-8.5 million at the time October 2024. Ms Brown argues that diminution in value should be assessed at the time of the damage (i.e., April 2020) and that damages must be limited to the incremental reduction in value caused by the sheet piling vibration. Pausing here, the exercise by the valuers of assessing the market value of the subject property as at the date of the sale in October 2024 proceeded on alternative assumptions: relevantly, that the property was in the same structural and physical condition as it had been on 27 April 2020 (see [822]-[824]; [873]), i.e., undamaged by the excavation works; and then in the

condition that it actually was at the time, i.e., damaged by the excavation works. Thus, the assessments were in effect as to the value of the property immediately before and immediately after the damage for which the defendants have been found to be liable and the criticism of the approach adopted by the valuers has no force. Rather, Ms Brown’s real complaint appears to be that insufficient consideration was given by the valuers to the sub-standard state of the property. Ms Brown nevertheless criticises the “extrapolation exercise” in which she says the valuers engaged, after agreeing that the property was sold for market value at $7.45 million in October 2024, to determine whether or not the home “ought to have been valued at a higher sale price and try to determine why that would be”. Pausing here, I do not find the concept of what the home ought to have sold for – as was put in the course of cross-examination of the experts – as particularly useful. The exercise of determining market value as at a particular time is one of determining the price that a willing but not anxious buyer would pay and a willing but not anxious vendor would accept; not a price for which a property “ought” to sell. Further, insofar as Ms Brown submits that the disagreement between the valuers as to which of the comparable and subject properties was the superior or inferior one (and the reasons for

those views) demonstrates that the “extrapolation exercise” is tenuous and unreliable. Such a criticism could be made of any valuation process which is based on comparable sales. It involves a subjective assessment informed by experience in property valuation. It is not a reason for rejecting the outcome of the process altogether. Ms Brown also raises as a concern that, in dealing with statistics, the greater the sample the more reliable the statistic or extrapolation would be and that here, as noted, the extrapolation is predominantly driven by two properties that may be viewed “vastly differently” by the public. Ms Brown says that the data in the present case is at best unreliable. In this regard, I would note that both valuers accepted that the range of comparables was limited and the difficulty where that was the case (although each had considered a number of other properties) but that is a function of the volume and type of sales over the relevant period in the appropriate area (not a reason to reject their analysis even though it might suggest some caution should be adopted in relation to the outcome of their analysis). Ms Brown argues, by reference to the above, that the approach adopted by Ms Kerswell is appropriate (by reference to data as to market movements from which to make relevant adjustments). Ms Brown is highly critical of the approach adopted by Mr Field.

First, Ms Brown says that his fluctuation in the value of the home in 2023 (first stating that it was valued at 6,000,000, then stating that it was $6.6 million and ultimately contending in court that it was “north” of $6.6 million) indicates that his approach is “questionable” and “unreliable”. Ms Brown, as does Scopeview, argues that the increase in the value of the Rayman Home, on Mr Field’s valuations, over a period of about 18 months suggests a significant distortion (Ms Brown calculating the projected increase on Mr Field’s assessments of value as at February 2023 and October 2024, based on his initial valuation of the property at 2023 of approximately $6 million, as being some 43%). I deal with this argument in due course. Ms Brown goes further and says that the only reasonable explanation for Mr Field’s approach is that he was attempting to justify his extrapolated value of $8.6 million in 2024 because that would on those calculations afford Ms Rayman a loss in diminution of approximately $1.2 million. Insofar as Ms Brown is here in effect impugning the integrity of Mr Field’s valuation exercise, I cannot accept that. Mr Field did not present his assessments in a partial or biased way; he put forward what to my mind was a cogent and reasoned analysis for his views. Insofar as he had changed his initial assessment of the value of the property as at February 2023 (twice),

I accept Mr Field’s explanation as to the reason for those changes. I regarded him as a competent and experienced valuer who made reasonable concessions in the course of cross-examination. He did not present as some kind of “gun for hire” nor was his analysis devoid of logic or reasoning. Ms Brown notes that, in cross-examination, Mr Field conceded that the “upward extrapolation” was due to the fact that the market value at $7.45 million for which the house sold was “depressed” due to the issues relating to the sale of the property subject to Supreme Court proceedings. Ms Brown complains that there is no identification of the issues to which Mr Field there referred or how they might have influenced the buying public. Ms Brown says that the only document that gives light to this is the instruction to the agency that was to sell the home by private treaty which indicated that the house was in good condition and that there were no adverse material factors that a purchaser would take into consideration. Ms Brown says that there is no admissible evidence that suggests the subject property is likely to be the subject of rectification costs and therefore she submits that there are no identifiable issues that are likely to have adversely influenced potential buyers. I do not accept the criticism of Mr Field in this regard. Certainly, he accepted that the litigation would have had a

negative effect on purchasers in general (giving his personal views on that). With respect, that seems to be common sense – a potential purchaser might well not wish to be exposed to involvement in litigation over a property even if the “issues” arising in that litigation were not made clear to the potential purchaser. The reference in special condition 35 of the Contract to the “ongoing legal proceedings” identified the subject of the current legal proceedings as “[t]he whole of the Land and its improvements”. Further, special condition 38, headed “Sold “As Is””, expressly precluded the making of a claim or requisition, delay in completion, rescission or termination because of anything in connection with, inter alia, the condition or state of repair of the property of any part thereof or the improvements thereon, which effectively put potential purchasers on enquiry as to the condition of the house (even though it may have been marketed as being in good condition). As to the complaint that there is no admissible evidence suggesting that the Rayman Home was likely to be the subject of rectification costs, this ignores the fact that the ultimate purchasers’ own assessment (whether that be correct or not) was that it was necessary to budget for such costs. Scopeview’s submissions as to valuation evidence Scopeview submits that the valuation of Ms Kerswell should be preferred to

that of Mr Field for the following reasons. First, Mr Field’s valuation reflects a 5.8% “premium” ($474,000) for the Rayman Land over the most relevant comparable sale (the Owen Street property) based on what Scopeview describes as an essentially subjective assessment of factors such as the desirability of the double garage, cul-de-sac location and proximity to the synagogue over the Owen Street property’s larger land size and street frontage. It is submitted that Ms Kerswell is right to give more weight to the Owen Street property’s larger land size. Scopeview submits that, whatever view is taken as to the balance to be achieved between those competing views, there is no real basis for the premium assigned by Mr Field to the Rayman Land. Second, Mr Field’s valuation of $8.6 million as at 22 October 2024 represents a $2.6 million increase on his own valuation of $6 million as at 6 February 2023, an increase of approximately 43% over a period of 624 days (1.7 years). Accepting that Mr Field subsequently revised his 2023 valuation to $6.6 million, Scopeview says that Mr Field’s 22 October 2024 valuation still represents a 30.3% increase, well out step with the change in median values reported for the years to September 2023 and September 2024 of 8.8% and 5.8% respectively. Third, when assessing the market value of the Rayman Home in its damaged state, both valuers were instructed

to proceed “on the assumption that it was to be sold in the condition that it was actually in”. Scopeview submits that there were a number of respects in which the standard of construction of supporting elements of the Rayman Home were deficient, notably in the sub-floor area (referring to the cross-examination by Mr Luitingh of the various witnesses and the structural engineering experts’ agreement on this topic). Scopeview says that it is probable that a proportion of the “various defects and compliance issues” assessed by the ultimate purchasers’ builder were pre-existing defects and issues. Scopeview submits that the evidence does not enable a finding to be made as to the amount by which those pre-existing defects and issues depressed the purchase price. However, Scopeview argues that the pre-existing defects and issues would have had an effect, which it says the valuers’ assumptions have not taken into account. Scopeview argues that the offer made by the purchasers, and the actual purchase price paid, would likely have been higher (and the diminution in value therefore less) but for the pre-existing defects and issues. Fourth, Scopeview says that, even if it were accepted that all of the $500,000 building costs assessed by the purchasers’ builder were to be attributed to the damage caused by the construction works, it may be inferred that the value the purchasers (and

their bank) had placed on the property in an undamaged state was in the order of $7.95 million, slightly below (but close to) Ms Kerswell’s assessment of the market value of $8.075 million in an undamaged state. It is submitted that, in the circumstances, Ms Kerswell’s valuation is to be preferred to that of Mr Field. Determination The test for valuing property is well known (see Spencer v Commonwealth of Australia (1907) 5 CLR 418; [1907] HCA 82). Noting that the two experts were agreed as to the comparable property but differed as to the weight to be acceded to different features, in my opinion Mr Field’s assessment of the comparable property as inferior to the subject property should be preferred in essence for two reasons: the additional living area (the so-called configuration issue) and the double carport. I accept Mr Field’s opinion that those features (together with others such as the location of the property in that specific niche market) would outweigh the larger street frontage of the comparable property. While I accept that this involves a subjective assessment of the respective features by the comparable properties, Ms Kerswell herself stated that valuation is an art as well as a science and clearly subjective views come into play (including as to whether “functionality” is more important than “configuration” or living area when valuing property). I accept that Mr

Field put forward revised valuations of the subject property (including in the concurrent hearing where he suggested that, as at February 2023, he now would value the property at “north” of $6.6m (29/10/25; T 293)) but I did not form the view that Mr Field was manipulating figures so as to justify his view as to diminution in value (as seemed to be suggested by Mr Luitingh). Rather, I considered Mr Field to be pragmatic in explaining how, from a practical point of view and with considerable experience in property valuation in the subject market, he had reached his opinion as to value. My impression of Ms Kerswell was that she had approached the valuation exercise in a less practical way insofar as she had given weight to what she described as the “market movements argument”. I have no doubt that she approached the valuation exercise professionally and in a genuine attempt to assist the Court but ultimately I was more persuaded by Mr Field’s analysis. As to the criticism that, on Mr Field’s figures, the value of the subject property in an undamaged state would have represented a significant increase in value beyond the median change in value for that period in that location, this may well reflect the difficulty when forced to rely on an isolated number of sales and may simply be an anomalous result. I also consider that the sale price in October 2024 (though the experts agreed

the sale price represented market value) may well have reflected an even more significant reduction in value due to the apparent uncertainty as to the scope of the rectification works which would be required to the property and the stigma of the dispute as to vibration damage to the property (though I also accept that there is uncertainty as to what was meant by litigation “issues”). I also accept that some of the reduction in the market value may well have been attributable to pre-existing defects and that this is in tension with the assumption on which the joint experts’ report was based as to the property being structurally and physically in the same condition as it was on 27 April 2020. Relevantly, the experts were agreed that the current market value of the subject of the property, assuming it had not been the subject of damages from the excavation works, was either $8.6 million or $8.075 million. That reinforces my view that there was certainly a diminution in value (contrary to the submission for Ms Brown that there was no diminution in value at all or a windfall, or practical economic advantage, arising from the sale). Finally, I do not accept Ms Brown’s submission that the valuers incorrectly approached the valuation exercise because they did not value the subject property (with and without the vibration damage, as at 28/29 April 2020). I consider that the valuation

experts properly appreciated and approached their task. Ultimately, I am persuaded by Mr Field’s analysis of the comparable sale (the Owen Street property), and his subsequent analysis of the sale of the other property to which his attention was drawn in the conclave, that the diminution in value by reason of the construction and excavation works was $1.15 million. I accept that the increase in valuation over the relevant period represents a departure from the CoreLogic analysis of market movements in that period but I find it significant that the assessment of both the property valuation experts was in a broadly similar compass and that an important point of departure between them was assessment of the superiority or inferiority of the comparable sale (on which issue I agree with Mr Field’s analysis). Structural Engineering experts Expert evidence was given by three structural engineers: Mr Anthony Dockrill, called by Ms Rayman (report dated 12 March 2023); Mr Mark Manning, called by Ms Brown (report dated 18 August 2023); and Mr Leigh Appleyard, called by Scopeview (report dated 14 August 2023). The experts participated in a conclave and produced a joint report. Background Mr Dockrill has 30 years’ experience in design and delivery of structural and civil engineering projects and many years’ experience with residential building sites and oversight of various trades. He has

limited experience of designing shoring systems, saying that “most of the jobs I’ve had where there’s shoring systems we’ve had the geotechnical engineers mainly involved” (30/10/25; T 352). Mr Manning has been a structural engineer since 1989 (30/10/25; T 352). He has worked with a large multidisciplinary engineering consultancy. Mr Manning has designed shoring systems but says more typically that is a specialist area designed by a subcontractor. Relevantly, on a few occasions, Mr Manning has designed sheet pile shoring systems. Mr Appleyard has 35-40 years’ experience as a consulting structural engineer (30/10/25; T 352-353). He has very limited experience in designing shoring systems but considerable experience in checking designs for shoring systems, including sheet pile shoring systems. None of the three experts had experience working onsite with vibration management consultants although Mr Appleyard said he had had cause to review vibration management reports when preparing expert reports (30/10/25; T 353). Objection to opinions expressed by experts as to causation At the outset, I note that there was objection taken by Scopeview to opinions expressed by the structural engineering experts as to the percentage contribution to the damage by the respective subcontractors; that objection being that the basis of their reasoning was not apparent and that, ultimately, the issue

of causation was a matter for the Court. I provisionally admitted those portions of the experts’ reports and indicated that I would rule on this issue in my final reasons. Relevantly, as I understand the experts’ reports, in the impugned parts of their reports, after having given their opinion on the physical or operational cause of the harm that was occasioned to the Rayman Land (which is certainly permissible) they attribute the contribution thereto by each of the respective alleged wrongdoers and concurrent wrongdoers. It was accepted by the parties that the issue of causation is one for the Court to determine. However, Ms Brown argued that, in light of the consistency of the experts’ opinions and agreement as to the contributions of the various subcontractors, this should be a strong influencing factor. I do not regard the opinions of the experts as to the percentage contribution of the various wrongdoers as of any great assistance but I consider that their views as to the contributory factors to the damage is of assistance; particularly their opinion as to what ordinary competent building practice would require. To the extent that the experts’ percentage attribution of fault sheds some light on those matters, I will admit the impugned evidence subject to relevance and weight. Ultimately, however, I have come to my own decision on that issue (see Issue 5 below). The experts

participated in a conclave and produced a joint report dated 25 October 2025. The joint report addressed five issues as follows. Issue 1: What damage has the property suffered as a result of the works? As Scopeview notes, the damage to the Rayman Home consisted of movement resulting in cracks in brickwork and render and gaps between wall and ceiling elements and the like. (To the extent that this might be said to minimise the damage, it should be noted that all the experts appeared to agree that the structural damage was significant.) Mr Dockrill (Ms Rayman’s expert) considered that approximately one-third of the house, which was closest to the construction works, had significant damage attributable to the construction work. Mr Dockrill said that, while there was some minor pre-existing damage to the property, the increase in the damage (assessed by comparison to the respective dilapidation reports) was in the order of approximately 50 to 75%, which he considered would have been caused by the construction works. Mr Manning (Ms Brown’s expert) said he could not provide details on the precise extent of the damage as he was not a quantity surveyor but agreed with Mr Dockrill that some damage was caused by the construction works and some was pre-existing (see Issue 5 below). Mr Manning said that he could not provide details on the precise extent of the pre‑existing damage and the

damage that was caused by the construction works and that a quantity surveyor should be engaged for that process. Mr Manning said that he had given examples and separated them into certain categories; and that costing a particular item of damage would not be within his expertise. Asked whether the statement (at page 3 of the joint report) that “I could not provide details on the precise extent of the damage” was different to the cost to rectify, Mr Manning said “Well I think some of the damages has become exacerbated by the construction works, and that’s you know I would suggest difficult to quantify that, that increment” (30/10/25; T 321). Mr Appleyard (Scopeview’s expert) could not comment on this issue as he was not instructed to inspect the property. Issue 2: What was the cause (or what were the causes) of the damage? All the experts identified vibration caused by the piling installation as the primary or most likely cause of the damage which occurred. Mr Appleyard (Scopeview’s expert) emphasised the discrepancy between VMS’ and Martens’ recommended vibration levels and was highly critical of the fact that the advice in the Martens Report (on which he placed great weight) was not followed. In particular, in his concurrent evidence, Mr Appleyard’s opinion was that the VMS warning and halt levels were inappropriate, noting that the figures of 8 mm/s and 10 mm/s were over

double those recommended by Martens (3 mm/s) (which he considered were more appropriate) (30/10/25; T 319). Asked as to the assumptions he made to reach that conclusion, Mr Appleyard referred to two matters: the aspect of the site (essentially, sandy soil that needed to be treated with a great deal of caution when putting in any form of piling because of the high propensity for damage as a result of earth borne vibration on a sandy site) and the closeness of the adjoining building (30/10/25; T 319). Mr Appleyard said that the Martens Report was a “fairly clear warning” (30/10/25; T 320). Mr Appleyard’s reasoning was that driving steel sheet piling on a sandy site increased the propensity for damage due to the driving action of the steel piles and as a result vibration damage (30/10/25; T 320). Mr Appleyard thus considered that the IDC temporary shoring plan was structurally inappropriate and contributed to the damage. Mr Dockrill (Ms Rayman’s expert) considered that the lateral movement of the sheet piles was a secondary cause of the damage. Mr Dockrill in his report (with reference to the Rothshire report) gave his opinion that the sheet piling wall was too close to the boundary (which increases vibration) and that the gap between the Brown Land and the sheet piling wall was 300-400mm whereas it should have been hard up against the wall. (Ms Rayman argues that after the sheet

piling was installed it shifted closer towards the Brown Land, and said this explained why the original damage was caused by the vibrations but further damage has occurred as Wall 3 shifted towards the Brown Land and has taken the Rayman Land with it; see 27/10/25; T 57.) Mr Appleyard did not challenge the Rothshire Report’s finding that Wall 3 (of the sheet pile walls) moved 20 mm closer to the Brown Land because of forces adjacent to it and Mr Appleyard accepted in principle that another cause of damage from the vibrations was that when the wall moved the house at the Brown Land shifted with it (30/10/25; T 331-332). Mr Appleyard thus accepted in the concurrent hearing that the two primary causes were the initial vibration and subsequent move by reason of Wall 3 moving closer towards the Brown Land (30/10/25; T 332). He agreed that no other cause was identified (30/10/25; T 332). Mr Manning (Ms Brown’s expert) considered that poor construction within the basement would have contributed to the damage that arose. Mr Manning said that a minor contributor potentially to the damage was over-excavation on the Brown Land (30/10/25; T 349) but said that over-excavation did not detract from the primary reason being the vibration because the timing of the reported damage matched the installation of piles rather than the excavation (30/10/25; T 350). As to apportionment between the two

causes Mr Appleyard had identified as the primary causes of damage in the concurrent hearing, Mr Appleyard was of the opinion that vibration was the significant factor and that it outweighed the lateral movement of 20 mm (30/10/25; T 332). As adverted to above, in his concurrent evidence, Mr Appleyard placed great reliance on the Martens Report recommendation for a PPV limit of 3 mm/s. Mr Appleyard explained that the site is sandy soil and said that it is not a site subject to reactive soil movement (but said that it is not unusual on reactive soil sites for there to be movements of 20 mm, to occur for such different reasons as result of ground movement) (30/10/25; T 332). Mr Appleyard said that he could not say that lateral movement of the sheet pile wall did not contribute to damage but maintained that his primary view is that it was vibration that caused the significant amount of damage (30/10/25; T 332). As to the placement or location of the sheet pile wall, Mr Appleyard accepted that on the face of the documents it appeared that the Wall 3 shoring wall was too close to the common boundary (30/10/25; T 333). As to the gap between where the sheet pile was installed and the Brown Land, when asked to assume a 300 to 400 mm gap in distance and that blue metal (“uncontrolled soil”) was put in the cavity between the sheet piling and what were to be the external walls of the home

on the Brown Land, Mr Appleyard agreed that this would not give any support to the sheet piling wall (but said that. if there was a decrease in the lateral load. it would be infinitesimal) (30/10/25; T 334). Mr Appleyard did not place any great emphasis on role played by blue metal in terms of decreasing or increasing loads (30/10/25; T 336). Mr Appleyard accepted that a reason why the sheet piling wall shifted “20 mils closer” to the Brown Land could have been gap (of 300-400 mm) between the street pile wall and the Brown Land but said that this was not a primary reason for the damage (30/10/25; T 336). Further, Mr Appleyard noted that the plans required a gap between the temporary earth retaining walls and basement wall (30/10/25; T 337). Mr Appleyard said that there had to be a tolerance of some sort but it was not quantified and he could not “put a figure on it” (30/10/25; T 338). Mr Appleyard accepted that one purpose for a gap would be to provide for drainage of water that might otherwise enter between parts of a shoring wall and the external wall of the structure to be built (30/10/25; T 338). Mr Appleyard considered it would be a reasonable practice for a builder to aim for a gap of about 200 mm between shoring walls and an external wall to provide for that drainage (30/10/25; T 338) (as Mr Doueihi had indicated was his practice). In concurrent evidence, Mr Manning was

of the opinion that in general the condition of the subfloor was poor (30/10/25; T 341). Mr Manning said (30/10/25; T 341): Well in general I would say that the, the condition is poor and, and I, and that’s with an emphasis on you know my area of expertise, structural engineering. Photograph 25, it shows a timber post supporting a, a timber beam that I’m not, not certain is positively connected, there’s a positive connection between the two, and-- … The beam there in that situation will be supporting the floor joists, which will be supporting the flooring. Mr Manning also said that there did not seem to be any waterproofing and that, depending on the type of footing, this would be more likely to cause damage to the adjacent slab (30/10/25; T 341-343). Mr Manning said that he would expect if the area was going to be used as storage space that it would have a slab with real steel reinforcement and he did not see any there (30/10/25; T 343-344). Mr Manning also thought most lay people would be able to see this was not a typical construction (30/10/25; T 344) (evidence on which Ms Brown places weight for her contributory negligence argument). Mr Manning’s opinion was that, in general, the basement lacked “robustness” (30/10/25; T 345). Mr Manning said that the timber post and brick pier did not have footings and he accepted this could be described as non-compliant (30/10/25; T

345). Mr Manning said that non-compliant works would have exacerbated damage caused by construction in a local sense but he could not quantify the extent of such exacerbation (30/10/25; T 345). Issue 3: To what extent do you consider the damage was caused by the acts or omissions of Scopeview, Meso, VMS, IDC, EIA or any other person or entity This is the evidence that I admitted only subject to relevance and weight. Mr Dockrill generally agreed with Mr Appleyard’s opinion as to the percentage contribution of the respective entities involved in the works (see the joint report) other than that attributable to Ms Rayman. Mr Dockrill did not agree that Ms Rayman should be responsible for any damage based on the condition of the house prior to construction “as the builder should protect adjacent properties that may be affected by the works”, noting that Scopeview had ultimate control. Mr Dockrill agreed that non-compliant construction at the Rayman Land would have exacerbated damage caused by construction vibrations (referring in this regard to the basement) and noted in this context that there was new cracking to the cellar floor (30/10/25; T 372). Mr Dockrill did not, however, appear to attribute the significant structural damage to the defective footings. Mr Manning said that the cellar did not correspond with the Zimmerman documentation for the property, pointing to the timber

post and brick pier without footings. Mr Manning considered that non-compliant construction would have exacerbated damage caused by construction vibrations (and on that basis he allocated a 5% contribution to Ms Rayman). (Pausing here, this percentage figure suggests that the contribution to the structural damages caused by the defective footings was in his opinion relatively minor.) Mr Manning said that Scopeview should have had “some role” in vibration monitoring and allocated 5% to it on that basis. Mr Manning said that the issue of over-excavation “sits with” Meso, which he considered should have a higher percentage (liability) than IDC and EIA. When attributing percentage to participants, Mr Appleyard said that the only matter he relied on was the fact that the various entities had ignored the Martens specifications (30/10/25; T 348). Mr Appleyard believed that each of Scopeview, Meso, VMS, IDC and EIA should have given attention to the Martens Report, noting that it was referenced in both the Development Consent and the construction certificate (30/10/25; T 346). Although Mr Appleyard had initially considered that Scopeview should be allocated no percentage contribution, he explained that on consideration during the conclave he agreed that Scopeview should be held “somewhat accountable”, noting that Scopeview sought advice from VMS and that VMS had increased the vibration

levels from those provided by Martens. On that basis, Mr Appleyard said that during the conclave he accepted that the appropriate figure was 5% (on the basis that builder was overall project manager and should have paid heed to the construction certificate) (30/10/25; T 348). Mr Appleyard also accepted that building owners would not necessarily be conversant with terminology of expert reports (30/10/25; T 349). Mr Manning said that his approach was that vibration was primary contributor (30/10/25; T 349); that he would allow 5% against Scopeview and Ms Rayman (relating to the basement issue) (30/10/25; T 349). As for the others (EIA, IDC, Meso), Mr Manning based his assessment of proportionate liability on the basis that they did not follow the Martens advice (30/10/25; T 349). Essentially, Mr Manning agreed with Mr Appleyard as to the percentage attribution of liability but attributed a higher percentage to Meso based on the over-excavation issue (30/10/25; T 349). As to the position of the building owner, Mr Manning thought it depended whether the owner should have “flagged” that (in context, the condition of the Rayman Home) and whether Scopeview should have recognised that (30/10/25; T 350). Issue 4: Did any of Scopeview, Meso, EIA, VMS, IDC or other persons or entities responsible for causing the damage fail to follow any relevant Australian or international standards or

guidelines or fail to follow competent professional practice? Mr Appleyard referred to a departure from the German standard; but said that it would be difficult to identify breaches of Australian or international standards. Mr Appleyard referred to the fasct that the Martens Report was not followed by VMS regarding vibration limits as a clear breach of competent professional practice and each of Mr Dockrill and Mr Manning agreed with that. Mr Dockrill said that the principal breach was not following the guidelines and advice originally set out by Martens. Item 5: Do you consider any of the damage pre-dated the works? If so, what was the nature and extent of any pre-existing damage? Mr Dockrill acknowledged there was some minor damage that pre-dated the construction works; identifying that as minor cracking as evidenced in the dilapidation reports. Mr Dockrill said the pre-existing damage was minimal compared to the extensive new damage resulting from the construction activities. Mr Manning agreed that there was some damage that pre-dated the construction works and referred to the specific examples of pre-existing issues set out in [37] and [38] of his report. Mr Appleyard could not comment as he was not instructed to inspect the property. Relevantly, Mr Manning grouped the damage into four different categories: first, damage that existed in a similar form prior to the

construction; second, damage likely caused as a result of circumstances associated with the Rayman Home “generally associated with moisture ingress to the front and rear balconies”; third; damage of a minor nature to the external render that may have been caused by normal thermal loads in combination with a lack of control joints originally installed at the Rayman Home or alternatively vibration associated with the construction at the Brown Land; and, fourth, damage likely caused by construction on the Brown Land generally associated with the temporary shoring of the site. At [38], Mr Manning gave examples of what would fall within each of those categories. Mr Manning said that this was based on whether the damage was in proximity to the adjacent site and the photographic evidence as to whether the damage existed prior to the construction (30/10/25; T 322). Mr Manning was tested on some of the items included in the four categories. Broadly, they were: damage that was pre-existing; damage associated with moisture ingress to the front and rear balconies (not caused by the works); minor damage caused by lack of control joints or alternatively by vibration during the shoring works; and damage likely caused by the works. Mr Manning attributed approximately 33% to 50% of the damage, including increases in existing gaps and crack widths, to the construction works. Mr Dockrill agreed

that there was pre-existing damage. However, as noted above, he attributed 50% to 75% of the damage to the construction works. Concurrent evidence – building practice During their concurrent evidence, each of the experts agreed that, in practice, building site management is the responsibility of the builder or principal contractor (who is responsible for delivering works in accordance with plans) (here Scopeview) (30/10/25; T 353) and that the builder coordinates with other trades and consultants onsite (30/10/25; T 354). Each assumed that the shoring contractor (Meso) was contracted to provide a shoring solution which comprised installation of sheet piling plus internal bracing (30/10/25; T 354). Mr Appleyard did not agree that it was necessary for a geotechnical engineer to make recommendations as to vibration limits but accepted that this is the convention and he agreed that a geotechnical engineer is in the best position to do that having done soil tests and understanding the subterranean conditions (30/10/25; T 346). As to who ordinarily makes the decision as to what kind of sheet pile is to be used, Mr Dockrill queried whether the Contract was a design construct contract but, significantly, said that if a geotechnical engineer recommended a particular type of shoring (and not sheet piling) (as, I interpose to note, was the case here in light of the Martens Report) he

would have expected the structural engineer or whoever made the decision (as to shoring) to take that advice and not to use sheet piling (30/10/25; T 354-355). As to SCH5-750 being selected as the sheet pile metal, Mr Dockrill did not know what SCH5-750 was (30/10/25; T 355) but said that if a design person was working with the shoring contractor then that person would come up with the design (30/10/25; T 355). Mr Manning expressed the opinion that Meso only installed sheet piles and said that the builder (here, of course, Scopeview) will often influence what type of piles are used (30/10/25; T 355-356). Mr Manning said that it could be the geotechnical engineer (who selects the types of piles used) but that a builder might decide not to use certain types of piling for commercial reasons (30/10/25; T 356). (There is no suggestion here that a geotechnical engineer had chosen the type of sheet piles to be used – the Martens Report contained a clear recommendation against sheet piling and the design certified by EIA had already specified the particular sheet piles to be used, and they had been acquired, before any opinion was given by EIA.) Mr Appleyard said that it was common for a structural engineer to incorporate recommendations from the geotechnical engineer when preparing plans for shoring walls (30/10/25; T 356). Mr Appleyard also pointed out that cross-bracing is needed

not just for sheet piling but also for contiguous piled walls (30/10/25; T 357). As to who designs system of support for sheet pile walls during excavation (i.e., bracing or anchors), Mr Dockrill said that it was part of the design; that if the cantilever was not extreme one may not need any bracing; and that it depends on thickness of steel piles and depth of it (30/10/25; T 356). Mr Manning said that IDC was the designer but that it would have been influenced by the builder in terms of how and what style was to be adopted or not (i.e., sheet pile selection and whether to use bracing) (30/10/25; T 357). Mr Manning accepted that it was possible that a builder would leave the design of support for sheet pile works to the structural engineer and shoring contractor but added that here “he’s [as I understood it, Mr Doueihi] delegated that whole design process to subcontractor” (30/10/25; T 357). Each of the experts agreed that, when installing sheet piles, one of the key obligations is to comply with vibration limits (30/10/25; T 357-358). Further, each agreed that the structural engineer (here, IDC) is responsible for producing a shoring design and that this involves calculating the expected deflection of sheet pile wall when in cantilever mode (30/10/25; T 358). As to whether the shoring design also involved consideration of vibration levels, Mr Dockrill said that, in his

experience as a structural engineer, he would defer to a geotechnical engineer as it is a more specialised area and, if a vibration management consultant was engaged, he would consult with that consultant (30/10/25; T 358). Mr Manning did not think that was necessary (30/10/25; T 359). Mr Manning said that “you’re providing a design that’s independent … of vibration, but you’re … specifying that, that those vibration limits are met” and that there was not really any cross-over to design per se (30/10/25; T 359). Mr Appleyard said there was “no one solution or one process” and that a structural engineer may or may not have had access to a geotechnical report that may or may not have given advice on vibration or other situations to avoid or minimise (30/10/25; T 359). The experts were taken to IDC’s general notes to the temporary shoring plan revision for construction dated 20 April 2020, in which IDC set out vibration levels. Questioned as to what a structural engineer, armed with a geotechnical report recommending vibration at 3 mm/s, would do as matter of practice when stipulating vibration limit in general notes to a builder, Mr Dockrill said that the structural engineer generally would follow advice from the geotechnical engineer (30/10/25; T 360). He said that the notes ought to reference where that advice is from (30/10/25; T 360). Mr Dockrill said that it would be unusual

for a structural engineer to make a determination of a different level of vibration on its own (30/10/25; T 360). Each of Mr Manning and Mr Appleyard agreed with this (30/10/25; T 360). Mr Manning said that there needed to be a “really good reason” to change advice that a geotechnical engineer has given (30/10/25; T 360). Mr Appleyard said that it was usual practice for a structural engineer to make very specific reference on the notes page to acknowledge the structural engineer had taken note of the geotechnical recommendation (30/10/25; T 360-361). Tellingly, Mr Dockrill added that, to change such advice, would have insurance ramifications (30/10/25; T 361). Mr Manning agreed and Mr Appleyard (also tellingly in my opinion) said that “I think if the structural engineer made a decision to depart from the advice he was given, he should phone his PI insurer straight thereafter” (30/10/25; T 361). Questioned by me as to whether there is a difference in vibration level recommendations as between the two different shoring systems (i.e., sheet piling and contiguous piering or piling) Mr Appleyard said no and Mr Manning said that he was not aware of any difference (30/10/25; T 361). As to it being the responsibility of the geotechnical engineer to analyse soil profile and advise on soil conditions, Mr Dockrill said that was one of the geotechnical engineer’s roles (the other usually

being to advise on suitable footing systems and piling systems) (30/10/25; T 360-361). The other experts agreed (30/10/25; T 361). As to soil profile, Mr Dockrill and Mr Manning agreed that one of the main parameters was to look at stiffness or cohesiveness of soils on the site and adjacent properties (30/10/25; T 362). Mr Appleyard said that he would not include cohesiveness in that regard (30/10/25; T 362). Mr Dockrill and Mr Manning accepted that it was necessary to know the stiffness of soils, as a structural engineer, to calculate the expected deflection in a sheet pile wall. (30/10/25; T 362). Mr Dockrill said that “to calculate the deflection of the sheet pile during the installation, you would need to know information on the adjacent site, various parameters to allow you to work out the, the lateral forces imposed during, during the process” (30/10/25; T 362). As to whether the stiffness of soil is relevant to vibration levels, both Mr Dockrill and Mr Manning said that this was outside their area of expertise (30/10/25; T 363). However, Mr Dockrill said that stiffness of soil does affect the method of installation of sheet piling (not just the rate of the pile going down but the speed of vibration) and that in some situations the material will be too stiff for sheet piling (30/10/25; T 363). Mr Appleyard said (30/10/25; T 363): [T]he soil type and consistency is

relevant, but the, again, the literature supports that the driving parameter is that of distance from the source regardless of the soil, so. Asked whether, if a structural engineer put a proposed vibration limit on design, the experts would ordinarily expect it to be reviewed by a geotechnical consultant, Mr Dockrill said yes; Mr Manning said that it was not universally the case but that sometimes there would be a condition on the authority’s approval that the geotechnical engineer review the structural engineer’s work; and Mr Appleyard agreed with Mr Manning but said that sometimes systems vary (30/10/25; T 363). Questioned as to the concept of the “zone of influence”, Mr Dockrill said this is relevant when carrying out sheet piling. Mr Appleyard referred to a logarithmic graph and to American research in 1980s as to the correlation between distance and intensity of vibration and Mr Appleyard explained that it is lateral distance not depth (30/10/25; T 364-365). As to whether the “zone of influence” is within 10 metres of the adjacent structure, Mr Appleyard and Mr Dockrill each agreed; Mr Manning could not agree with that level of precision and said it was for a geotechnical engineer (30/10/25; T 366). Mr Appleyard (in relation to the evidence from Mr Doueihi) said that it is not correct that 3 mm/s vibration would be more intense than 8/10 mm/s; rather, the converse is

correct (30/10/25; T 366). As to the extent of additional damage caused by locating the sheet pile wall at an offset of around a metre from western wall as opposed to 1.3 m, Mr Appleyard said he could not measure this definitively, but that it would be “very, very small” and not of significance (30/10/25; T 366-367). Each of Mr Manning and Mr Dockrill agreed that it is not of significance (30/10/25; T 367). As to the role of a vibration consultant, Mr Dockrill and Mr Manning agreed this was to monitor vibrations and to give advice as to appropriate levels but Mr Dockrill said that this may not be their exact expertise (30/10/25; T 367-368). Mr Manning accepted that sometimes a vibration consultant will give advice about the appropriate limits to be imposed (30/10/25; T 368). Mr Appleyard further clarified the role of a vibration consultant and said that such a consultant is rarely on site and usually installs the monitoring equipment and then is offsite (30/10/25; T 368). Mr Appleyard said that if the consultant was offsite and an alert was triggered, what would happen would depend on the sophistication of the equipment and the brief to vibration management consultant; but if this was in real time there would be a physical signal (30/10/25; T 368). (In the present case it was accepted that the evidence indicated that this triggered an audible alarm and flashing

light.) Questioned whether, if sheet piling was installed and damage was reported immediately and there was notification of reports of damage/cracking, a structural engineer would expect the vibration management consultant to review the vibration limits, Mr Dockrill said yes, work would stop and the structural engineer would review and contact the geotechnical engineer (if one was engaged); Mr Manning said this had to be addressed and identified this as an issue between VMS and the builder; Mr Dockrill said that it should have been flagged that the limits were too high in comparison to the Martens Report (to which Mr Appleyard agreed) (30/10/25; T 368-369). Mr Appleyard said it was not necessarily incumbent to query whether the limits “inherited” from the geotechnical engineer are correct but that “certainly” the structural engineer’s role was to say there is a problem and that it should have been referred back to the geotechnical engineer (30/10/25; T 369). Asked to assume that VMS was onsite to observe the operation on 29 April 2020, the experts were asked whether in their opinion VMS should have advised there was a need to review limits, Mr Dockrill said this depended on the contract (i.e., whether it was just monitoring or also advice) but, if the contract included advice, yes; Mr Manning said the tone of Mr Blake’s response saying vibration was within advised limits was

“fairly dismissive” and Mr Dockrill agreed with that (30/10/25; T 369-370). Tellingly, Mr Appleyard said that, with the numbers on 29 April 2020 (the second day of piling), VMS should have just said “Houston, we have a problem” (30/10/25; T 371). (In the context of the cross-examination, note this seemed to be a reference to the numbers compared to the vibration damage limits of 14.6 mm/s.) Asked to assume a conversation between Mr Doueihi and Mr Orr (Meso) on 29 April 2020 (see Mr Doueihi’s affidavit at [75]) where Mr Doueihi said he thought they had vibration monitoring and an arrangement not to go over vibration levels and Mr Orr said “everything is fine, we’ve got the vibration reports”, and questioned whether this was good practice from a shoring contractor, Mr Dockrill said “absolutely not”; Mr Manning said that evidence should have been presented to Scopeview; and Mr Appleyard agreed (30/10/25; T 371). Questioned by counsel for Ms Brown as to whether there are divergent risks in contiguous/sheet piling, Mr Dockrill said that the risk with vibration for sheet piling is usually whether it is going to affect adjacent structures and, that there is not the same level of risk with contiguous piling but he added that contiguous piling is generally more expensive (30/10/25; T 372). Mr Dockrill agreed that contiguous piling is more expensive than sheet piling, as did Mr Appleyard

(as a general statement) and Mr Manning (30/10/25; T 372-373). The experts said that vibration or disturbance of soil is much less for contiguous piling (30/10/25; T 372). Conclusions as to structural engineering experts The structural engineers were, in most respects, in agreement. I accept that each was suitably qualified and each gave his evidence during the concurrent hearing in a balanced and objective way. I make the following findings based on their evidence. First, the primary cause of the damage to the Rayman Home was vibration caused during the installation of the sheet piles. Second, the vibration level limits set by Meso/IDC and VMS were inappropriate (being too high) and the Martens Report recommendation should have been followed. Third, lateral movement of the sheet piles (because of deflection while unbraced and in cantilever mode) was a secondary cause of the damage (see, for example, Mr Dockrill’s evidence) but delay in bracing was a relevant cause only for the period after excavation below the top of the sheet pile walls commenced. Fourth, poor construction of the basement of the Rayman Home likely contributed to the damage sustained as the result of the vibrations but could not be quantified (see Mr Manning and Mr Dockrill’s evidence in this regard). Fifth, neither the distance from the common boundary for the placement of the sheet piles nor the distance of

the sheet pile wall from the boundary of the house to be constructed on the Brown Land was a significant cause of the damage (see Mr Appleyard’s evidence and that of Mr Wong). Sixth, a minor contributor to the damage was over-excavation of the site, the responsibility for which lay with Meso (Mr Appleyard; Mr Manning). I also note the following matters which emerged from the expert evidence and find accordingly. The builder or principal contractor is responsible for delivering the works in accordance with the plans. The structural engineer is usually responsible for producing a shoring design including calculation of anticipated deflections. Ordinarily, the design of the shoring system will determine sheet pile selection and whether to use bracing; if a geotechnical engineer recommends a particular type of shoring system, one would expect the structural engineer (or whoever made the decision) to take that advice (Mr Dockrill); and a shoring contractor (or design person working with the shoring contractor) will select the design of the sheet piles (Mr Dockrill); a geotechnical engineer might do so but a builder might decide otherwise (Mr Manning). It is common for a structural engineer to incorporate recommendations from the geotechnical engineer when preparing plans for shoring works (Mr Appleyard). One of the key obligations in installing sheet piles is setting the vibration

limits. There is no set approach as to whether a structural engineer will defer to a geotechnical engineer when considering vibration limits but consultation would be expected including with a vibration management consultant if one were engaged. One of a geotechnical engineer’s roles is to analyse soil profile and advise on soil conditions. Ordinarily, one would expect a geotechnical engineer to review proposed vibration limits put forward by a structural engineer but this is not invariably the case. If sheet piling was installed and damage was reported, one would expect work to stop, and for a vibration management consultant to review and contact the structural engineer. In this case, the response by VMS to the reports of vibration levels being exceeded and damage being notified was “fairly dismissive”, and Meso’s response thereto was not good practice – the experts all considered this to be an obvious problem (see Mr Appleyard saying, graphically, that his response would be “Houston, we have a problem”). Tellingly, the experts considered that a structural engineer should follow geotechnical engineering advice (there would need to be a “very good reason” to depart from that advice – and it would have insurance ramifications to do so). Geotechnical Engineer Scopeview called expert evidence from a geotechnical engineer, Mr Patrick Wong, whose report is dated 18 August 2023. Mr

Wong attributed the damage to the Rayman Home to a number of things: underestimation by IDC of the shoring movements; vibration caused by pre-drilling for installation of the sheet piles; possible ground loss/disturbance during pre-drilling; vibration caused by driving of sheet piles; movement of the sheet pile wall in the period from excavation to RL 12.7 mAHD; delayed installation of the cross-bracings; and, in relation to the sheet pile wall movement, insufficient structural rigidity and capacity of the sheet pile section while in cantilever mode. Mr Wong noted that the sheet pile section adopted by Meso (SCH5-750) only has steel thickness of 4 mm (30/10/25; T 374). Mr Wong explained that it is lightweight sheet pile because the thickness of the steel sheets is relatively thin (30/10/25; T 374). Mr Wong described sheet piles as being made out of cold rolled flat sheets of steel (30/10/25; T 374). Mr Wong identified the following consequences of using sheet pile that is light weight: first, the sheet pile would fail at a lower “bending moment” (i.e., the moment computed from analysis that stands for if you bend something at a distance using a particular force where then the force times the distance is the moment (30/10/25; T 376)) than heavier sheet pile; second, even if the sheet pile does not fail it would bend more (30/10/25; T 375). Mr Wong explained that, generally, it

is the bending moment that governs the deformation and flexibility of sheet piles (30/10/25; T 376). Mr Wong explained that “computed wall deflection” means calculations that result in a deformation of the wall and that “shear” force refers to the force of shearing (30/10/25; T 376). Mr Wong noted that the IDC Design and Analysis report stated that if one has the excavation height of 1 m then one would be allowed to have a 5 mm deflection (30/10/25; T 376). Here, the excavation height was 3.9 m, and so Mr Wong said that it would be 0.5% of that figure – around 20 mm in round terms (30/10/25; T 376-377). Mr Wong noted that Wall 3H is the section closest to Rayman Land and also the deepest part of the excavation (30/10/25; T 377). IDC calculated the deflection for Wall 3 at 5.54 mm. Mr Wong said that presented a result far more accurate than one could ever predict in geotechnical engineering (i.e., to the second decimal place) (30/10/25; T 377). Mr Wong’s calculation, as noted above, was around 20 mm (30/10/25; T 378). As to IDC’s second report dated 20 April 2020, Mr Wong notes that the calculation of wall deflection had reduced to 2.46 mm (30/10/25; T 378-379). Mr Wong’s understanding is that IDC had introduced two more layers into the soil profile (30/10/25; T 379). Mr Wong’s evidence was that the revised ground profile did not justify that reduction in the anticipated

deflection (30/10/25; T 379). In Mr Wong’s view, a review of the published literature leads to the conclusion that movements of the order of approximately 7 mm to 11 mm could be expected. On Mr Wong’s calculations, the expected deflection based on IDC’s design on excavation to RL 12.7 m would be in the order of 15 mm. (Thus, Scopeview says that, even if there had been no delay in installing the internal bracing, there would still have been a deflection in the shoring wall of approximately 15 mm.) Mr Wong did not see a justification for a structural engineer dealing with design interpretation of geotechnical problems on the structural engineer’s own accord (30/10/25; T 379). As to the movement of Wall 3 (the sheet pile wall closest to the Rayman Land) closer to the building site (about “20 mils”) and asked if his opinion was that this was because it took too long to put bracing in and that it was at that point in time when the movement took place, Mr Wong said (30/10/25; T 380-381): The majority of the movement took place, that’s my opinion. Some of those courses [sic; causes] might have caused some limited movement before the excavation and bracings were put in, because vibration obviously causes a level of damage. In my experience, generally, only architectural type damage. Then followed by if you do not put the bracing in sufficiently early then the movement would be greater

and damage could be greater too, because if you initiated some cracking the cracks will open up. Taken to paragraph G on page 809 of his report (the statement that “the adopted sheetpile [sic] section does not appear to have sufficient structural rigidity and capacity when it was acting in cantilever mode prior to installation of the cross bracings”), Mr Wong agreed that this was a reference to when the sheet piling had been installed in the ground and was sticking up in the ground, unbraced before bracing is applied (30/10/25; T 381). There was then the following evidence (30/10/25; T 381): Q. Is it your view that after the bracing was applied, in its entirety, at that point in time the sheet piling had sufficient capacity and structural rigidity? A. It - I wouldn’t say it has adequate structural rigidity. In relation to capacity it is, it is difficult to say because when a sheet pile exceeds its yield moment, it doesn’t mean the sheet pile will fail, but it will deflect more. So, so prior to installing the bracing at that point it is my opinion that the sheet pile didn’t have adequate rigidity and, and capacity because it is starting to exhibit movement that a rigid structure would otherwise exhibit. Q. Is it your view that that movement would have ceased after the bracing had been installed? A. Yes, yeah - more or less, yeah. Q. When you mean “more or less”, what do you mean

by that? A. Maybe 99% of the movement would have occurred - by the time you brace it it’s now rigidly supported. There may be some relaxation of some things, redistribution of stresses, a very insignificant amount. Mr Wong was not aware that the bracing had been installed and completed by 24 June 2020, explaining that he knew that, as of 17 June, based on photographs supplied to him, the bracing had not been completed (30/10/25; T 381). Mr Wong was then asked the following (30/10/25; T 382-383): Q. There may be a contest about this, it might be the 17th, but assume that the bracing had been installed by 24 June, you would expect in those circumstances, given that 99% of the movement-- A. Yes. Q. --took place before the bracing occurred, but any further movement would be minimal, correct? A. Now I need to clarify that. I’m referring to ground movement supported by the sheet pile. Q. I understand that. A. Any movement of the structure is a separate matter and I can’t really comment on, yeah. Q. Doesn’t the structure sit on the top of the ground, sir? A. It, it does but the structure could rotate as a result of damage that had, had been incurred. Right, so those movements may manifest themselves a little bit later on because you know, brick has brickwork and so on, even, you know, have certain amount of tensile strength until it can’t take it any more. So there may, may - and I’ve

seen this before on other sites as well, that movements on the wall might have ceased but the structure that’s sits on, on top of it may undergo a little bit more movement afterwards. Q. But you can at least see from the extracted paragraph 45 that there’s been significant movement in at least the structure to my client’s property from 11 millimetres to as much as 25 millimetres. So it’s doubled. A. Yeah. Q. It’s more than doubled after 24 June 2020 to 30 November 2021. A. Yeah. Q. Could that be an indication that there’s been further ground movement during that period? A. It’s possible but I, I really would find it difficult to comprehend as to why that would be the case. Mr Wong confirmed that, when he provided his opinions in his report, he assumed that what was constructed is what is depicted in the IDC plans (30/10/25; T 383). Asked about the difference in the placement of the sheet piling wall from the boundary, Mr Wong said (30/10/25; T 384): Q. I might need to approach, but it shows that the sheet piling wall needs to be 0.7 metres away from the boundary, which is the red dotted line. And that obviously would affect how far away it is from my client’s house, which is shown at the bottom of that diagram. Would your calculations have differed, I’ll put it another way, surely your calculations would have differed if in fact that sheet pile wall was located 0.392 away from

the boundary, as opposed to 0.7? A. So are we talking about a 300 millimetre difference, roughly? Q. Yes. A. Yeah, it would differ by an insignificant amount. I found Mr Wong to be a considered and informative expert. I accept his opinions. Summary In summary, as to the cause of the damage sustained to the Rayman Home, and responsibility therefore, I have concluded as follows. The evidence of all of the engineering experts was that the primary cause of the damage was excessive vibrations during the installation of the sheet piling (a risk that I note was foreseen and warned against in the Martens Report). The responsibility for that lies with those responsible for: deciding to use sheet piles in the first place, contrary to the clear warning against this in the Martens Report (i.e., Scopeview and Ms Brown, through her husband’s adamant endorsement of and insistence to pursue sheet piling); the design of a shoring plan that incorporated the use of sheet piling (again, contrary to the Martens Report) and specified excessive vibration limits (Meso and IDC); the adoption of excessive vibration limits and failure properly to review those limits during the installation process (VMS); and certification of the use of sheet piling without addressing the significance of the discrepancy in the vibration limits between that identified in the Martens Report and those in the subsequent

shoring plan documents (EIA). The secondary cause (deflection in the sheet piles while they were unbraced) is likely to have exacerbated the vibration damage. Responsibility for that lies with those responsible for: incorrect calculation of anticipated deflection limits (IDC); the choice of the particular type of sheet piles used (Meso/IDC); over-excavation of the site and the delay in bracing after excavation work below the top of the sheet piles began (Meso). As to the last, although the apparent reason for the delay in bracing was breakdown of an hydraulic jack, for which Meso may well not have been responsible, it appears that nothing was done for a number of days to address the fact that the sheet piles were then left unbraced in cantilever mode. I do not place any weight (when assessing the cause of the damage) on the particular location or placement of sheet pile wall 3 (cf Mr Manning’s opinion) as this was not regarded as significant by the other experts and, in particular, by Mr Wong, whose opinion I accept. As to the contribution played, if any, by the condition of the basement, to the structural damage sustained to the Rayman Home, I accept that this may have exacerbated the vibration damage but I cannot quantify the extent to which that damage would have been exacerbated (nor the particular items of damage referable to the defective footing) in the absence of expert

evidence to enable such an assessment to be made. Issue 1 – Alleged breaches of common law duty of care, s 5B Civil Liability Act. The claims in negligence against Ms Brown and Scopeview pursuant to s 5B of the Civil Liability Act or at common law largely mirror each other. Risk of harm, foreseeability of risk and significance of risk As to the risk of harm, this is identified (see particulars to [C.89]) as being the risk of damage to the Rayman Foundations (defined at [C.17] as the concrete footings and piers) and the Rayman Home: (1) by vibrations arising from the use of mechanical machinery during the works on the Brown Land which reduced or altered the support of the Brown Land to the Rayman Land; (2)-(3) by the removal or the reduction of lateral support at ground level and at subsoil level on the Brown Land; and (4) in the event that steel piles were installed as shoring support to the Rayman Land at a distance of less than 1.5 m from the boundary. As to the foreseeability of the risk, it is alleged that Ms Brown at all material times was on actual and express notice and knew or ought to have reasonably known, and that it was foreseeable, that Ms Rayman was vulnerable and at risk of harm in the event that Ms Brown (or her agents) did not follow the precautions set out in the Martens Report and EIA Report in respect of the proposed works ([C.89]). A similar allegation is

pleaded against Scopeview as occupier and a person in control of the Brown Land ([C.95]). The risk of harm is alleged to have been an obvious, significant and foreseeable risk such that a reasonable person in the position of Ms Brown and/or Scopeview would have taken the necessary precautions and/or steps to ensure the safety of, and avoidance of damage to, the Rayman Land and/or Rayman Foundations and/or the Rayman Home prior to the works being commenced ([C.90]; [C.96]). The duty of care to protect Ms Rayman from the alleged risk of harm, when carrying out or causing the works to be carried out, is particularised (at [C.91] and [C.97], respectively) as a duty: (a) to comply with the precautions set out in the Development Consent; (b) and (c) to ensure compliance with the precautions set out in the Martens Report and the EIA Report; (d) and (e) not to do anything upon or in relation to Brown Land that caused or resulted in removal, reduction or distribution of support to the Rayman Foundations or the Rayman Home; (f) and (g) to minimise and/or avoid vibrations emanating from the Brown Land which would result in damage to the Rayman Foundations or the Rayman Home; (h) competently supervise and/or control all the works upon the Brown Land; (i) to construct concrete pile walls as part of the works in order to provide, and adequately maintain, lateral support to the Rayman Land;

(j) not to use driven piles and steel sheet piles to provide lateral support to the Rayman Land; (k) to install vibration monitors upon the Rayman Land prior to the commencement of the works and to utilise such monitors to keep safe from vibration damage the Rayman Foundations and the Rayman Home; and (l)-(n) to underpin the Rayman Foundations and the Rayman Home. At [C.92] and [C.98], respectively, it is alleged that each of Ms Brown and Scopeview was under both a statutory duty (by reference to s 177 of the Conveyancing Act) and a common law duty not to do anything on or in relation to the Brown Land that removed and/or reduced and/or destabilised the support provided by the Brown Land to the Rayman Land. At [C.93] and [C.99], respectively, it is further alleged that each of Ms Brown and Scopeview was under a duty not to cause economic loss to Ms Rayman. At [C.94] and [C.100], respectively, it is alleged that it was reasonably foreseeable and not an insignificant risk that, should Ms Brown (or, in the case of Scopeview, should Scopeview or its contractors) do anything to or upon the Brown Land which removed, reduced or destabilised support to the Rayman Land resulting in physical damage to the Rayman Home, Ms Rayman was also likely to suffer economic loss. Ms Brown, in her response to [C.90], relies upon the retainer of Scopeview as an experienced and adequately qualified and

properly instructed builder, and asserts that, so far as she was able, she took all the reasonably and necessary precautions required of her (as alleged at [C.89]). Ms Brown denies the contentions at [C.91] (the statutory duty of care allegedly owed by her pursuant to s 5B of the Civil Liability Act to protect Ms Rayman from risk of harm). (Ms Brown does not admit the allegation of a statutory duty of care arising from s 177 of the Conveyancing Act but this is dealt with in Issue 2 below.) Ms Brown denies the alleged duty not to cause economic loss ([C.93]). Scopeview broadly denies all the contentions pleaded against Ms Brown (so far as directed to it) and itself as to the alleged common law and statutory duties, save that it says that it owed Ms Rayman a duty to exercise reasonable care and skill in performance of its works under the Contract (see its response at [90]-[101]). The submissions of both Ms Brown and Scopeview focussed largely on the issue of breach (which I consider in due course) rather than whether a common law or statutory duty of care pursuant to s 5B of the Civil Liability Act (other than one arising under s 177 of the Conveyancing Act – see below) was owed. That was, with respect, understandable. However, I note that, in her submissions on the reopening application, Ms Brown argued that Ms Rayman’s Civil Liability Act claim against her failed at the

threshold issues of foreseeability and reasonable precaution, so I address below those submissions. Relevantly, Ms Brown submitted that a person in her position could not reasonably foresee the specific risk-creating conduct alleged (including the method, timing and location of excavation and sheet piling, the absence of vibration monitors, or any failure to underpin) and that nor was she in a position to prevent, control or direct excavation, shoring, sheet piling, vibration monitoring or underpinning (matters she characterised as ones of operational construction). Conclusion as to these issues The risk of harm (i.e., physical damage to the Rayman Home and/or its foundations) was clearly identified in the Martens Report, which clearly recommended against the use of sheet piling due to the risk of adverse vibrations causing harm to adjoining properties (and it must logically follow that a risk of physical damage to property would carry with it a risk of economic loss of some kind arising from the need of any such physical damage). In particular, the Martens Report stated that excavations must be permanently battered back/shored/retained to maintain stability and limit potential adverse impacts on neighbouring properties and identified that underpinning of neighbouring footings, particularly the existing building to the east (i.e., the Rayman Home), might be required prior to

the commencement of site works. The Martens Report also stated that care would be required to limit structural distress to neighbouring structures and settlement of very loose foundation materials caused by construction plant-induced vibrations. The 2019 Dilapidation Report and the conditions set by both the Development Consent and the Modified Development Consent reinforced the concern as to risk to adjoining structures in the course of excavation works. I therefore find that there was a risk of harm as pleaded (both of physical damage and economic loss). As to knowledge and foreseeability of the risk of harm, I find that the risk of physical damage to the Rayman Home was known both to Ms Brown (through her husband’s knowledge of the Martens Report, which clearly identified that risk) and to Scopeview. Ms Brown’s submission (see above) as to what a reasonable person in her position might foresee as to the “risk-creating conduct” is in my view too specific. It is not necessary that a reasonable person in Ms Brown’s position would foresee the precise mechanism by which physical harm or economic loss might arise. It is sufficient that a reasonable person in her position would appreciate that there was a risk associated with the use of sheet piling (i.e., that physical or economic harm might arise from vibrations associated with sheet piling which the Martens Report identified

might cause adverse impacts on neighbouring structures). While I accept that a reasonable person in Ms Brown’s position may well not have appreciated the difference between sheet piling and contiguous piling at the time the Martens Report was received, or the mechanics by which harm might be caused, a reasonable lay person reading the Martens Report would know that sheet piling was not recommended and that there was a risk of structural harm to neighbouring properties associated with excavation works both in general but, in particular, if sheet piling were to be used. Scopeview, through Mr Doueihi, was clearly aware of such a risk. Therefore, I find that, from the time of receipt of the Martens Report, both Ms Brown (through her husband) and Scopeview knew that there was a risk of harm if sheet piling were to be used, due to the risk of adverse impacts from vibrations caused by installation of the sheet piling. That risk was both foreseeable and in fact foreseen. As noted above, the risk of economic loss arising as a result was also foreseeable (since common sense would lead to the conclusion that if damage were to be caused to the support for a neighbouring structure then there would be a financial cost to rectify that damage). I also find that it was reasonably foreseeable, and a not insignificant risk, that, should Scopeview and/or its contractors do anything to the Brown

Land which removed, reduced or de-stabilised support to the Rayman Land, resulting in physical damage to the Rayman Home, then Ms Rayman was likely to suffer economic loss. As to the probability of the risk of harm occurring, that is also established by the Martens Report (and confirmed by the evidence of the structural engineers and geotechnical engineer). Considered prospectively at the time the decision was made to use sheet piling as the temporary shoring system (which I find was at the time of entry into the Contract), on the only considered geotechnical advice that had by then been obtained (the Martens Report), there was an identified risk of harm the probability of which I find was not insignificant. Even if Mr Doueihi had obtained informal advice from Mr Orr of Meso prior to entry into the Contract that sheet piling was feasible for sandy soil sites in the North Bondi area (which I am not persuaded on the balance of probabilities was the case), any such advice was not based on any detailed information as to the proposed development or the particular site. I do not accept that it was reasonable for reliance to be placed on any such informal advice in circumstances where there was a considered recommendation to the contrary. The consequences, if the risk eventuated (as indeed it did) were potentially serious. Thus, I find that the risk of harm (in the sense of physical

damage to the Rayman Home or its foundations, and economic loss arising as a result) was an obvious, significant and foreseeable risk such that a reasonable person in the position of Ms Brown (as owner) and a reasonable builder in the position of Scopeview would have taken reasonable precautions to avoid or minimise the risk of the damage occurring (which in this case could have been done either by not using sheet piling at all or by doing so only within the recommended vibration levels (3 mm/s) and/or by taking other measures such as underpinning the foundations to minimise the risk of damage). I do not accept that Ms Brown was not in a position to prevent such harm. Certainly, Ms Brown was not in control of the operational aspects of the construction. However, she (through her husband) was clearly in a position to approve (or not to approve) the use of sheet piling. Mr Doueihi’s decision to use sheet piling was incorporated into the Contract, which the Browns both signed (after a discussion between Mr Brown and Mr Doueihi had occurred in which the concept of sheet piling was explained). Mr Brown positively endorsed that decision in his subsequent communications with Mr Doueihi and Mr Quinton. The fact that Ms Brown had given Scopeview, by virtue of the Contract, exclusive possession and control of the site does not alter the conclusion that Ms Brown was in a position to avoid

or minimise the risk of harm by the simple mechanism of refusing to endorse the use of sheet piling or insisting on additional measures if it were to be used, to address the vibration risk. While I accept that Ms Brown took reasonable steps in retaining appropriate entities to provide advice and carry out the works in the critical respect of determining to use sheet piling, Ms Brown endorsed the decision based on nothing other than Mr Doueihi’s oral advice. When balancing the potential consequences of the risk transpiring against the cost or inconvenience of taking precautions to avoid that risk, I note that the expert evidence did not suggest that the cost of contiguous piling (instead of sheet piling) would have been exorbitant, although they were of the view that it would have been more expensive than sheet piling; nor was the longer time it would have taken for contiguous piling to be used (which was not quantified) shown to be such as to outweigh the significant risk of harm by the use of the sheet piling. Mr Brown himself disavowed any concern as to delay, when saying that it was a fixed contract and that it did not matter to him whether sheet piling was quicker to use (28/10/25; T 172). Further, there was nothing to suggest that adherence to the vibration limits recommended by the Martens Report would have posed some inordinate difficulty in the construction works. Thus,

it was not established (nor was it suggested) that this was a case where the taking of precautions of those kinds could be said to have been unreasonable in terms of the cost or inconvenience when balanced against the potential consequences if the risk of harm materialised. I consider below whether there was a breach of that common law duty of care by either or both of Ms Brown and Scopeview. (Under Issue 2, I consider the statutory duty of care alleged to have arisen under s 177 of the Conveyancing Act.) Breach As to the issue of breach, it is alleged (at [C.112] and [C.116], respectively) that each of Ms Brown and Scopeview failed to take reasonable precautions to minimise or reduce the risk of damage to the Rayman Land and/or Rayman Home. The particulars of breach in respect of each of Ms Brown and Scopeview are (at [C.112] and [C.116], respectively): (a) failure to implement the recommendations of the Martens Report; (b) failure to implement the recommendations of the EIA Report; (c) failure to comply with the conditions of the (Modified) Development Consent; (d) failure to avoid causing vibration damage to the Rayman Land and/or the Rayman Foundations and/or the Rayman Home; (e) failure to maintain lateral support to the Rayman Land; and/or (f) removal, reduction or destabilisation of the lateral support provided by the Brown Land to the Rayman Land. The parties’

submissions as to breach may be summarised as follows. Ms Rayman’s submissions As to whether Ms Brown and/or Scopeview failed to exercise reasonable care, Ms Rayman notes that the central matters in dispute involve the interactions between Mr Brown (on behalf of Ms Brown) and Mr Doueihi (on behalf of Scopeview) prior to the installation of the sheet piling shoring system in April 2020. The factual findings sought by Ms Rayman in respect of those disputed matters have been addressed already. Claim against Ms Brown As against Ms Brown, Ms Rayman submits that it should be found that Ms Brown (through her husband) failed to take reasonable care when agreeing to use sheet piling. Ms Rayman submits that a reasonable person in Mr Brown’s position, having read and understood the express recommendation not to do so contained in the Martens Report and that a contiguous piering system had been specifically devised to accommodate the integrity of the Rayman Home (as disclosed in the 2019 Dilapidation Report), would not have agreed to permit a sheet piling system in lieu of contiguous piering. Ms Rayman points out that there is no evidence on behalf of Ms Brown that Mr Brown sought advice from anyone with professional engineering qualifications about the appropriateness of departing from the Martens Report recommendation and that of Mr Zimmerman to use contiguous piering; and no evidence

that Mr Brown obtained any assurance from Scopeview that sheet piling could be used in a way that would not cause damage to the Rayman Home. In that regard, while Ms Rayman notes that there was evidence that there were pre-contractual discussions between Mr Brown and Mr Doueihi, no evidence was adduced about the content of what was discussed other than that sheet piling was explained to Mr Brown. Ms Rayman argues that Mr Brown appears to have put his own financial interests (i.e., in being able to save money using a cheaper shoring system) over and above the significant and foreseeable risk that the Rayman Land may be damaged through the use of a sheet piling system. Ms Brown, in response, says that the change in the shoring system was for a better engineering outcome. On this issue, there is no evidence to support a conclusion that Mr Brown understood at the time of entry into the Contract that a sheet piling system would be cheaper than a contiguous piling system at the time. One might well infer that part (if not the bulk) of the reduction from the fixed price specified in the initial quotation to that specified in the Contract related to the change to sheet piling (since the only other change in the content of the construction works for which provision was made in the Contract seems to have been removal of the amount for demolition) but that is largely surmise. Mr Doueihi’s

evidence at the hearing was that he thought the cost was the same (contrary, I note, to the opinion of the experts) and Mr Brown’s evidence was that Mr Doueihi told him that he would do the sheet piling at the same price (see [48] of Mr Brown’s first affidavit), that it was more modern technology and that Mr Doueihi put to him the advantage of sheet piling in terms of how quickly it could be done. I am thus not satisfied on the evidence that Mr Brown’s agreement to the use of sheet piling was because this would be to his (and his wife’s) financial advantage. Nor, however, do I accept that the change was made for a “better engineering outcome” – the suggestion by Mr Doueihi to Mr Brown that this was new (or better) methodology does not appear to have been based on any appreciation by Mr Doueihi of the real risks associated with sheet piling (of which the experts in this case had no doubt). There is nothing in Mr Brown’s evidence to suggest that his decision to endorse the use of sheet piling had anything to do with a belief that the methodology was new or better. Ms Rayman further submits that Ms Brown failed to take reasonable care by failing to comply with Conditions 13 and 14 of the Modified Development Consent (i.e., the notification conditions). Ms Rayman argues that it was Mr Brown who took on the responsibility to provide to his neighbours the geotechnical report and

details of the excavations (based, it seems, on the fact that it was he who sent the information to Mr Stockley and then later to Mr Rayman and Mr Weinberg) and that he failed to do so prior to 22 April 2020 when the construction certificate was issued. Ms Rayman argues that the task of complying with Conditions 13 and 14 was not delegated to Scopeview. In this regard, Ms Rayman says that cl 40.1 of the Contract, which places an obligation on Scopeview to ensure that the “building works” comply with the terms of the Development Consent and Modified Development Consent, relates to actual construction work being performed by the builder (pointing to the definition of “building works” as “the building work to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents and includes variations”). Ms Rayman thus argues that, unless the Development Consent conditions relate directly to actual construction work being performed by it, Scopeview is under no contractual obligation to comply with them. (Ms Brown, on the other hand, submits that cl 13 of the Contract, read together with cl 5, makes plain that all activities, particularly physical building activities but including the provision of complying notices were exclusively the responsibility of Scopeview under the contract, to the express exclusion of her.) I have

already found that there was no evidence that compliance with Conditions 13 and 14 was delegated to Scopeview. In opening submissions, Ms Rayman also contended that Ms Brown had failed to exercise reasonable care in failing to comply with Conditions 25 and 26, pointing out in relation to Condition 26 that there is no evidence that any instructions were provided to Scopeview at any time by or on Ms Brown’s behalf as to the issue of underpinning and support of the Rayman Home upon Ms Brown becoming aware that the excavation would extend below the footings of the home. As to the defences raised by Ms Brown, Ms Rayman submits as follows, noting that there is no pleaded defence of apportionment. (Ms Rayman accepts that a claim under s 177 of the Conveyancing Act is an apportionable claim but says that, as s 34 of the Civil Liability Act has not been pleaded by Ms Brown, this cannot be relied on by Ms Brown.) First, to the allegation of contributory negligence (namely, that Ms Rayman contributed to her loss because she knew, or ought to have reasonably known that the Rayman Home was in a general state of disrepair and that the foundations did not comply with the approved plans, were poorly constructed, substandard and unlikely to withstand significant vibration of sheet piling, and had a positive duty to advise Ms Brown of those matters), Ms Rayman notes that (both at common law and

pursuant to s 5R(2) of the Civil Liability Act) the test of contributory negligence is objective, namely, whether the plaintiff has taken that degree of care for his or her own safety that an ordinary reasonable person in his or her position would take. Ms Rayman invokes, by way of analogy with the “eggshell skull” rule, the principle that one takes the plaintiff as one finds the plaintiff (such that if a plaintiff has some particular susceptibility, which means that the consequences of the tort are more serious for the plaintiff than they would be for someone without that susceptibility, the defendant is nonetheless liable for the damage which is caused by the tortious act). Ms Rayman argues that, if her home was in a poor state of construction (which she does not appear to concede), Ms Brown cannot take advantage of that. Ms Rayman submits that Ms Brown has not established any defence of contributory negligence and argues that no reduction of any kind should be made to the damages awarded to her as against Ms Brown on that account. Second, as to the allegation of betterment (see [C216] of Ms Brown’s response to the pleaded claim), Ms Rayman notes that Ms Brown bears the onus of establishing the facts necessary to make good a contention of betterment and says that the material facts relied on to establish any betterment are not pleaded, nor have they been elucidated in Ms

Brown’s submissions. (Pausing here, it was my understanding that this contention of betterment was not ultimately pursued by Ms Brown, in circumstances where the damages claim as pressed was for diminution in the value of the Rayman Home not a claim for restitution of the home to its pre-damage condition. I have therefore not dealt with that contention.) Ms Rayman submits that, had Ms Brown exercised reasonable care and/or complied with Conditions 3, 13, 14, 25 and 26 of the Development Consent, the Rayman Home would not have suffered damage during excavation. Claim against Scopeview As to whether Scopeview failed to take reasonable care, Ms Rayman submits that it failed to take reasonable care both when agreeing to use sheet piling and when carrying out the works. As to the decision to use sheet piling, Ms Rayman argues (as with Ms Brown) that a reasonable person in Mr Doueihi’s position would not have agreed to permit a sheet piling system in lieu of contiguous piering, having read and understood the Martens Report and the 2019 Dilapidation Report, which noted that a contiguous piering system had been specifically devised to accommodate the integrity of the Rayman Home. Ms Rayman argues that Mr Doueihi’s evidence that he obtained verbal advice from Mr Orr as to the use of sheet piling in the North Bondi area should be rejected as being inherently improbable and inconsistent

with contemporaneous communications (I have already dealt with this in the finding made when setting out the chronology of events above) but that, in any event, a reasonable person in Mr Doueihi’s position would not rely on verbal advice from a third party which had no documents about the project over and above the express written warnings contained in the Martens Report, the shoring plan prepared by Mr Zimmerman and the 2019 Dilapidation Report. As to the contention that Scopeview failed to take reasonable care when carrying out the works, Ms Rayman relies on the following matters. First, the departure from the vibration limits specified in the Martens Report (which Ms Rayman notes formed part of the construction certificate documents with which Scopeview was obliged to comply, both under the Contract and at law generally (pursuant to s 18B(1)(c) of the Home Building Act)). Second, that Scopeview placed the offset pegs that set out the back of the permanent wall alignments for the Brown house at the wrong location and permitted an excessive gap of 300 mm to 400 mm between the sheet piling and external basement walls. Ms Rayman says, in lay terms, that the sheet pile wall closest to her home was placed in the wrong location and too close to her home. Third, that Scopeview failed to raise any enquiry with Meso as to the vibration limits imposed by the Martens Report after the

Martens Report (and the vibration levels prescribed in it) became part of the construction certificate. Further, Ms Rayman argues that, in the dealings between Scopeview and its subcontractors (Meso, IDC and EIA), the allocation of risk as to damage to adjacent properties was borne by Scopeview. Ms Rayman emphasises that Scopeview had complete control of the work site and was responsible for all works, including excavation works carried out by third parties. Ms Brown’s submissions As already adverted to, Ms Brown places weight on the fact that, under the Contract, control and exclusive possession of the Brown Land was given to Scopeview, which was contracted to do the work (27/10/25; T 63). Ms Brown argues that Mr Brown was simply acting as a “conduit” of communication between Ms Rayman and Scopeview. Ms Brown distinguishes between the pleaded breaches which relate to “operational construction” acts and omissions (sheet piling placement, vibration monitoring, underpinning, engineering design decisions) ([C.109](c)-(j) and [C.110](d)-(j)), which she says are matters falling squarely within the exclusive domain of Scopeview, and the pleaded notification failures. As to the former (“operational construction” acts/omissions), Ms Brown argues that Ms Rayman’s pleaded case against her in negligence is inconsistent with Ms Rayman’s allegation that Scopeview had occupation and control

of the site (referring to [C.84](b), [C.66] and [C.78]). Ms Brown argues that, on Ms Rayman’s own pleading, she (Ms Brown) had no operational control and no capacity to direct or prevent the risk-creating conduct alleged. (I have to some extent dealt with this above when considering foreseeability of risk.) Ms Brown submits that Ms Rayman’s pleaded case impermissibly conflates her status as owner of the Brown Land with responsibility for the physical execution of excavation and shoring works said to have removed or weakened support to the Rayman Land. Ms Brown argues that she took reasonable precautions in the planning and certification of the proposed works (appointing expert consultants: Mr Quinton to prepare plans and obtain a development approval for the Brown Land; a private certifier (BCA and then Keystone Building Certifiers); engineering experts; and Scopeview). Ms Brown says that Scopeview and the building experts were provided with all the documentation required to obtain a valid Development Consent and to execute the works; that Scopeview was at all times properly briefed by her and that she ensured that all the plans, specifications, drawings, and consents and correspondence were provided to Scopeview. Ms Brown says that Ms Rayman cannot establish, merely by reliance on ownership of the land and appointment of professionals, that she (Ms Brown) exercised operative

control over the manner in which excavation and shoring works were undertaken. As to the former alleged breaches (failures to notify), Ms Brown does not dispute that she did not give notice within the specified time in respect of the intended shoring system on the boundary and excavation activities (Conditions 13 and 14 of the Modified Development Consent) but argues that the obligation to do so was that of Scopeview under the Contract (not one which was delegated by her to Scopeview) to the exclusion of her. (Ms Brown also argues that Ms Rayman had constructive notice of the intention to use sheet piling – see below). Ms Brown argues that, in any event, such failure is not the proximate cause of the damages suffered by Ms Rayman (that damage being caused by the admitted activity of vibrations of the shoring system, an activity that Ms Brown says was within the exclusive purview of Scopeview to the exclusion of her). Ms Brown denies that there is any causal connection between this aspect of the alleged negligence (i.e., the alleged failure to provide notices) and Ms Rayman’s harm. Further, Ms Brown argues that a claimed “lost opportunity to seek injunctive relief” requires proof that, had notice been given at an earlier stage, Ms Rayman would probably have taken effective steps that would have prevented the damage and she submits that a deliberate decision was taken not to take

preventative action. Ms Brown further says that Ms Rayman had “ample” opportunity to apply for an injunction on receipt of the communication from Scopeview (i.e., it would seem, over the weekend immediately prior to 28 April 2020). (Ms Brown notes that the allegation that Ms Rayman was deprived of an opportunity to stop the damage was abandoned by the amendment to the List Statement in April 2025.) (I deal with this when I come to the issue of causation.) Further, in her closing submissions, Ms Brown argues that there is nothing in the language of Conditions 13 or 14 of the Modified Development Consent that suggests that the notices contemplated are mandatory. Rather, Ms Brown says that they should be considered as directory or procedural. Ms Brown relies on authority to the effect that, where a party is proven to have actual knowledge of the content of a notice, the notice may be treated as having been complied with and that formality may not be necessary, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ. In that regard, Ms Brown submits that it is clear from Mr Weinberg’s queries to Waverley Council that he was aware (in March/April 2020) that it was proposed that sheet piling be used. Again, this goes to the question of causation, with which I deal in due course. However, at this point I simply

note that the highest that the evidence goes is that the Raymans were aware (from Mr Zimmerman’s conversation with Mr Weinberg) that there was a proposal to use sheet piling. The fact that the Raymans may have accessed the website at an earlier time does not establish a knowledge that sheet piling was going to be used. Indeed, that seems to be why Mr Weinberg made the enquiries of the Council – namely, to ascertain what was proposed and if it was permissible. As to the contributory negligence defence, as already noted, Ms Brown contends that the footings of the Rayman home were, to Ms Rayman’s knowledge, “non-compliant, vulnerable and defective”. Mr Manning, Ms Brown’s expert structural engineer, was of the opinion that the structural elements supporting the Rayman Home were founded on a slab on the ground rather than on proper footings, which made them and the supported structure susceptible to damage from vibration associated with the installation of sheet piles. Ms Brown contends that Ms Rayman ought reasonably to have known that her foundations were inadequate (by reason of visible cracking, uneven settlement and disintegration of the sub-floor) and ought to have known that excavation nearby could cause damage. Ms Brown submits that, knowing that adjacent excavation was imminent, Ms Rayman owed a duty to take reasonable care for her own property (invoking s 5R of the Civil

Liability Act), such as speaking to Mr Brown, warning the excavator, obtaining engineering advice, allowing access for underpinning, monitoring cracking, seeking protective works or seeking injunctive relief. Ms Brown contends that Ms Rayman failed reasonably to advise Ms Brown (or Scopeview) of the condition of the basement, so that Ms Brown could take precautions to ensure that the footings were fortified. Ms Brown contends that, by reason of Ms Rayman’s contributory negligence, there should be a reduction in any damages pursuant to s 5S of the Civil Liability Act to such extent as is just and equitable. (Ms Brown places weight on the attribution by two of the experts of a 5% percentage contribution to Ms Rayman by reason of the condition of the basement area.) Ms Brown says that there were multiple opportunities for Ms Rayman to have avoided or minimised damage to her property and that Ms Rayman failed to do so by taking obvious and simple action. Ms Brown argues that repeated expressions of grave concern, without follow-up action, suggest that Ms Rayman was aware of the risk but failed to act reasonably to avert it. Ms Brown further argues that this inaction can only reasonably be explained by the evidence of Ms Brown that Mr Weinberg had told her that, if she proceeded with the build, she would be building a new house for his daughter. Ms Brown (who attaches sinister

weight to this conversation in circumstances where the initial claim was for demolition and rebuilding of the Rayman Home at a cost of in excess of $3 million) says that this goes not to mitigation but to “motive” and contribution. Ms Brown says that the damages that were initially claimed by Ms Rayman were “grossly” excessive (emphasis as per submissions) being the complete demolition and rebuild of the Rayman Home whereas ultimately the cost of repair was $42,486.20. Ms Brown also contends that, in circumstances where Scopeview was aware of the danger but failed to take reasonable protective steps (such as a “simple inspection of the foundations”), negligence should be found on the part of Scopeview. Ms Brown suggests that Mr Doueihi displayed a dismissive attitude by failing to ask the Raymans if he could view the basement which he was aware was in the immediate proximity of the vibration. Scopeview’s submissions Scopeview accepts that damage in the form of cracking and movement occurred to the Rayman Home but it submits that this was not a result of failure to exercise reasonable care on its part. Scopeview contends that the building works were constructed in accordance with the plans and specifications for the works. As to the allegations of breach of duty contended for in the pleading, Scopeview responds as follows. First, as to the allegation of failure to implement the

recommendations in the Martens Report, Scopeview acknowledges that the Martens Report recommended against the use of sheet piles but submits that it was not unreasonable for it to have followed the advice of Meso, IDC, VMS and EIA as to the shoring system. In particular, Scopeview notes that IDC’s advice in each of its Design and Analysis reports was that “[t]he design and construction of the shoring and the excavation will not have an adverse impact on the adjacent properties”; that EIA’s advice was that sheet pile shoring was a feasible shoring solution provided vibration was controlled; and that VMS, a specialist independent contractor, gave advice as to maximum vibration limits during the sheet piling works. Scopeview submits that it acted reasonably in relying on the advice given by Meso, IDC, VMS and EIA. Second, as to the alleged failure to implement recommendations in the EIA Report, Scopeview notes that the recommendation in that report was to use “appropriate construction methodologies” and “strict monitoring regimes such as vibration monitoring”. Scopeview submits that, insofar as it is alleged that the method of installing the sheet piles was inappropriate, this was a matter for Meso to implement, as the specialist shoring contractor. As to vibration monitoring, Scopeview says that it implemented a vibration monitoring regime through VMS. Scopeview contends that it

reasonably relied on IDC and VMS to advise on the maximum vibration levels and on Meso to adhere to them. Third, as to the alleged failure to comply with the Modified Development Consent Conditions, Scopeview accepts that the IDC and EIA Reports were not provided to Ms Rayman until 24 April 2020, two days after the Construction Certificate was issued (and thereby appears to accept that Condition 13 was not satisfied). However, Scopeview argues that Ms Rayman has not established that the failure to provide these reports to her prior to the Construction Certificate being issued caused loss (see Issue 4 in relation to causation). As to Condition 26, which required “the person causing the excavation” (that is, the owner or developer) to preserve and protect buildings on an adjoining allotment of land and, if necessary, underpin and support the building in an approved manner, Scopeview notes that this substantially replicates cl 31.4 of Ordinance 70 of the Local Government Ordinances, which was considered by Giles J (as his Honour then was) in Pantalone v Alaouie (1989) 18 NSWLR 119 (Pantalone v Alaouie), his Honour there holding (at 131) that “the person causing the excavation” was intended to mean the person required to give notice, that is, the owner and developer of the land to be excavated and was not intended to impose multiple liability on the owner, contractor and

subcontractors. Scopeview submits that, as a particular of negligence, this third alleged failure amounts to an allegation of failure to take reasonable care to provide support for the Rayman Land, which is addressed in relation to the fifth allegation (see below). As to the fourth allegation, that Scopeview “failed to avoid causing vibration damage”, Scopeview accepts that there was damage caused by vibration. However, Scopeview maintains that this was not caused by a failure on its part to exercise reasonable care. Scopeview again points out that it engaged VMS, a specialist vibration management consultancy, on Meso’s recommendation, to advise on appropriate vibration levels and to carry out vibration monitoring and, as noted above, EIA did not disagree with the vibration limits proposed by IDC or VMS. Scopeview submits that it reasonably relied on IDC’s and VMS’ advice as to the maximum vibration limits to be adopted, VMS to monitor vibration levels and on Meso to adhere to the vibration limits. As to the opinion expressed by the structural engineers that Scopeview should have questioned the vibration limits proposed by VMS, Scopeview argues that it was not unreasonable for it to have accepted VMS’ advice at the time, given that VMS was a specialist vibration contractor and Meso had given assurances that Meso would be taking steps to minimise vibration (including that it

would pre-drill the shoring alignments in order temporarily to loosen the soils, run “vibro heads” (rotary vibration heads on the piling machine) at high frequencies and float the sheets down). Further, it is submitted that, in view of VMS’ failure to reconsider the vibration limits after being notified that damage had been caused, it is unlikely that VMS would have done so prior to damage occurring even had Mr Doueihi questioned the vibration limits. Scopeview points out that it was not involved in placing the vibration monitors; that Mr Blake of VMS advised Scopeview that the vibration monitors had been set to trigger alarms “at 8mm/s warning level and 10mm/s halt level”; and that Mr Doueihi’s evidence is that he is not an expert in vibration levels and he relied on Mr Blake’s advice. Mr Doueihi’s evidence is that he relied on the advice of Mr Blake and that, if he had been informed by VMS that the safe limit had been exceeded, he would have instructed Meso to stop work immediately. As to the fifth allegation (the alleged failure to maintain lateral support for the Rayman Land) Scopeview again submits that it reasonably relied on: Meso and IDC to design the method of support for the excavation; IDC’s certification of the proposed shoring design; EIA’s approval of the method devised by Meso and IDC; and Meso to install the sheet piling and internal bracing in accordance with

the design and the recommended vibration limits. Insofar as any damage may have been caused as a result of any deflection of the sheet piles while they were in cantilever mode in the period between 12 June 2020 (when IDC issued an Excavation Certificate to excavate to RL 12.7 in order to install the bracing) and 18 June 2020 (when Meso completed installation of the bracing), Scopeview points out that it was Meso who determined when the waler and cross-bracing were to be installed. Scopeview contends that the delay was on Meso’s part. Insofar as there was over-excavation when digging out the site to install the temporary bracing, Scopeview contends that the responsibility for this lies with Meso (referring to Mr Manning’s opinion in that regard). Scopeview emphasises that each of Meso and VMS was a specialist independent contractor. Scopeview submits that it delegated its duty of care in respect of the sheet pile installation and monitoring of vibration. As to the sixth alleged failure (removing, reducing or destabilising the lateral support for the Rayman Land), this is dealt with under Issue 2 below. As to the building works themselves, Scopeview submits that providing for a gap between the shoring wall and the external basement wall was not negligent. First, it notes that, while the drawing in the Temporary Shoring Plan shows the shoring wall up against the exterior basement

walls, Note 3 of the Temporary Earth-Retaining System Notes to the Temporary Shoring Plan provided for a gap between the shoring wall and the external basement wall to be determined by the Head Contractor (i.e., Scopeview). Second, Scopeview points to the evidence of Mr Doueihi that sheet piling cannot be put against the wall because of the need to provide for drainage and that his practice was to maintain a gap of 200 mm between the sheet pile wall and the exterior basement wall (which in Mr Appleyard’s opinion was a reasonable practice). Determination as to breach of common law / s 5B duty of care There was debate in the course of closing submissions as to the time at which Ms Rayman contends the breach of the duty of care arose on the part of the respective defendants. Ms Rayman contends for a finding of breach as and from 19 December 2019 and 21 January 2020 when the decision to use sheet piling was made (which I have found was at the latest, on entry into the Contract). The significance of the timing (as adverted to earlier) is that Ms Rayman contends that, as at that point, there was nothing from any competing structural or geotechnical engineer that would permit Ms Brown and Scopeview to ignore the recommendations in the Martens Report (see 31/10/25; T 398) against the use of the sheet piling. While Ms Rayman accepts that Mr Brown may not have understood as at 15 June

2018 (when the Martens Report was issued) the difference between sheet piling and contiguous piling, Ms Rayman points out that, by mid-November 2019, Mr Brown had received no less than four documents warning of the risk of damage (the Martens Report, Development Consent, Modified Development Consent and 2019 Dilapidation Report) (31/10/25; T 395-396). And Mr Brown was certainly aware by the time he was requesting in April 2020, through Mr Quinton, for Mr Zimmerman to change the structural drawings to remove the perimeter piling and to add a line on the drawings to the effect that the shoring design was being provided by others that there was a difference. Another point at which a failure to take reasonable care might be said to have arisen (as I suggested to Counsel in the course of oral closing submissions) would be when, conscious of the risk of harm and knowing what the Martens Report had said, there was an opportunity to change direction away from the use of sheet piling and the decision was made not to do so in the knowledge of the Martens Report warning (see 31/10/25; T 404). That would place any breach as occurring at least in the period from March/April 2020 to 28 April 2020. In that period, up until the EIA Report was issued on 20 April 2020 there was no geotechnical advice supporting the use of sheet piling. And, even when it was issued, the EIA Report did not deal

with a critical issue (the startling discrepancy in the vibration limits recommended by the Martens Report and those incorporated in the IDC Temporary Shoring Plan, adopted from the Works Summary Document and set out in the VMS proposal). The suggestion in submissions (by Ms Brown) that there was no “change” in relation to the proposed piling system cannot in my view be accepted (see 31/10/25; T 419), as I have already concluded. Apart from the fact that Mr Brown himself deposed to a decision (said to be in around March 2020, though this is not consistent with the chronology), about “changing” the shoring system, there clearly was on the objective documents a change (based on the structural drawings at that time) provided for contiguous piering; the Contract contemplated sheet piling; and Mr Doueihi gave evidence of discussions before the Contract was entered into in which he says sheet piling was explained to Mr Brown (see 29/10/25; T 231-233). I have concluded that a reasonable person in Ms Brown’s position would not have agreed to use sheet piling in the face of the clear recommendation against its use without obtaining considered expert advice as to its feasibility having regard to the conditions of the site and the steps necessary to minimise damage if it were to be adopted. I do not accept that reliance on the builder’s choice of sheet piling was reasonable in

circumstances where Ms Brown knew (through her husband) that there was geotechnical engineering advice to the contrary. By the time there was competing geotechnical advice (the EIA Report) the die was to all intents and purposes already cast – the sheet piles had been ordered (and presumably delivered since installation began mere days thereafter). It is not to the point to say that this was Mr Doueihi’s decision. That does not absolve Ms Brown from responsibility in circumstances where her agreement to the use of sheet piles was necessary for the works to proceed and her husband adamantly endorsed the decision (“[b]asically, I want to use the sheet piling”) when faced with a query as to its use. The emphasis placed by Mr Brown on it not having been “disallowed” is telling in that regard. It is also relevant to note that the decision appears to have been made not to obtain Martens’ re-assessment of the suitability of sheet piling (since the decision was made to accept the higher EIA quote rather than that of Martens, apparently on the recommendation of Meso). As to the alleged failure to use reasonable care by reference to the notification failure, Ms Brown accepts that the notices required by Conditions 13 and 14 of the Modified Development Consent were not served in the time required. As to the contention that the obligation was one which lay on Scopeview, I do not accept

this. True it is that the Modified Development Consent does not make clear where the notification obligation lies (unlike some conditions which expressly specify the entity required to comply with the obligation). However, as the owner is required to certify compliance with that obligation some responsibility must rest on the owner. (See, albeit in a different context, Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26, where a claim was made against the owner of land for a declaration that demolition works were carried out in breach of s 76A(1)(b) of the EPA Act and it was common ground that the demolition work did not comply with the development consent (at [51]). White JA (with whom Beazley P and Meagher JA agreed) observed (at [142]) that the director and shareholder of the owner of the land, who was responsible for the day-to-day management of the company, had relied on the advice of his builder and building consultant “in reckless disregard of the conditions of the development consent”.) I accept that there is nothing to suggest that this obligation cannot be delegated but I do not accept that this obligation was delegated to Scopeview – there being no evidence of any such delegation and it being inconsistent with the reaction or response by Mr Brown to the enquiry by Mr Stockley. I understand that Mr Doueihi himself accepted he had a duty to

comply with the Development Consent but that does not remove the duty on Ms Brown to comply with the conditions nor to exercise reasonable care to ensure compliance with the conditions. I reject the proposition that the conditions were merely directions or procedural. They are framed in mandatory terms. I also reject the proposition that “constructive notice” in some way precludes any finding of breach. Among other things, timing of notification is of importance in that a reasonable person in Ms Rayman’s position would be entitled to expect that, until actual notice as required was given, works would not commence (and would not commence until after the requisite period – in the case of excavation works, seven days from the provision of notice). Within that period, it would be understood that there was an opportunity to take steps to challenge the proposed works. As it was, notification after business hours on the Friday before installation was to commence the following Monday was hardly sufficient or reasonable notice. The suggestion that constructive notice was sufficient in the present case elevates the communication from Mr Zimmerman to Mr Weinberg (that there was a proposal to use sheet piling) to a certainty, whereas it is clear from Mr Weinberg’s and Mr Rayman’s evidence that what they were seeking was some certainty as to what was in fact going to happen on the site in

relation to excavation. I deal under Issue 2 with the allegation of breach of the common law / s 5B duty of care by reason of the removal of lateral support. As to the failure to avoid causing vibration damage, I am not persuaded that Ms Brown was in breach of a duty of care. Ms Brown was not involved in the engagement of VMS nor in the decision as to the vibration limit level to be adopted for the sheet piling works. While she was aware (through her husband) of the recommendation in the Martens Report of a 3 mm/s vibration limit and must also be taken to have been aware of the higher levels specified by Meso/IDC and supplemented by VMS, I am not persuaded that it would be so clear to a lay person that there was such a risk in the nomination of higher levels as to warrant any further step to be taken by Ms Brown. Finally, as to the defence of contributory negligence, I am not persuaded that this has been established. The criticism as to the general maintenance or condition of the Rayman Home (whether it was in need of painting and whether there were waterproofing issues that had not been addressed) goes nowhere. It has not been shown that those contributed to the damage occasioned by the vibrations; nor do I accept that Ms Rayman had any duty to advise Ms Brown as to those matters. As to the condition of the basement, I do not accept that the defective nature of the foundations

to which Ms Brown points should have been obvious to a lay person in Ms Brown’s position. I accept that Mr Manning considered the defects to be obvious and that most people would be able to see that this was not a typical construction (30/10/25; T 344) but I am by no means persuaded that I could have formed that view by a mere visual observation of the basement. Particularly in circumstances where it appears the 2010/2011 renovations were certified by Mr Zimmerman, and there is no evidence as to how the defective footings or foundations came to be in that position, I cannot conclude that Ms Rayman should have reasonably foreseen that they were in such a defective state as to be vulnerable (or more vulnerable) to construction or excavation works next door. Moreover, though I make no finding as to this, the suggestion that the Browns would have taken steps to change the shoring system or implement other precautionary measures had they known of the condition of the basement seems inherently implausible when they chose to ignore the recommendations made in the Martens Report (based on no more than Mr Doueihi apparently telling Mr Brown that sheet piling was more modern technology and quicker to install). In any event, the premise for the contributory negligence defence is not in my view made good so it is not necessary to surmise further as to what the Browns would have done were

they aware in advance of the condition of the Rayman Home’s basement. As to the defence of betterment, as explained earlier, I do not see that this arises on the amended claim for damages. For those reasons I find that Mr Brown did breach the common law / s 5B duty of care. As to Scopeview, the complaint of breach of duty of care goes both to the decision to use sheet piling and to the carrying out of the works. As to the former, I consider that Scopeview breached its duty of care to Ms Rayman when agreeing to use sheet piling contrary to the Martens Report recommendation (and in the absence of any geotechnical advice to support that decision). It is difficult to avoid the conclusion that Mr Doueihi put forward sheet piling largely because that was the shoring system with which he was familiar. The suggestion that he relied on verbal advice from Mr Orr of these does not assist because (even if it did occur, which I do not accept is likely on the balance of probabilities) it cannot have been based on any proper assessment of the site or the proposed excavation works. As to whether it was reasonable for Scopeview (after the decision to use sheet piling had been made) to have followed the advice of Meso, IDC, VMS and EIA as to the shoring system, one needs to consider what that advice in substance was. Any oral advice from Meso prior to the Contract (which I do not accept was

given) was hardly based on any proper analysis of the site or the project. Meso’s subsequent preparation of the Works Summary Document for use of sheet piling must be understood in the context of the evidence that Meso only used sheet piling and the fact that Meso did not address why it considered it should be preferred to contiguous piering in the face of the Martens Report. IDC seems simply to have proceeded on the basis that the plan was to use sheet piling and to have adopted from Meso the proposed vibration levels. VMS similarly did not address why the vibration levels exceeded (by a considerable margin of those in the Martens Report). EIA’s advice was telling – that sheet pile shoring was a feasible shoring solution provided vibration was controlled but EIA made no mention of the recommendations as to vibration limits in the Martens Report. I accept that Mr Doueihi was a builder not a specialist structural or geotechnical engineer; nor a vibration specialist. But Scopeview was coordinating and supervising the subcontractors involved in the works, and, insofar as the decision to install sheet piling was concerned, I consider that it was incumbent on Scopeview to test the advice obtained from the specialists it retained (rather than relying on informal advice from Meso as to the proposed shoring system or discussions with Meso/IDC that were predicated on adoption of the

sheet piling system without apparent or detailed consideration of the risks identified by the Martens Report and, at a later stage, without testing with EIA the basis on which it had advised that sheet piling was a feasible shoring solution, and what it meant by the proviso that vibrations should be controlled). As to the carrying out of the works, the complaint as to the location of the offset pegs (the gap between sheet piling and the external basement walls and between sheet piling Wall 3 and the common boundary) goes nowhere in light of the expert structural engineers’ evidence. As to departure from the vibration limits (which was a, if not the, fundamental cause of the physical damage to the Rayman Home), the allegation appears to be that there was a departure from the EIA Report recommendation, which required vibration to be controlled. I accept that Scopeview exercised reasonable care in engaging a specialist vibration consultant to advise as to vibration limits. While Scopeview did not query or test the reason for departure from the vibration levels set in the Martens Report when it received the Meso/IDC advice and subsequent VMS advice as to vibration, I do not accept that this was a failure on Scopeview’s part to exercise reasonable care. I consider it acted reasonably in relying on those contractors. More problematic is the failure of Scopeview to query the vibration

limits when damage was first reported. By then, of course, some of the damage had already occurred but potentially further damage could have been avoided at that point. The structural engineering experts were agreed that there would need to be a good reason to depart from geotechnical advice (such as the Martens Report) and that, once the set vibration level limit had been exceeded, one would expect the builder to raise that issue with the vibration consultant and have the limits reviewed. Here, while Mr Doueihi did raise the issue as to vibrations exceeding the set levels he appears to have accepted the oral assurance from Mr Blake that everything was “fine” and that the vibration monitoring reports would be available. This response by VMS was not an adequate response and it is difficult to see how a reasonable builder would then simply stand by while vibrations continued. The question as to what would have happened had the sheet pile installation stopped when the first exceedance was noted (and vibration levels then reviewed) was not explored in the evidence – i.e., how much of the damage might thereby have been avoided. However, common sense suggests that at least some of the damage could have been avoided at that stage. As to damage caused by deflection of sheet piles in cantilever mode, I consider this was not due to any breach by Scopeview. Meso was in charge of the sheet

pile installation and the delay was attributable at least in part to a mechanical problem (the breakdown of an hydraulic jack). Thus, I find Scopeview breached its duty of care in making the decision to use sheet piling in the first instance, in not reviewing that decision when issues were raised as to the use of sheet piling in March/April 2020 and the need for certification of sheet piling arose; and in not testing the advice received from EIA as to the feasibility of the system at least by enquiring of EIA as to the basis on which it considered vibration could be controlled (in circumstances where there was a clear divergence between the Martens Report recommended limits and those proposed by Meso/IDC and noted by VMS). Issue 2 – Alleged breach of duty of care arising pursuant to s 177 Conveyancing Act A separate claim of negligence is made by reference to s 177 of the Conveyancing Act. Such a claim is regulated by Part 1A of the Civil Liability Act. What s 177 requires is the doing of something “on or in relation to” land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land). If so, the question is whether the person who did the act exercised reasonable care in doing that particular thing. Ms Rayman submits (and the defendants accept) that the content of the duty is to exercise reasonable care rather than a

duty of strict liability. The first issue to be determined in this case is whether, as Ms Rayman contends, the duty prescribed by s 177(2) is non-delegable (though she accepts there is some doubt as to the issue). Even if the duty is non-delegable, Ms Rayman argues that the terms of s 177 do not preclude a finding that a duty of care of the same content or scope was also owed by Scopeview. Ms Rayman’s submission that the duty imposed by s 177(2) is non-delegable is made with reference to what was said by Young AJA in John Llavero v Brett Anthony Shearer (2014) 17 BPR 33,381; [2014] NSWSC 1336 (Llavero v Shearer) at [104], in an application for injunctive relief between two neighbours. In that case, urgent relief had been sought by one neighbour against both the neighbouring owners and the builder for damage in the form of cracking to his property occasioned by building works on the property which included the removal of trees and construction of a retaining wall. Young AJA considered the better view to be (at [104]) that “if a land owner is involved with removing his or her neighbour’s support then that is a tort which involves breach of a non-delegable duty to the neighbour, so that the land owners are liable even though they may have retained a competent independent contractor”. Ms Brown does not dispute that she has obligations under s 177 of the Conveyancing Act not to do

anything to remove support from the Rayman Land. However, Ms Brown says that s 177 does not impose strict liability on an owner merely because works occur on the owner’s land. Further, Ms Brown says that, in the absence of any specific authority, the test must satisfy causation, that is that the negligence complained of caused the removal of support for the purposes of s 177. Ms Brown also takes issue with the proposition that the statutory duty is non-delegable. Ms Brown submits that the wording of s 177 suggests a general duty of care rather than a special non-delegable duty. Ms Brown says that s 177(6)(a) relates to how agreements modifying or excluding the duty bind agents; and argues that this is different from saying the duty itself is non-delegable. It is noted that there is no express statement in the statute that the duty is non-delegable or cannot be delegated. Ms Brown says that s 177 was enacted to replace the old strict common law right of support with a negligence-based duty; that it was not designed to impose an ongoing monitoring or preventative obligation akin to environmental “duty to protect” regimes. Scopeview similarly takes issue with the proposition that the statutory duty is non-delegable (at least so far as it is concerned). Of the authorities cited by Ms Rayman on the issue of non-delegability, Scopeview notes that in Burnie Port Authority v General

Jones Pty Ltd (1994) 179 CLR 520; (1994) 68 ALJR 331 (Burnie) it was observed that cases involving work by an owner of land threatening support or common walls of owners of adjoining land was one category of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable. Thus, Scopeview points out that the question of non-delegability arose in the context of the duty owed by the owner of the supporting land, rather than the duty owed by other persons (such as the building contractor and subcontractors). Insofar as Young J expressed the view that a landowner who removes support for a neighbour’s land breaches a non-delegable duty to the neighbour, Scopeview notes that the issue of whether the duty was non-delegable was not argued in that case. Scopeview points out that in Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118 (Piling v Prynew), Macready AsJ doubted that, if the foreman and bricklayer engaged by the owner of the supporting land were independent contractors, the referee’s finding that the owner was responsible for the foreman’s and bricklayer’s acts would have been inappropriate. Scopeview submits, for the following reasons, that the better view is that the duty of care imposed by s 177 was not intended to impose a non-delegable duty to ensure reasonable care is taken by others. First, the duty of care is not to

“do” anything that removes support. Scopeview says that it is not easy to see how a duty not to “do” something can be delegated. Second, Scopeview refers to the Second Reading Speech which it argues suggests that the legislature had in mind each person who does an act being responsible for taking reasonable care in respect of that person’s act. It is noted that in the Second Reading Speech, the Minister said: [T]his new duty of care is created as an addition to the common law of negligence. By the common law of negligence, I mean the general duty that each person must take reasonable care not to do anything that might cause harm to anyone else … Making the duty to support adjoining land part of the common law of negligence ensures that the duty will remain in parity with the general duty of care that applies to all people … Third, Scopeview says that the statutory provision has been held not to extend to omissions. Scopeview argues that an omission to ensure care is taken by others is not the “doing” of something in relation to land. In oral submissions, Ms Rayman clarified that the further basis on which the negligence claim was pleaded (breach of duty under s 177 of the Conveyancing Act) is put against both defendants on the narrow basis that s 177 of the Conveyancing Act imposes a non-delegable duty of care (31/10/25; T 467). Whether the duty under s 177 of the Conveyancing

Act is a non-delegable duty of care (or simply reflects the ordinary standard of care owed under the tort of negligence) is to be resolved through an application of the ordinary (and well-known) principles of statutory interpretation. It is convenient, before turning to s 177 of the Conveyancing Act, to delineate the common law relating to non-delegable duties of care because the nature of a non-delegable duty of care at common law necessarily informs the character of the duty imposed under s 177. Non-delegable duty It has recently been observed in the High Court that a non-delegable duty of care is a “creature of the law of negligence” (AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (2026) 100 ALJR 170; [2026] HCA 2 (AA) at [140] (Gageler CJ, Jagot and Beech-Jones JJ)). It is a “duty of care of a special and “more stringent” kind, namely a “duty to ensure that reasonable care is taken”” (Burnie at 550 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) referring to Kondis v State Transport Authority (1984) 154 CLR 672 at 686 (Kondis)). A non-delegable duty of care is a special and more stringent kind of duty of care in the sense that, unlike certain duties of care in which one’s liability may be eschewed upon proper delegation to a third party (such as the duty owed to an entrant by an occupier – see Jones v Bartlett (2000) 205 CLR 166; [2000]

HCA 56 at [193] and [217] (Gummow and Hayne JJ); Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 at [53] (Hodgson JA, Gyles AJA and Nicholas J agreeing)), the liability of a non-delegable duty-holder cannot be excluded or reduced “if the duty has been delegated and then not properly performed” (Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; [1997] HCA 39 at 331 (Brennan CJ), quoting McDermid v Nash Dredging Ltd [1987] AC 906 at 910 (Lord Hailsham)). In Pafburn Pty Ltd v Owners – Strata Plan No 84674 (2024) 99 ALJR 148; [2024] HCA 49 (Pafburn) at [20], Gageler CJ, Gleeson, Jagot and Beech-Jones JJ explained that this is “because the content of the [non-delegable] duty is personally to ensure that” a third party performing any function within the scope of the non-delegable duty of care “in fact takes reasonable care”. Accordingly, in AA, Gageler CJ, Jagot and Beech-Jones JJ described a non-delegable duty of care as (at [21]): … a duty which obliges the duty-holder not merely to take reasonable care to avoid a foreseeable risk of injury to another person but to ensure that reasonable care is taken to avoid a foreseeable risk of injury to that other person by any delegate of the duty-holder, being a person performing for the duty-holder a function to which the duty relates. Non-delegable duties have been identified as arising out of certain

“relationship[s] of proximity”, including of adjoining owners of land in relation to work threatening support or common walls (albeit there is some doubt as to who bears the non-delegable duty in this context), school authority and pupil, hospital and patient, and employer and employee (see Burnie at 550 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); see also Kondis at 680-687 (Mason J)). While the categories of non-delegable duties are not closed (Bird v DP (a pseudonym) (2024) 283 CLR 45; (2024) ALJR 1349 at [37] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ)), a non-delegable duty will only arise where a “duty-holder has undertaken the care, supervision or control of the person or property of another, or is so placed in relation to that person or their property as to assume a particular responsibility for their or its safety” (AA at [6] (Gageler CJ, Jagot and Beech-Jones JJ), at [272] (Gordon J), at [334] (Edelman J), at [408] (Steward J)). In this respect, as was emphasised by Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Burnie at 551, “[v]iewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care … is marked by special dependence or vulnerability on the part of that person”. Thus, in Kondis at 687-688, Mason J observed that an employer owes its employee a non-delegable

duty of care to provide a safe system of work because the employee is dependent on the employer for their safety, observing that “[t]he employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters”. Section 177 of the Conveyancing Act relevantly provides: 177 Duty of care in relation to support for land (1) For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land. (2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land). (3) For the purposes of this section, supporting land includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed. (4) The duty of care in relation to support for land does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land. (5) The

duty of care in relation to support for land may be excluded or modified by express agreement between a person on whom the duty lies and a person to whom the duty is owed. (6) Any such agreement— (a) has effect in relation to any agent of the person on whom the duty lies, and (b) has effect in relation to any successor in title of the supported land if the agreement is embodied in a registered easement for removal of support relating to that land. … (12) A reference in this section to the removal of the support provided by supporting land to supported land includes a reference to any reduction of that support. The provision in its current form was introduced by the Conveyancing Amendment (Law of Support) Bill 2000 (NSW). As is evident from the Second Reading Speech to the Bill (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 April 2000 at 29), s 177 was introduced following recommendations by the New South Wales Law Reform Commission in its report entitled Right to Support from Adjoining Land (Report No 84, 1997) (NSWLRC Report No 84). The Commission’s report was said to emanate from voiced dissatisfaction with the “state of the law relating to the removal of support of land” by judges of this Court sitting in the Commercial Division (NSWLRC Report No 84 at [1.2]). The state of affairs concerning the law of support for adjoining land that led to the

introduction of s 177 was set out in detail by Macready AsJ in Piling v Prynew at [40]-[46]. Essentially, the common law recognised that the right to support of land in its “natural state” is “an incident to the land itself” (Dalton v Henry Argus & Co (1881) 6 App Cas 740 at 791 (Lord Selborne LC)). This meant that an owner of land had a “natural right” to have his or her land “supported by the land of an adjoining owner”, but not the buildings on that land (Pantalone v Alaouie at 129 (Giles J)). Where lateral support was withdrawn by a person so as to cause subsidence in adjoining land, the owner of that land could bring a cause of action against the person in “nuisance for which strict liability attaches without proof of any negligence” (Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 (Fennell v Robson Excavations) at 493 (Glass JA, Samuels JA agreeing)). Responding to this “unsatisfactory” state of affairs, the NSWLRC Report No 84 recommended the “right of any person to bring a common law action in nuisance in respect of a reduction in support for any land” be abolished and replaced by “a regime of liability based on negligence”. The Commission explained the advantages of adopting a negligence-based system of liability in the following way (at [4.10]): • the right to support is no longer an incident of the land itself, and can, therefore, be actionable against anyone

failing to exercise reasonable care; • the right is not confined to land in its natural state; • the flexibility of the common law is retained, so as to encompass a wide variety of fact situations and remedies; • a duty of care between neighbouring landowners is established, consistent with principles developed throughout the century; and • liability for damage to land and structures can be apportioned according to fault, in accordance with basic notions of fairness. The construction of s 177 of the Conveyancing Act begins and ends with the text, read in context and in light of the statutory purpose insofar as it can be discerned from the text and context (Palmanova Pty Ltd v Commonwealth (2025) 99 ALJR 1362; [2025] HCA 35 at [4]-[5] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ); SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ)). Ms Rayman submits that the negligence-based system adopted by s 177 of the Conveyancing Act operates so as to impose a non-delegable duty of care with respect to support for land on the first and second defendant. While acknowledging that view was not clear from doubt, it was said by Ms Rayman to be supported by the “weight of authority” on the issue, citing in support Burnie at 550ff, Bower v Peate (1876) 1 QBD 321 (Bower), and Alcock v Wraith [1991] TLR 600 (Alcock),

and Llavero v Shearer. That characterisation of the duty in s 177 was opposed by Ms Brown (see 27/10/25; T 62) and by Scopeview. In my opinion, the construction of s 177 of the Conveyancing Act for which Ms Rayman contends must be rejected. Section 177(2) provides that “a person has a duty of care not to do anything on or in relation to land … that removes the support provided by the supporting land to any other land”. The wording of s 177(1) indicates that this duty of care “exists” in the form known to “the common law of negligence”. A duty framed in these terms is “always one to take reasonable care” (Lym International Pty Ltd v Marcolongo (2011) 15 BPR 29,465 (Lym International) at [198] (Campbell JA, Basten JA and Sackar J agreeing)). While Ms Rayman accepts that the “content of the duty is to exercise reasonable care rather than a duty of strict liability” (referring to Piling v Prynew at [56] (Macready AsJ)). Ms Rayman nonetheless maintains that the duty under s 177 is non-delegable. To accept that construction would involve elision of the careful distinction maintained between liability under a non-delegable duty and liability under an ordinary duty of care owed at common law. A defendant’s liability under a duty of care at common law arises from failure on the defendant’s part to take reasonable care to avoid or prevent causing reasonably foreseeable harm to the

plaintiff (Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 (Sullivan) at [42] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); Mallonland Pty Ltd v Advanta Seeds Pty Ltd (2024) 283 CLR 507; (2024) 98 ALJR 956 at [29] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ)). On the other hand, a defendant’s liability under a non-delegable duty of care arises regardless of whether the defendant is personally at fault for the foreseeable harm caused to the plaintiff (AA at [30] (Gageler CJ, Jagot and Beech-Jones JJ); St Paul’s College Ltd v Allan [2026] NSWCA 22 (St Paul’s) at [78] (Kirk JA, Payne JA and Price AJA agreeing)). Accordingly, in AA, Gageler CJ, Jagot and Beech-Jones JJ noted at [40] (see also Gordon J at [274]) that the liability of a non-delegable duty-holder “for breach of a non-delegable duty does not require it to be found that there were reasonable measures the non-delegable duty-holder could and should have taken to avoid harm occurring”. A defendant’s liability for breach of a non-delegable duty of care is thus, by its very nature, a form of strict liability rather than absolute liability (AA at [274] (Gordon J); see also Scott v Davis (2000) 204 CLR 333; (2000) 74 ALJR 1410 at [248] (Gummow J)). It may be accepted that certain terms contained in s 177, particularly s 177(6), lend support for the duty’s characterisation as a non-delegable duty.

Section 177(6)(a) provides that any agreement that modifies or excludes the duty of care under s 177 “has effect in relation to any agent of the person on whom the duty lies”. On one view, the phrase “the person on whom the duty lies” suggests that the duty imposed under s 177 is one that remains with a specific person regardless of whether they have entrusted its performance to another. However, as Ms Brown has identified, s 177(6)(a) is concerned solely with the scope of contractual modifications or exclusions of the duty. In any event, that view of s 177(6)(a) overlooks an essential component underpinning the tort of negligence: the existence of a duty of care (see, for example, Sullivan at [42] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ)). A duty of care is at common law “a duty of a specified person, or a person within a specified class” (Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 (2014) 254 CLR 185; (2014) 88 ALJR 911 at [169] (Gageler J)). A duty of care is not a duty that exists at large. As Lord Esher MR affirmed in Le Lievre v Gould [1893] 1 QB 491 at 497, “[a] man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them”. Thus, the reference to “the person on whom the duty lies” in s 177(6)(a) is simply an acknowledgement that there is capable of identification a specific person (or persons – see below)

who bears responsibility to exercise reasonable care in accordance with the terms of s 177. That accords with the requirement that any putative duty of care must be capable of definition at least by reference to (a) the person(s) who owes the duty; (b) the person or class of persons to whom the duty is owed; and (c) the kind of risks of harm that reasonable care must be taken to minimise or avoid (Footscray Football Club Ltd v Kneale (2024) 77 VR 168; [2024] VSCA 314 at [255] (Beach JA and J Forrest AJA, Emerton P agreeing)). The mere fact that there is someone “on whom the duty lies” under s 177 does not, on its own, transform what is otherwise a duty to take reasonable care into a non-delegable duty to ensure reasonable care is taken. Something more is required to indicate that the duty is non-delegable. This may include the presence of a provision expressly stating that the duty of care is non-delegable. In that regard, Pafburn is instructive. There, a majority of the High Court determined that the duty under s 37(1) of the Design and Building Practitioners Act 2020 (NSW) (DBPA) to exercise reasonable care to avoid economic loss caused by defects was non-delegable. Gageler CJ, Gleeson, Jagot and Beech-Jones JJ reasoned that the duty was non-delegable by force of s 39(1) of the DPBA, which provided that “[a] person who owes a duty of care under this Part is not entitled to

delegate that duty”. Their Honours observed (at [54]): While s 37(1) of the DBPA refers to “a duty to exercise reasonable care to avoid economic loss caused by defects” and not to “a duty to ensure that reasonable care is taken” by another person, s 37(1) is not to be read in isolation from its context. The context of s 37(1) of the DBPA includes s 39 of that Act. As explained, s 39 ensures that a person subject to the duty imposed by s 37(1) cannot discharge the duty merely by exercising reasonable care in arranging for another person to carry out any work or task within the scope of the s 37(1) duty. As such, the substance of the s 37(1) duty is to ensure that “reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the” person subject to the s 37(1) duty (as referred to in s 5Q of the CLA). By that means also, the object of s 39 of the DBPA is to ensure that liability for breach of the s 37(1) duty is personal to the person the subject of that duty. That a similar provision to s 39(1) of the DBPA is not contained within s 177 of the Conveyancing Act points powerfully against the latter duty of care being non-delegable. This conclusion is further reinforced by the context and purpose of s 177. In the Second Reading Speech to the Bill that introduced s 177 of the Conveyancing Act, the Minister for

Agriculture and Minister for Land and Water Conservation stated (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 April 2000 at 28-29): The bill that I have introduced implements the commission’s recommendations by amending the Conveyancing Act in the following manner. A new section, being section 177, is inserted into the Conveyancing Act. It creates a duty of care so that every person must not do anything or omit to do anything, on land that supports other land, so as to cause damage by removing the support provided to the supported land. As I explained previously, there is no such duty of care at present and therefore this reform cures an existing defect in the present law. [my emphasis] Furthermore, this new duty of care is created as an addition to the common law of negligence. By the common law of negligence I mean the general duty that each person must take reasonable care not do anything that might cause harm to anyone else. The common law of negligence is constantly evolving as decisions by courts are made that define the extent of the duty. Making the duty to support adjoining land part of the common law of negligence ensures that the duty will remain in parity with the general duty of care that applies to all people, and will have the benefit of modifications made to that duty, as declared by the courts from time to time. It is clear from the

Minister’s Second Reading Speech that Parliament did not intend s 177 of the Conveyancing Act to abrogate or modify any extant duty of care that a defendant may owe to a plaintiff under the general law. That much is apparent on the face of the provision itself (The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 2) [2019] NSWSC 440 at [277] (Campbell J)). This is sufficient to explain why Ms Rayman’s reliance on Burnie, Bower and Alcock does not assist her. Those decisions, especially Burnie, concern the common law’s imposition of a non-delegable duty of care on an adjoining owner of land in relation to work threatening support or common walls. They do not bespeak of the duty of care under s 177 of the Conveyancing Act, a duty which Parliament evidently intended to function as a novel duty of care in light of what it perceived was a defect in the law at the time. Although no mention is made to Burnie in the Second Reading Speech, s 177 was enacted in awareness of Burnie and the non-delegable duty of care that adjoining owners owe at common law (cf, in the context of Ch III of the Constitution, Vella v Commissioner of Police (NSW) (2019) 269 CLR 219; (2019) 93 ALJR 1236 at [19] (Kiefel CJ), at [52] (Bell, Keane, Nettle and Edelman JJ)). Specific attention was drawn to the existence of a non-delegable duty of care owed by adjoining owners in

the NSWLRC Report No 84, which nonetheless recommended the insertion of s 177 of the Conveyancing Act (at [3.42] and [4.7]): … Interestingly, in the recent case of Burnie Port Authority v General Jones Pty Ltd the majority of the High Court, in discussing the concept of the “non-delegable” duty, referred to its previous decision in Kondis v State Transport Authority, and “certain categories of case” in which it would not suffice to discharge the duty of care merely by hiring a competent independent contractor. In such cases a duty of care of a special and more stringent type arose, a “duty to ensure that reasonable care is taken”. An example of such a non-delegable category is “adjoining owners of land in relation to work threatening support or common walls”. The element common to most of the categories enumerated was said to be “the central element of control”, marked by special dependence or vulnerability. The type of case envisaged might be one in which a defendant is in control of premises, and has taken advantage of that control to introduce thereon a dangerous substance or activity. The plaintiff is a person outside the premises and without control over what takes place, but whose person or property is thereby exposed to a foreseeable risk of danger. The latter is therefore in a position of special vulnerability and dependence. The consequence is that the defendant is

under a duty of care which “varies in degree according to the magnitude of the risk involved and extends to ensuring that such care is taken”. … The issues relating to rights of support from adjoining land are wider than those canvassed in Dalton v Henry Angus & Co, so the Commission considers that it would not be sufficient simply to provide that the rule established in that case no longer applies. As well, abolition of that rule may have unintended consequences for rights associated with ownership of land. As a result of decisions including Burnie Port Authority v General Jones Pty Ltd general principles of negligence will already apply to actions of a person that cause damage to neighbouring land through the escape of hazardous substances. The reforms that the Commission proposes relate only to compensation for damage caused by removal of support of land or buildings. [citations omitted, emphasis in original] A construction of s 177 of the Conveyancing Act that promotes the purpose or object underlying the Act is to be preferred over a construction that does not (Interpretation Act 1987 (NSW), s 33 (Interpretation Act)). In light of the text and context of the provision, the purpose would not be achieved by construing s 177 as imposing a non-delegable duty of care. Ms Rayman nevertheless contends that the interpretation of s 177 which she seeks is supported by authority,

particularly this Court’s decision in Llavero v Shearer. In that case, the first and second defendants were owners of property adjoining the plaintiff’s land. The first and second defendants instructed a builder to assist with removing trees and shrubs along part of the dividing fence that adjoined the plaintiff’s land. In the course of the builder so doing, part of the dividing fence collapsed. A retaining wall was thereafter erected in order to support the land on the plaintiff’s property. The plaintiff commenced proceedings against the defendants and the builder for contravention of s 177 of the Conveyancing Act. Young AJA concluded that there had been no breach of s 177 by either the first and second defendants or the builder because the excavation had not caused any damage to the plaintiff’s land. However, his Honour observed (at [105]) that, “… had there been any damage, the first and second defendants would have been liable for that damage. The [builder], which was the actual contractor which was responsible for the damage, would also have been liable”. As Young AJA earlier explained (at [104]) “the better view is that if a land owner is involved with removing his or her neighbour’s support then that is a tort which involves breach of a non-delegable duty to the neighbour”. Ms Rayman contends that these remarks by Young AJA support the proposition that s 177 imposes a

non-delegable duty of care. I do not accept that Llavero v Shearer is authority for the proposition advanced by the plaintiff. Whether s 177 imposes a non-delegable duty was not the subject of argument in Llavero v Shearer. Young AJA specifically acknowledged (at [45]) that the point had not been raised before his Honour. That being so, Llavero v Shearer holds no precedential weight on the issue of s 177’s construction (see, for example, Spence v Queensland (2019) 268 CLR 355; (2019) 93 ALJR 643 at [294] (Edelman J); Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; (2019) 93 ALJR 1007 at [28] (Kiefel CJ, Bell, Keane and Gordon JJ)). A case is only authority for what it decides (Coleman v Power (2004) 220 CLR 1; (2004) 78 ALJR 1166 at [79] (McHugh J); Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [87] (Leeming JA)). It is therefore not necessary nor appropriate to consider the correctness of Llavero v Shearer in these circumstances (see Queensland Nickel Sales Pty Ltd v Park (Liquidators) of Queensland Nickel Pty Ltd (in liq) (2025) 312 FCR 225; [2025] FCAFC 129 at [51] (Markovic, Halley and Wheatley JJ)). Once Llavero v Shearer is put to one side, there is nothing arising from the text, context and purpose of s 177 that warrants construing the provision as imposing anything but a duty to take reasonable care. (I note that Ms

Rayman disavowed in oral submissions that her case was also being run on the alternate basis that the first and/or second defendants had breached a non-delegable duty of care owed at common law, notwithstanding that she placed heavy reliance on the authorities underlying a common law non-delegable duty of care to support her preferred construction of s 177.) My conclusion that the duty under s 177 of the Conveyancing Act is not properly characterised as a non-delegable duty of care does not, however, resolve the related questions of who owes the statutory duty of care and whether either of or both of the first and second defendants may nonetheless be liable under its terms. During oral argument, Scopeview resisted any contention that the duty under s 177 was intended to be imposed “at large on [persons] such as builders and others who might do something in relation to land” (31/10/25; T 451). Contrary to Scopeview’s submissions, in my opinion, the legislature intended the duty created by s 177 of the Conveyancing Act to apply at large to persons beyond merely the landowner, including builders and developers. The provision speaks of the bearer of the duty under s 177 as “a person” (not limiting it to the owner of the land). By force of s 8(b) of the Interpretation Act, that language necessarily encompasses the plural unless a contrary intention appears from a reading of the

statutory text as a whole (Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651; (1969) 43 ALJR 206 at 656-658). No such intention is apparent from the text of the Conveyancing Act, which makes no attempt to confine the meaning of “person” to the singular. That the reference to “person” encompasses the plural in s 177 is also consistent with the Minister’s Second Reading Speech, which explicitly acknowledged that the intention of the provision was to impose “the duty of care upon all persons—not just the owner—and therefore takes in people such as excavators and builders” (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 April 2000 at 30). The NSWLRC Report No 48 had also recommended that the proposed duty of care be imposed on persons beyond the landowner (at [4.13] and [4.19]): The proposed right to support in negligence would create a duty of care, imposed upon any person (not necessarily the owner of the land) carrying out or involved in an activity … having an effect on land in favour of all persons enjoying the ownership or use of any other land. … The proposed duty of care will be imposed on any person performing, or concerned in, the relevant prohibited activity and will be owed to any person enjoying the use of the affected land. The term “person” reflects the intention to ensure that the duty of care created by s 177 of the Conveyancing Act is

imposed on persons whose activities on supporting land affect the support it provides to supported land. That is so regardless of that person’s relationship or connection to the supported land, and whether they had any particular involvement in the activities that saw the support removed from the supported land. That construction coincides with authority. In Lym International, the appellant developer owned land adjacent to the respondent, Mrs Marcolongo. The developer made arrangements for demolition and excavation work to be carried out on his land, and employed a sheet piling company to shore up the excavation site adjacent to Mrs Marcolongo’s land. While the sheet piling was being installed, Mrs Marcolongo’s land suffered subsidence. The primary judge determined that the developer had breached the duty of care imposed under s 177(2) of the Conveyancing Act in deciding to use sheet piling. The Court of Appeal (Campbell JA, Basten JA and Sackar J agreeing) agreed, observing (at [209]-[211]): Even though the decision to use sheet piling was made with a view to providing support for the neighbouring land, the judge was right, in my view, in concluding that the developer had done something in relation to land that removed the support. The inquiry that s 177(2) calls for is: (i) whether the defendant has done anything on or in relation to land; (ii) if “yes” to (i), has what the

defendant did in fact removed the support, and (iii) if “yes” to (ii), did the defendant exercise reasonable care in doing that particular thing. In my view, the judge was right in concluding that permitting the sheet piling system to be used was “doing something” in relation to land. It involved the developer making rudimentary enquiries, and then giving its approval for the adoption of that system. When it was a system to be used on the land, that giving of approval was clearly “in relation to” the land. Even though it can be accepted that the purpose of the developer in using the sheet piling system was endeavouring to support the neighbouring land, that does not answer the question whether permitting the use of the sheet piling system was something that “removed the support provided by the supporting land …”. The characterisation of the adoption of the sheet piling system should be carried out bearing in mind the function that the sheet piling system had in the overall building job. Making the excavation would inevitably remove the support that the excavated earth had provided to the adjacent land. The sheet piling system was intended to provide an alternative means of support for the adjacent land. However, it should be understood as an integral part of an activity that removes support from the adjacent land. That is exactly how the judge treated it - the contiguous pile

wall had been intended as “a substitute for the support provided by the ground beneath No. 5”, and the Developer had chosen to alter that substitute means of providing support. [emphasis in original] Similarly, in Brown v Etna Developments Pty Ltd [2025] NSWSC 358, the plaintiffs owned land adjacent to a development site owned by a developer, Etna Developments Pty Ltd. The plaintiffs alleged that their land had been damaged as a result of excavation work conducted by Nutek Constructions Pty Ltd, a builder, on behalf of Etna. The plaintiffs contended that the builder and developer, as well as the builder’s legal director, shadow directors and subcontractor, each breached the duty of care under s 177(2) of the Conveyancing Act that each owed to the plaintiffs by failing to take reasonable care to support the soil under the plaintiffs’ land. Rees J found (at [223]-[224]) that, in excavating the development site, the developer (by commissioning the builder), the builder and the builder’s directors and subcontractor each “did things on the supporting land [the development site]” that reduced or removed support to the plaintiffs’ land. Rees J concluded that each defendant was negligent and independently breached the duty of care owed the plaintiffs under s 177 of the Conveyancing Act (at [222]-[225], [232], [244], [246]). Those findings were not overturned on appeal (see Kalantzis v

Brown [2026] NSWCA 17 (Kalantzis v Brown)). There is accordingly no principled reason why, in light of the statutory text, context and purpose, the duty under s 177 of the Conveyancing Act cannot be imposed equally on the first defendant as the landowner and the second defendant as the builder. In those circumstances, it is convenient to turn to the breach of the duty of care under s 177 of the Conveyancing Act alleged against each of the first and second defendants. Determination as to nature of duty As explained above, I have concluded that the duty of care is not a non-delegable duty. However, I accept the proposition that the duty can be owed by more than one person (i.e., the building owner and builder or subcontractor) at the relevant time. I turn then to consider whether the duty was breached by Ms Brown and/or Scopeview. Claim against Ms Brown Ms Rayman argues that permitting the sheet piling system to be used was “doing something” in relation to the land, in that it involved Ms Brown giving approval (through her husband) for the adoption of that system. Thus, Ms Rayman submits that, through the decision to use sheet piling in lieu of a contiguous pile wall, Ms Brown has done something in relation to land that removed support from the Rayman Land. As to whether what Ms Brown has done removed support from the Rayman Land, Ms Rayman submits that the adoption of the sheet

piling system should be characterised bearing in mind the function that the sheet piling system had in the overall development. Ms Rayman says that carrying out the excavation as part of the development would inevitably remove the support that the excavated earth had provided to the Rayman Land and argues that, while the sheet piling system was intended to provide an alternative means of support for the Rayman Land, it should be understood as an integral part of an activity that removed support from the Rayman Land. As to whether Ms Brown failed to take reasonable care, Ms Rayman relies on the matters referred to in relation to Issue 1. The failure to comply with the conditions is also relied on by Ms Rayman to establish a failure to take reasonable care with respect to the claim under s 177(2) of the Conveyancing Act. Claim against Scopeview As to the claim against Scopeview, Ms Rayman says (and as I apprehend it Scopeview accepts) that there should be no contest that Scopeview has done something in relation to land that has removed the support from the Rayman Land. Ms Rayman submits that Scopeview’s actions are sufficient to have done something in relation to land that removed support and relies again on the allegations of negligence in relation to Issue 1 for the contention that Scopeview failed to exercise reasonable care in so doing. Ms Brown’s submissions Ms Brown does

not dispute that the Rayman Land relies on the Brown Land for lateral support. Nor does she dispute that the Rayman Home was damaged in the execution of the building works on the Brown Land “specifically the vibration in the course of sheet piling” undertaken by Scopeview and its appointed subcontractors in constructing the sheet piling on the boundary between the Rayman Land and the Brown Land. However, Ms Brown argues that the wording of s 177 suggests that what is meant by “anything” done “on or in relation to the land” suggests activities that physically affect “the land”. Ms Brown says that there is no case law in this context that suggests that planning and approvals fall within the scope of “anything”. Ms Brown argues that s 177 codifies and extends the common law right of lateral support and focuses on works or activities that could withdraw the natural or artificial support of neighbouring land and does not extend to statutory approvals. Ms Brown contends that liability under s 177 must rest upon a physical act that removes or alters support, not upon what she characterises as “administrative non-compliance”, failure to provide notice under Conditions 13 and 14 of the Development Consent. Ms Brown points out that this constitutes an omission, not an act. Ms Brown points to the statements of Macready AsJ in Piling v Prynew at [57] to the effect that the statutory duty

of care does not extend to omissions to act (such as a failure to prevent a loss of support from occurring) and at [64] that that there could be no breach of the s 177 duty where there was only a failure to do something. Ms Brown also refers to Cohen v Double Bay Bowling Club (No 4) [2021] NSWSC 872 (Cohen v Double Bay Bowling Club) at [67] as to the provision being directed to acts not omissions. Further, Ms Brown argues that the duty that is owed under s 177 is not attached to the owner of land per se but is a duty imposed on the person in control, referring to Cohen v Double Bay Bowling Club at [66]-[70] and Fennell v Robson Excavations, where a distinction was drawn (albeit prior to s 177 entering into force) between an owner who authorises work and one who gives over control. In that regard, Ms Brown says that there was no direction given by her to Scopeview; that she was excluded from the site; and that she did not and could not know how and when the activities took place. Ms Brown contends that the duty to provide notices under the contract was exclusively that of Scopeview or dependent on Scopeview, which had complete control over the sheet piling and excavation activities, advising her of those matters. Ms Brown contends that, in circumstances where the owner has surrendered control to an independent contractor, there is no liability for the conduct of the

contractor. Ms Brown submits that any alleged negligence must be causative of damage within the contemplation of s 177 of the Conveyancing Act. Ms Brown contends that she performed her obligations in a reasonable manner and delegated her obligations to a number of professionals and provided them with all the documents, plans and approvals to commence and complete the build, and to provide notice to the neighbours as a result of the impact of cl 13 of the Contract (read with cl 5). Ms Brown’s position is that Scopeview was contractually bound to provide notices to the neighbour in relation to building work activities in accordance with the provisions of the Development Consent. Ms Brown says that cl 5 of the Contract concerned compliance with “other Law”; cl 39.1 specified that Scopeview would build the works in accordance with the Development Consent which included compliance with the EPA Act and any other applicable law. I have already considered the issue in relation to notices above. Scopeview’s submissions Scopeview accepts that a decision to engage a sheet piling contractor to install a sheet piling system amounts to “doing something” in relation to the supporting land and that the installation of sheet piling removed support for the Rayman Land. However, Scopeview contends that, in performing that act, it was reasonable (and not a failure of the duty to exercise care) for

it to engage Meso to provide the shoring design and to install the shoring system and for Scopeview to rely on each of IDC, VMS and EIA to review and advise on the appropriate vibration limits. As to Ms Rayman’s complaint that Scopeview’s marking out of the location of the shoring wall at an offset of approximately 300 mm from the external basement wall to be constructed on the Brown Land (i.e., approximately 400 mm instead of 700 mm from the common boundary), Scopeview submits: first, that this was not contrary to the Temporary Shoring Plan and was required to provide for drainage (and therefore not negligent); and, second, that Ms Rayman has not established that it caused a removal of support. Scopeview notes that the evidence of the structural engineers and Mr Wong was to the effect that locating the sheet pile wall approximately 400 mm (0.392 m) from the boundary with the Rayman Land would have an insignificant effect on the ground movement affecting the Rayman Land. Determination Section 177 in its terms requires an act (doing “anything”) on or in relation to land which removes support from another person’s land. It does not encompass omissions or failures to do something (see the authorities referred to above). Therefore, failure to comply with Conditions 13 and 14 is not doing something on or in relation to the Rayman Land within s 177. That disposes of the contention

that the failure to provide notification constituted a breach of s 177 of the Conveyancing Act. However, I accept the proposition that the making of a decision to use (or endorse the use of) sheet piling is an act (not an omission) which is “in relation to” land (though not “on” the land). Thus, I do not accept Ms Brown’s argument to the effect that, once approval is given for the works, it is the carrying out of the approved works which may cause damage/removal of support – not the decision or approval itself. Here, the decision to use sheet piling was a decision in relation to the land which, when implemented, caused the removal of support to the Rayman Land. As to whether the decision to install sheet piling (as opposed to contiguous piering) amounted to a failure to exercise reasonable care, that has been considered under Issue 1 above and the same conclusions follow for Issue 2. As to Ms Brown’s contention that, under the Contract, the duty to complete the works rested on Scopeview and that it was contractually obliged to provide the requisite notices, I do not accept that this removes the duty on her part pursuant to s 177 (and as already noted I do not accept that Scopeview was contractually obliged, vis à vis Ms Brown, to give the notices). The failure to exercise reasonable care on Ms Brown’s part occurred at the time when the decision to use sheet piling was adopted

in the Contract and later endorsed by Mr Brown (and continued through to the commencement of installation of the sheet piles). Even if, in the disputed 2 March 2020 conversation Scopeview assumed responsibility for notification (and I am not persuaded that it did) that does not remove the duty on Ms Brown’s part in that regard – it just means there might be a claim by her against Scopeview if it failed to do so (though this presumably has been resolved as part of the settlement between those defendants). In any event, the failure to give notification is not the “doing” of something on or in relation to land. It is an omission. Therefore, my conclusion on Issue 2 follows from the conclusion reached on Issue 1 (and does not take the matter any further). As I understood it, it was accepted in the course of submissions by Ms Rayman’s counsel that if there was breach of a common law / s 5B duty of care, then that would suffice for liability on the part of the respective defendant. Issue 3 – alleged concurrent wrongdoers As noted earlier, the alleged concurrent wrongdoers (who were identified by Scopeview and then joined as parties to the proceedings by Ms Rayman) are: Meso, VMS, IDC and EIA. Meso As against Meso, the alleged duty of care is pleaded by Ms Rayman at [C.155] and [C.156]. The reasonable precautions that it is alleged should have been taken are pleaded at [C.157] and

include that Meso should have advised Scopeview that sheet pile walls were not an appropriate means of shoring the site and would likely cause damage to structures on land adjacent to the site (see [C.157(a)-(b)]). At [C.158] it is alleged that Meso breached its duty of care to Ms Rayman in relation to the shoring/sheet piling work on the site in that Meso: designed a temporary shoring solution using driven sheet piles contrary to the Martens Report advice; specified vibration review levels substantially in excess of the maximum 3 mm/s recommended by the Martens Report; ignored the Operating Warning Level and Operation Halt Level alarms on 29 April 2020 causing the vibration level to reach 30.8 mm/s; exceeded the maximum vibration level recommended by Martens on several occasions between 28 and 30 April 2020; selected SCH5-750 steel sections which were relatively lightweight and did not have sufficient structural rigidity and capacity when acting in cantilever level made prior to installation of cross-bracings; did not monitor the sheet pile wall for deflections when acting in cantilever made prior to installation of the cross-bracings; delayed installation of the cross-bracings which took place over seven days during which there was no, or not adequate, support of the sheet pile wall along the common boundary with Ms Rayman’s property. VMS As to VMS, the alleged duty of care

is pleaded at [C.173]. The reasonable precautions that it is alleged should have been taken are pleaded at [C.174], namely: (a) applying vibration guidelines significantly lower than the 8 mm/s and 10 mm/s levels; (b) advising Meso and Scopeview that the Operation Halt Level should not exceed a vibration level of 3 mm/s PPV; (c)-(f) notifying Meso and Scopeview as to exceedance of the vibration levels; (g) reviewing the vibration levels after damage was reported to Ms Rayman’s property; and advising Meso and Scopeview that the vibration levels should be reduced to 3 mm/s PPV after damage was reported to Ms Rayman’s property on 28 April 2020. The breach of the duty of care by VMS is pleaded at [C.175]. It is alleged that VMS: (a) adopted a maximum vibration limit based on guidelines applicable to transient vibration that was inappropriate for continuous vibration caused by pile drilling; (b) applied vibration guideline levels which were significantly higher than those recommended by Building and Australian Standards; (c) applied recommended site control vibration levels which substantially exceeded the maximum level recommended by the Martens Report; (d) failed to review the Operating Warning and Operator Halt Levels after damage was reported to the Rayman Property on 28 April 2020; and (e) failed to advise Meso and Scopeview that the Operator Warning and Halt Levels should be

reduced to 3 mm/s PPV after damage was reported to the Rayman property on 28 April 2020. IDC As to IDC, the alleged duty of care is pleaded at [C.190]. The reasonable precautions are identified at [C.191]. The breach of care is pleaded at [C.192] as being that IDC: (a) did not advise Meso or Scopeview that sheet pile walls were not an appropriate means of shoring the site; (b) designed a temporary shoring solution using driven sheet piles contrary to the Martens Report advice; (c) specified vibration review levels which were substantially in excess of the maximum 3 mm/s recommended by the Martens Report; (d) adopted inappropriate assumptions as to the density and stiffness of the underlying soil layers in calculating the likely lateral movement of the shoring wall; (e) underestimated the potential wall deflections and bending movement on the sheet piles; and (f) selected SCH5-570 steel sections which were relatively lightweight and did not have sufficient structural rigidity and capacity when acting in cantilever mode to retain the excavation without deflection prior to installation of the cross-bracings. EIA As to EIA, the duty of care is alleged at [C.201]. The reasonable precautions are identified at [C.202]. The breach is alleged at [C.203] namely that EIA: (a) advised Meso that a braced sheet pile wall was a feasible shoring system for the site to retain the proposed

excavation; (b) failed to advise Meso that vibration caused by the driving of piles into deposits of cohesionless soils of low to medium density was known to cause densification of soil and differential ground settlement; (c) failed to advise Meso that use of sheet pile walls would likely cause damage to structures on land adjacent to the site; and (d) failed to advise Meso that the vibration review levels in the shop drawings exceeded the maximum level of 3 mm/s recommended in the Martens Report and that there should be adherence to a maximum vibration level of 3 mm/s. Scopeview’s submissions Scopeview submits that the concurrent wrongdoing of Meso and IDC, in particular, was substantial. (Indeed, Scopeview’s structural engineer attributed a 20% contribution to Meso and 40% to IDC.) As to Meso, Scopeview points to the following. First, Meso was engaged to review the documents supplied and to offer a shoring solution for the project, the proposal was for sheet piling and Meso did not suggest any alternative method. Second, Meso selected SCH5-570 sheet pile sections, a sheet pile section that is relatively light and did not have sufficient structural rigidity and capacity when acting in cantilever mode (that is, prior to cross-bracing being installed) to resist deflection during excavation of the site in June 2020. Scopeview notes that Mr Wong’s evidence is that the selection of

SCH5-570 was contrary to good industry practice. Third, Meso delayed in installing the cross-bracing, which in Mr Wong’s opinion likely caused deflection of the sheet pile wall. Scopeview notes that, instead of questioning the vibration limits, when questioned by Mr Doueihi on 29 April 2020, Mr Orr told Mr Doueihi “[e]verything is fine, we’ve got the vibration reports”. Scopeview notes that Mr Dockrill was of the view that this was “[a]bsolutely not good practice” from a shoring contractor and Mr Manning considered that the reports should have been presented to Scopeview. Scopeview also points to the fact that Meso over-excavated the site prior to installing the internal bracing. Scopeview notes that Mr Manning attributed responsibility for this to Meso. As to VMS, Scopeview says, first, that VMS, despite receiving the Martens Report which recommended a maximum vibration limit of 3 mm/s, recommended a warning level of 8 mm/s and a halt level limit of 10 mm/s. VMS’ maximum limit was over three times the Martens’ recommended maximum limit. Scopeview points to Mr Appleyard’s evidence that VMS’ recommended limits also exceeded vibration levels for continuous vibration in international standards and accepted literature. Second, Scopeview notes that the structural engineering experts would have expected that, following notification of damage, the vibration management consultant

should review the vibration limits with the geotechnical engineer. Mr Dockrill’s evidence is that he would “be contacting them to come to site straight away”. Mr Wong’s opinion is that, after being notified of the damage (on 28 April 2020), VMS should have reviewed the trigger and halt levels of the vibration monitoring. Third, Scopeview relies on the fact that, following notification by Ms Rayman of alleged damage to the property, VMS stated in its email on 29 April 2020 to Scopeview that all vibrations recorded during the monitoring period complied with relevant structural damage vibration criteria which was not the case. It is noted that Mr Manning and Mr Dockrill considered the tone of the email to be “fairly dismissive”; and Mr Appleyard agreed. As to IDC, Scopeview points to Mr Appleyard’s evidence that vibration caused by the driving of piles into deposits of cohesionless soils of low to medium density is known to cause densification of soil and differential ground settlement. Scopeview says that, despite this, IDC prepared a Design and Analysis for Temporary Shoring Design dated 17 February 2020 (Design and Analysis), proposing the use of driven sheet piles to achieve the outcome of limiting the risk of ground movement and damage to adjacent properties. Second, Scopeview notes that, despite the known risk, IDC’s Design and Analysis stated the design and construction of

the shoring and the excavation would not have an adverse impact on the adjacent properties. Scopeview argues that, as the structural engineer responsible for certifying the design, IDC must have known that this statement would be relied on by Meso and by it (the builder). Third, Scopeview says that, for the reasons addressed by Mr Wong, the computation of the deflection and bending moment of the shoring wall by IDC was inappropriate. Scopeview also notes that IDC proposed vibration limits of an 8 mm/s warning level and an 10 mm/s halt level (a maximum level of over three times Martens’ recommended limit), despite having been provided with the Martens Report. Scopeview notes that the structural engineering experts were unanimously of the view that good practice dictates that a structural engineer should follow the advice of the geotechnical engineer when stipulating a vibration limit and that their view was that, for a structural engineer to depart from the geotechnical engineer’s advice without good reason was a matter sufficiently serious to require the structural engineer to notify its liability insurer. As to EIA, Scopeview notes that EIA was provided with IDC’s Temporary Shoring Plan and the Martens Report and that the express purpose of its report was to “provide our opinion on the suitability of the use of sheet piles for the proposed development to satisfy Condition 13

of the DA Conditions”, that is, a report “regarding the stability of the subject site and stating that damage should not occur to any adjoining premises as a result of the proposed bulk excavation, driven type piles and shoring works”. EIA made no comment on IDC’s proposed vibration limits or the Martens recommended vibration limit. Scopeview notes that Mr Appleyard’s opinion is that EIA’s advice was inconsistent with the advice given by Martens and “generally accepted civil and structural engineering literature with regard to the use of driven sheet piles in loose sand”. Scopeview notes that Mr Dockrill’s expectation is that a competent geotechnical engineer would have reviewed the proposed vibration limits. The effect of Mr Manning’s and Mr Appleyard’s evidence was that they would not always expect the geotechnical engineer to do so; however, they would expect the geotechnical engineer to do so where the development consent was conditional on the geotechnical engineer’s review, as it was in this case. Ms Rayman’s submissions As to Scopeview’s invocation of proportionate liability, Ms Rayman invokes authorities to indicate that apportionable claims may arise from an action for negligence based upon s 177 of the Conveyancing Act. In her opening submissions, Ms Rayman argued (seemingly inconsistently with her pleading) that no negligence could be established against either IDC

and/or EIA as the design each issued was not constructed by Scopeview and/or Meso (this seems to be a reference to the divergences noted already as to the placement of the sheet pile wall closest to the common boundary between the Brown Land and the Rayman Land). As to Meso, Ms Rayman said that, while Meso was involved in the construction of the shoring system, Scopeview took on most of the risk vis-à-vis its contract with Meso and was obliged to play a more active role in the construction of the shoring system. Ms Rayman argued that, given the contractual obligations imposed on Scopeview and its own conduct, Scopeview cannot demonstrate that Meso’s conduct and/or VMS’ conduct caused the same loss independently of Scopeview’s own conduct. Ms Rayman relies on the following matters. First, that Scopeview’s own expert, Mr Wong, considered that EIA had no responsibility for the cause of the damage to the Rayman Land. Second, that Mr Wong considered that VMS acted reasonably when conducting the vibration monitoring work and reporting it to Scopeview. Third, that while Meso, VMS and IDC were all provided with the Martens Report, Scopeview was the only entity that was legally obliged to comply with its terms. Ms Rayman says that Scopeview must bear most of the responsibility for not adhering to the vibration limits prescribed therein, particularly after it formed part of the

construction certificate. Fourth, that while Meso was the contractor which designed and installed the sheet piling, Scopeview was still obliged to supervise those works adequately to ensure that it discharged its duties under the statutory warranties and the contract with Ms Brown. Determination The relevant principles relating to apportionment under s 35 Civil Liability Act require that Scopeview establish that each concurrent wrongdoer committed some legal wrong against Ms Rayman (here, that is alleged to be the tort of negligence). In my opinion, each of Meso, IDC, VMS and EIA owed a duty of care to Ms Rayman in performing the tasks each was contracted to do (given the foreseeable risk of harm to the Rayman Land arising out of the excavation works) and each breached that duty. I reach that conclusion broadly for the reasons put forward by Scopeview (see above). Meso does not appear to have addressed anywhere in its Works Summary Document the clear warning against sheet piling in the Martens Report. Rather, the evidence would suggest that Meso simply adopted sheet piling in accordance with its usual practice. I also consider Meso to have failed to exercise reasonable care in nominating vibration level limits well in excess of those recommended by the Martens Report. Meso also did not take action when the maximum vibration levels vastly exceeded even its own vibration levels

on 29 April 2020. Mr Wong’s evidence supports my conclusion that the choice of sheet piles was also negligent in that the thinness of the sheet piles made deflection more likely and I conclude that there was not sufficient monitoring of the sheet piles when in cantilever mode from deflections prior to installation of cross-bracing. What I do not accept is that there was negligence in the delay in installation of cross-bracing per se, given that mechanical failure appears to have been the cause of this delay. As to IDC, for similar reasons to that of Meso (and as submitted by Scopeview) it breached its duty to exercise reasonable care. As to VMS, again for the reasons submitted by Scopeview, it breached its duty of care. There was no apparent consideration given by VMS to the Martens Report recommendation as to vibration levels. As a vibration specialist, VMS ought to have appreciated the real risk of adverse impacts from vibration levels and should have been assiduous to adopt lower vibration limit levels. As to EIA, it failed to give consideration to the Martens Report Warning as to adverse impact from vibration. It made no reference at all to the vibration limit levels recommended by Martens. Particularly, when its conclusion that sheet piling was a feasible solution was pressed on vibration being controlled, this was a clear failure to exercise reasonable care. It must be

remembered that, but for the EIA Report, there was no geotechnical certification for the sheet piling shoring system. Therefore, but for its certification, excavation works could not have commenced on 27 April 2020 for the installation of such a system. Thus, I find each of the alleged concurrent wrongdoers liable. Issue 4 – Causation It is not disputed that Ms Rayman bears the onus, pursuant to s 5E of the Civil Liability Act, of proving on the balance of probabilities that Ms Brown’s negligence was a necessary condition of the occurrence of the harm sustained and hence of proving any fact relevant to the issue of causation. Factual causation requires the application of the “but for” test of causation. Where there is more than one possible cause, a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm, will meet the test of factual causation within s 5D(1)(a) of the Civil Liability Act. Ms Rayman’s submissions Ms Rayman submits that, in this case, s 5D(1)(a) of the Civil Liability Act (which requires consideration of the particular harm that has been sustained) is satisfied because the choice to use sheet piling was a necessary condition of the damage as it occurred. Further, Ms Rayman says that the failure to provide her with at least seven days’ notice of the proposed

excavation was also causative of loss, namely, loss of an opportunity to obtain professional advice and to take action to prevent the excavation works occurring. Ms Brown’s submissions As to the decision to use sheet piling, as already discussed, Ms Brown contends that this was Mr Doueihi’s decision and that Scopeview bore all responsibility for operational construction matters. Scopeview contends that the damage was caused by vibration during the installation of the sheet piling and that the cracking and damage was not caused by any breach of duty by it. As noted earlier, Scopeview argues that the difficulty with Ms Rayman’s identification of the date of breach as being the date of entry into the Contract is that the works could not be carried out until compliance with the Development Consent conditions (including Conditions 13 and 14) and the issuance of a construction certificate; and by that date, the EIA Report certifying use of the sheet piling had been issued. Scopeview contends that the relevant date for assessment of breach is the date of commencement of the works (31/10/25; T 437). In that context, Scopeview submits that Mr Doueihi’s decision to go ahead with sheet piling was not finalised until he obtained the “go ahead” from the certifier (31/10/25; T 437). Therefore, Scopeview argues that, even if negligent in proposing use of sheet piling, nothing flows from that.

The difficulty with that submission is that it is not consistent with the evidence. Mr Doueihi, even prior to the Contract, had decided to use sheet piling. Mr Doueihi never suggested any possibility of an alternative method of shoring. Determination Part 4 of the Civil Liability Act modifies the common law principle of solidary liability, being that “one defendant who negligently caused a plaintiff loss is solely liable for the whole of that loss even if other defendants or persons also caused the same loss” (Pafburn at [15]). In Pafburn, the High Court explained the basic scheme of Part 4 as follows (at [28]): The basic scheme of Pt 4 of the CLA is clear. If a claim is an “apportionable claim” (s 34(1)) which is a “single apportionable claim” (s 34(1A)) in respect of which there is a “concurrent wrongdoer” (s 34(2)) then, subject to the terms of s 34(3A), the liability of each such concurrent wrongdoer is to be determined in accordance with the provisions of Pt 4 (s 34A(3)). The liability of each such concurrent wrongdoer is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of each such concurrent wrongdoer’s responsibility for the damage or loss and the court may give judgment against the concurrent wrongdoer for not more than that amount (s 35(1)). If judgment on the apportionable claim is

given against such a concurrent wrongdoer in respect of its liability as so determined, that concurrent wrongdoer cannot be required to contribute to any damages or contribution recovered from another such concurrent wrongdoer in respect of the apportionable claim (s 36). An apportionable claim for the purposes of Pt 4 of the Civil Liability Act includes “a claim for economic loss or damage to property in an action for damages (whether in contract, tort or otherwise) arising from a failure to take reasonable care, but not including any claim arising out of personal injury” (Civil Liability Act, s 34(1)(a)). Section 34(2) of the Civil Liability Act provides that a concurrent wrongdoer is “a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim”. Section 35 of the Civil Liability Act relevantly provides: 35 Proportionate liability for apportionable claims (1) In any proceedings involving an apportionable claim— (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss, and (b) the court may give judgment against the defendant

for not more than that amount. (2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim— (a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part, and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (3) In apportioning responsibility between defendants in the proceedings— (a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law, and (b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings. (4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings. (5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise. In Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 (Hunt & Hunt Lawyers), the High Court considered proportionate liability under Pt 4 of the Civil Liability Act and explained (at [16]-[17]): The evident purpose of Pt 4 is to give effect to a

legislative policy that, in respect of certain claims such as those for economic loss or property damage, a defendant should be liable only to the extent of his or her responsibility. The court has the task of apportioning that responsibility where the defendant can show that he or she is a “concurrent wrongdoer”, which is to say that there are others whose acts or omissions can be said to have caused the damage the plaintiff claims, whether jointly with the defendant’s acts or independently of them. If there are other wrongdoers they, together with the defendant, are all concurrent wrongdoers. The purpose of Pt 4 is achieved by the limitation on a defendant’s liability, effected by s 35(1)(b), which requires that the court award a plaintiff only the sum which represents the defendant’s proportionate liability as determined by the court. For that purpose, it is not necessary that orders are able to be made against the other wrongdoers in the proceedings. Section 34(4) provides that it does not matter, for the purposes of Pt 4, that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died. Thus under Pt 4 the risk of a failure to recover the whole of the claim is shifted to the plaintiff. [citation omitted] Where a defendant submits that there is a concurrent wrongdoer, the defendant must plead the necessary elements, being “the existence of a

particular person”, “the occurrence of an act or omission by that particular person”, and “a causal connection between that occurrence and the loss that is the subject of the claim” (Ucak v Avante Developments Pty Ltd [2007] NSWSC 367 at [35]). The defendant relying upon the proportionate liability regime bears the onus of establishing that there is a concurrent wrongdoer (Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2018] 1 Qd R 319; [2012] QCA 315 at [60]-[61] and the cases there cited). Determining whether a person is a “concurrent wrongdoer” involves two questions, namely (Hunt & Hunt Lawyers; see also Trajkowski v Simpson [2019] NSWCA 52 at [190]), (1) “[w]hat is the damage or loss that is the subject of the claim?”; and (2) “[i]s there a person, other than the defendant, whose acts or omissions also caused that damage or loss?”. In my opinion causation on the “but for” test is made out in relation to negligence in the decision to use sheet piling and to adhere to that decision even after the issue was raised by Mr Zimmerman as to the change in the proposed shoring system. But for the decision to use sheet piling, none of what followed (in terms of the inappropriate choice of sheet piles, incorrect calculation of the likely deflection of the sheet pile walls when in cantilever mode, and excessive vibrations) would have occurred. As already noted, it is

sufficient that this be a material cause of the harm that was suffered. As to the failure to notify (i.e., to comply with Conditions 13 and 14) I am satisfied that this deprived Ms Rayman of a reasonable opportunity to take advice and to take steps to avert the damage. I do not accept that it can be inferred that the Raymans would have done nothing had they been properly notified (i.e., by Ms Brown or Scopeview) with the requisite timeframe, that sheet piling was in fact going to be used. (The evidence of Mr Brown that he was concerned about sheet piling cannot be accepted. Nowhere is that evident from the contemporaneous communications. Rather, Mr Brown was adamant that he wanted to use sheet piling and dismissive of the recommendation against it.) The description by Ms Brown of inaction on the part of Ms Rayman from March or April 2020 when Mr Zimmerman advised Mr Weinberg that sheet piling was going to be used is not a complete account of what occurred. Mr Weinberg took steps to ascertain the position from the Council. It was not in my view unreasonable for him to do so, particularly in circumstances where there was no indication from Mr Brown or Scopeview of what was planned by way of shoring for the excavation works. I would infer that relations between the neighbours if cordial, were not conducive to meaningful discussion or the issue, particularly in light of Ms Brown’s

affidavit evidence. And, in any event, the suggestion that Mr Brown would have deviated from his decision to use sheet piling (expressed in forthright terms in his “Basically, I want to use the sheet piling” email and argumentative proposition that it was not challenged) is implausible. As I have said earlier, to all intents and purposes by March/April the die seems to have been cast – the sheet piles had been ordered, Mr Brown was adamant that they were to be used, and the search seems to have been for a geotechnical engineer willing to certify their use. (The choice not to take up the Martens’ lower quote for such advice and certification is telling in this regard.) Thus, I find that causation is established for the relevant breaches of the duty of care (though, as previously stated, the loss of opportunity breach is not necessary to pursue in light of the finding as to breach at an anterior point in the decision to use sheet piling). Issue 5 – Proportionate Liability Ms Rayman’s submissions As to the apportionment of liability, Ms Rayman points out that only Scopeview has pleaded apportionment and has identified Meso, VMS, IDC and EIA as concurrent wrongdoers. Ms Brown, in closing submissions made clear that this was a forensic decision – her counsel informing me that she did not invoke the proportionate liability regime because she contended that under the Contract control

was given to Scopeview and it was all its responsibility (31/10/25; T 421-422). Ms Rayman submits that the following percentages are appropriate: Scopeview: 65%; Meso: 20%; IDC: 10%; VMS: 5%; and EIA: 0%. Scopeview’s submissions In determining the relative responsibility of concurrent wrongdoers, it is necessary to compare the blameworthiness and causative potency of the conduct of each. Relevant factors include which of the wrongdoers was more actively engaged in the activity causing loss and which was more able effectively to prevent the loss. Scopeview points to the agreement of the structural engineers that the acts or omissions of each of Meso, VMS, IDC and EIA contributed to the damage and that they agreed that Scopeview’s responsibility for the damage is in the order of 5%. Scopeview notes that they differ only in the attribution of responsibility as between Meso and VMS and whether Ms Rayman also contributed to the damage. Subject to reconciling the precise apportionments in respect of IDC and VMS, Scopeview submits that the structural engineers’ apportionment should be accepted. If the structural engineers’ apportionment is to be departed from, Scopeview would contend for a higher apportionment against IDC than the 15% agreed by the structural engineers. Scopeview made clear that it has not pleaded, and does not advance, a case against Ms Rayman. As to Meso, Scopeview

repeats the submissions made earlier (see [1182]ff above). Scopeview argues that, if the exercise of reasonable care by it required it to question the vibration limits recommended by VMS, then Meso, as a specialist shoring contractor engaged to provide the overall shoring solution for the works, was under at least the same, if not a more intense, duty. As to IDC, Scopeview again repeats the matters at [1186] above. As to VMS, Scopeview points to the matters at [1184]ff above. As to EIA, Scopeview notes the matters at [1187] above. In summary, Scopeview submits the following apportionment would be appropriate: Scopeview: 5%; Meso: 20%; IDC: 40%; VMS: 20%; and EIA: 15%. Determination The “authoritative” statement of the law in Australia is that of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 (Reinhold v NSW Lotteries Corporation (No 2) (2008) 82 NSWLR 762 at [50]-[53]). In that case, the High Court considered apportionment for contributory negligence and explained (at 494): The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris (1956) 96 C.L.R. 10 at 16) and of the relative importance of the acts of the

parties in causing the damage: Stapley v. Gypsum Mines Ltd [1953] A.C. 663 at 682; Smith v. McIntyre [1958] Tas.S.R. 36 at 42-49 and Broadhurst v. Millman [1976] V.R. 208 at 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. In Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65, Hayne J further observed (at 68): No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the “relative importance of the acts of the parties in causing the damage” and it is “the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination” (italics added). No doubt also, as the Court said in Podrebersek v Australian Iron & Steel Pty Ltd “[t]he significance of the various elements involved

in such an examination will vary from case to case” and “the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance”. But no matter how culpable the claimant may be, if the damage results from the fault of the person who suffers the damage and the fault of another, it is not possible to say that the damages recoverable in respect of that damage are to be not simply reduced but are to be entirely eliminated. Such an outcome cannot be justified as “just and equitable having regard to the claimant’s share in the responsibility for the damage” for it is an outcome which holds the claimant wholly responsible, not partly so. [citations omitted] In Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463, Palmer J explained the discretionary judgment the court must make in determining the amount of liability considered to be “just” (at [94] and [97]): Part IV is designed to alleviate this perceived injustice. It is intended to visit on each concurrent wrongdoer only that amount of liability which the Court considers “just”, having regard to the comparative responsibilities of all wrongdoers for the plaintiff’s loss. How the Court is to assess what is “just” is not explained. The Court must exercise a large discretionary judgment founded upon the facts proved in each

particular case. The principles upon which the Court will exercise this discretionary judgment will come to be developed on a case-by-case basis. However, it seems clear enough that the policy of Part IV is that a wrongdoer who is, in a real and pragmatic sense, more to blame for the loss than another wrongdoer should bear more of the liability. This calls for the exercise of the same kind of judgment as the Court exercises in apportioning responsibility as between a defendant sued in tort for negligence and a plaintiff who, by his or her own negligence, has been partly responsible for the injury. … As I have observed, s 34 CLA makes it clear that both a contract breaker and tortfeasor may be concurrent wrongdoers liable for the same loss or damage in an apportionable claim. The duty to avoid loss imposed by contract is as weighty as the duty to avoid loss imposed by the common law. However, the Court is required to go beyond the legal character of the duties imposed upon concurrent wrongdoers and to examine the practicalities of responsibility. Accordingly, the Court should apportion liability according to considerations such as (but not limited to): – which of the wrongdoers was more actively engaged in the activity causing loss; – which of the wrongdoers was more able effectively to prevent the loss happening. In other words, the court must, having regard to each wrongdoer’s

whole conduct, consider “the degree of departure by each wrongdoer from the standard of care reasonably expected of that wrongdoer” and “the causal potency of each wrongdoer’s negligent acts or omissions” (see Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436 (No 2) [2021] VSCA 122 at [18] and the cases there cited). The court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings (Civil Liability Act, s 35(3)(b)). In the present case, I have assessed the blameworthiness of the concurrent wrongdoers, having regard to the principles referred to above and the respective roles of each in causing the loss, as follows: Meso: 35%; IDC: 20%; VMS: 20%; and EIA: 10%. Thus, I have assessed Scopeview’s proportionate liability for the loss, having regard to the responsibility of the concurrent wrongdoers for that loss, at 15%. This assessment of proportionate liability is on the basis that IDC bears significant responsibility for preparation of the temporary shoring plan which provided for sheet piling and excessive vibration levels but did so adopting Meso’s proposals in the Works Summary Document and that Meso also played a role in causing the damage by over-excavation of the site, the choice of the particular sheet piles which permitted more deflection and the incorrect calculation of anticipated deflection

movements. VMS, on the other hand, also bears significant responsibility for its adoption of the excessive vibration levels and failure properly to monitor (and then review or raise questions as to the need to review) vibration levels once damage to the Rayman Home was reported. The response that it had the vibration monitoring experts was not just dismissive, as the experts said; it was extraordinary once the highest exceedance occurred on 29 April 2020 (even if it believed this may have been caused by an excavator banging the vibration monitor, as was suggested in submissions might have been a possibility – see 31/10/25; T 447). EIA bears a lesser responsibility as it was involved late in the process and its opinion was qualified by the proviso that vibration be suitably controlled. However, it did nothing to address the vibration levels specified (notwithstanding the significant divergence from the Martens Report recommendation) and, as its certification was necessary for commencement of the works it was in a position (had it reviewed the vibration levels and advised for a reversion for the Martens’ vibration level recommendations – as the experts considered would have been appropriate) potentially to have averted the damage occurring at all (assuming its then recommendation would have been adopted). Scopeview’s share of responsibility derives from its decision to use sheet

piling in the face of expert advice to the contrary and adherence to that decision throughout the project (including when seeking an alternative geotechnical report to certify its use) without adequately questioning the divergence between expert opinions or seeking an explanation from EIA as to why it did not accept the Martens Report recommendations. I accept that Scopeview was not itself an expert in the fields of structural or geotechnical engineering, nor an expert vibration consultant but it was clearly on notice of the risk of using sheet piles and its decision (and then perseverance with that decision in the face of the query or concern raised by Mr Zimmerman) was not based on any considered expert advice at least until receipt of the EIA Report (on 20 April 2020). Even then, what was sought was, in effect, advice to justify the decision that had already been made; and that advice failed to consider the discrepancy in the recommended vibration levels. The circumstances in which the EIA Report was obtained (as a matter of urgency to permit the imminent commencement of works in respect of which a decision had already been made and sheet piles had already been purchased) makes it likely in my opinion that, in its role as builder and notwithstanding it was not an expert, Scopeview did not give adequate consideration to the risk that the Martens Report had identified. (One

might well conclude that the EIA Report was treated as a rubber-stamp for the use of sheet piling, although I make no such finding as this was not put to Mr Doueihi). It is not necessary to attribute any proportionate liability to Ms Brown, as she is not identified as a concurrent wrongdoer by Scopeview and she (deliberately) did not invoke the proportionate liability regime. In Kalantzis v Brown, Adamson JA, with whom Mitchelmore JA and I agreed, noted the importance of a defendant pleading a proportionate liability defence and said that that principle was no less important than when the alleged concurrent wrongdoer was already a defendant (at [109]). Here, as already noted, it was Ms Brown’s forensic decision not to do so (because of her view that Scopeview bore the responsibility for any negligence as it was in control and exclusive possession of the site). Issue 6 – Damages Finally, turning to the issue of damages, there were in essence two main issues: the claim for diminution in value and the claim for consequential loss. Ms Rayman’s submissions Initially, Ms Rayman claimed rectification costs and/or in the alternative costs of complete demolition and rebuilding of the Rayman Home (see [C.206]). After the completion of the sale of the Rayman property in February 2025, Ms Rayman amended her claim in April 2025 to include a claim damages for diminution of value of the

Rayman Home by reason of it being in a physically and structurally damaged state (at [C.206](b)) and a claim for consequential damages associated with the sale of the Rayman Home (at [C.111B]). Although the claim for damages for economic loss (caused by one or more of a loss of opportunity to re-finance the Rayman Land; an inability to take advantage of opportunity to sell the Rayman Land since 28 April 2020; and loss associated with the reduction in overall value of the Rayman Land and Home) remained in the pleading (at [C.206]), ultimately the claim for economic loss (as opposed to the claim for diminution in value of the property) was not pressed. Ms Rayman seeks entry of judgment in her favour: as against Ms Brown, in the sum of $1,356,420.90 without an apportionment of any kind; and as against Scopeview in the sum of $881,673.12 (allowing for an apportionment of no more than 35% vis à vis the named concurrent wrongdoers). Ms Rayman also claims interest on the judgment sum from 27 February 2025 (the date of sale of the Rayman Home) to date. The largest head of damage claimed is obviously that of diminution in value ($1,150,000.00). This amount is based on the opinion of Mr Field (set out earlier in my consideration of the expert valuation evidence) that the value of the Rayman Home, assuming that the property had not been damaged by the adjacent property and was in good

condition, as at October 2024, was $8.6 million (cf Ms Kerswell’s opinion that the value of the Rayman Home at that date, assuming that it had only suffered normal wear and tear and that it remained in the same physical and structural state that it was in on 27 April 2020 was $8,075,000.00). Ms Rayman points out that, even on Scopeview’s expert evidence, the diminution in value claim is at least $525,000.00. As to the question of pre-existing damage, Ms Rayman submits that Ms Brown bears the onus to establish any pre-existing damage (and to disentangle the causes of damage to the Rayman Home) and to establish to what extent (if any) damages should be reduced by reason of the pre-existing defective state of the property. Ms Rayman argues that Ms Brown has failed to discharge that onus. Ms Rayman says that the best objective evidence available as to the state of her home before the April 2020 damage is the 2019 Dilapidation Report (which was prepared prior to the commencement of litigation). Ms Rayman submits that it should be found that the home was internally in “a very good condition” as described therein. It is submitted that this is consistent with the evidence of Ms Rayman, Mr Rayman and Mr Weinberg, all of whom she argues presented as honest and reliable witnesses. Pausing here, the difficulty with this submission is that the 2019 Dilapidation Report did not address the

state of the basement and nor did the evidence given by the Raymans as to the pre-existing state of the house. I have no difficulty accepting that the 2019 Dilapidation Report is the best objective evidence as to the internal condition of the home prior to the damage occurring but I cannot accept that this extends to the basement area. Further, the waterproofing issue (which was acknowledged in oral evidence) and the need for some level of general maintenance in relation to the paintwork (which does not seem to be disputed) are not referable to the damage that occurred by reason of the excavation but may have impacted to some extent on the market value of the house in the absence of any damage caused by the excavation works. Ms Rayman submits that the evidence of Mr Manning (Ms Brown’s expert) that approximately one-third to one half of the damage to the home was caused by the construction works next door should be given minimal weight, noting that Mr Manning concedes that, in order to identify with specificity the extent of any pre-existing damage, further expert evidence is required; and none has been adduced. Accordingly, Ms Rayman submits that, even taking Ms Brown’s evidence at its highest, she has failed to discharge her onus to establish the extent of the pre-existing damage. Mr Manning’s assessment appears to be a broad brush view (based on his characterisation of the

various categories of damage to which I have earlier referred) as to the estimate of pre-existing damage compared to damage caused by the excavation works. More relevantly, the valuation experts in their joint report gave their opinions as to value on the two alternative assumptions (i.e., that the house had not suffered the April 2020 damage and that it had). Ms Kerswell expressly noted her assumption, on the first scenario, that the home remained in the same physical and structural condition it was in on 27 April 2020. Neither attached any significance to the waterproofing issue or general need for maintenance in assessing what a willing but not anxious purchaser would have paid for the property had it been in the same state as it was on 27 April 2020 when it sold in October 2024. While they did also did not attach any significance to the state of the basement in that regard, only Mr Field appears to have inspected the inside of the house. Nevertheless, the difference in their opinions as to the diminution in value did not turn on such matters. Rather, it turned on their different opinion as to how the (agreed) comparable sale property compared with the subject property; and Mr Field’s attribution of a premium compared to Ms Kerswell’s use of the CoreLogic statistics. Assessment of the comparable property necessarily involved a subjective assessment albeit one that was no

doubt informed by their valuation experience. As to the claims for consequential loss, these comprise: the costs of “staging” of the property for sale ($10,615.00); the cost of cosmetic work to the property prior to sale ($42,486.20); costs of the sales marketing campaign ($11,670.00); the agent’s commission on sale ($122,925.00); the conveyancing costs ($8,056.95); moving costs while staging furniture used in sale campaign ($1,917.75); and the removal of the liquor licence from the property ($8,750.00). In respect of each of these costs, Ms Rayman argues that the costs would not have been incurred “but for” the sale of the Rayman Land. In relation to the staging costs, Ms Rayman invokes the principles in Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; (1998) 72 ALJR 937 (Unity Insurance Brokers) at [134] and Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 (Karacominakis v Big Country Developments) at [187], submitting that the costs are recoverable in full as special damages. Pausing here, I note that in Unity Insurance Brokers Hayne J observed (at [134]): … There is no injustice in leaving the wrongdoer to bear the consequences of the decisions made in response to that wrongdoing by the party harmed - so long as those decisions are reasonable. Reasonableness informs much of the law of contract and, in particular, the assessment of

damages for breach. This means, for example, that if the party wronged has acted reasonably, the wrongdoer may be liable for all the loss that the plaintiff has suffered, even if the plaintiff's conduct has increased the loss. Conversely, the party wronged is not bound to take all possible steps to mitigate its loss, only those steps which are reasonable. [citations omitted] I also note that in Karacominakis v Big Country Developments Giles JA (with whom Handley and Stein JJA agreed) explained (at [187]): A plaintiff who acts unreasonably in failing to minimise his loss from the defendant’s breach of contract will have his damages reduced to the extent to which, had he acted reasonably, his loss would have been less. This is often misleadingly referred to as a duty to mitigate, although the plaintiff is not under a positive duty. The plaintiff does not have to show that he has fulfilled his so-called duty, and the onus is on the defendant to show that he has not and the extent to which he has not (TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130). Since the defendant is a wrongdoer, in determining whether the plaintiff has acted unreasonably a high standard of conduct will not be required, and the plaintiff will not be held to have acted unreasonably simply because the defendant can suggest other and more beneficial conduct if it was reasonable for the

plaintiff to do what he did (Banco de Portugal v Waterlow and Sons Ltd (1932) AC 452; Pilkington v Wood (1953) Ch 770; Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5). Mr Rayman’s evidence is that his family was forced to sell the Rayman Home as a result of the financial constraints placed on them by this litigation (see his affidavit affirmed on 5 December 2024 at [9]) and the failure of the defendants to take due care in carrying out the construction, excavation and ancillary works at the Brown Land. In that regard, I note that Ms Brown points to the fact that Ms Rayman had initially pleaded that she had been denied the opportunity to sell the Rayman Home since 29 April 2020 (a claim since abandoned) as suggesting that selling the Rayman Home was an elective always considered by Ms Rayman (in the context of her contention that the sale of the home was a voluntary commercial decision that breaks the chain of causation – see below). As to the particular consequential costs, they may be briefly described as follows. The claim for staging costs ($10,615.00) relates to costs said to have been necessary to prepare the Rayman Land for sale (the hiring of furniture for the purposes of open inspections and obtaining of marketing photographs). The claim for cosmetic works ($42,486.20) relates to a variety of matters such as painting and “patching” the

property (which I discuss in more detail below). The claim for marketing costs ($11,670.00) relates to a sales marketing campaign engaged in to assist in the sale. The claim for sales commission ($122,925.00) relates to the retainer of a real estate agent (Sotheby’s International Real Estate) to advertise and sell the Rayman Home. In relation to this claim, Ms Rayman accepts that it is possible that she could herself have arranged for the open inspections, marketing and advertising costs, but she argues that the retainer was in order to maximise the sale price. The claim for conveyancing costs ($8,056.95) in relation to the sale is self-explanatory. The claim for moving costs ($1,917.75) is explained as necessary to enable the Rayman Home to be effectively marketed. Finally, the claim for removal of the liquor licence attached to the property ($8,756.00) relates to the liquor wholesale business conducted by Mr Rayman from the Rayman Land and the need to remove the licence (which attached to the land as the point of liquor sale) on the sale of the property. Ms Brown’s submissions Ms Brown disputes the nature and extent of the damage and what loss has been suffered. In that regard, it was initially submitted that Ms Rayman had in fact had a “windfall” from the sale (see 27/10/25; T 62), having acquired the Rayman Land in 2010 for about $3.2 million, having spent approximately $1

million on its renovation and then having sold it (after spending about $42,000.00 on cosmetic repair) for $7.45 million. In closing submissions, the “windfall” submission was explained as meaning that Ms Rayman obtained a “practical economic advantage” in selling the home (see 31/10/25; T 433). Ms Brown argues that the damages crystallised when the decision was taken to sell the Rayman Home (elsewhere in her submissions she makes clear that she identifies by this the point of entry into the contract for sale in October 2024) and she points out that it was agreed by both parties that the market value of the home at that time was $7.45 million. Ms Brown (again) emphasises that there is no evidence as to the diminution in value of the house as between immediately prior to the incident causing the damage to the home and immediately after the incident (i.e., before and after 28 April 2020) (the valuers having valued the house as at February 2023 and then as at October 2024) (27/10/25; T 62). Ms Brown argues that, in the circumstances, the only damage, that was suffered by Ms Rayman was the cost incurred for the preparation of the home for the sale (which she submits was necessary in any event). Further, Ms Brown says that the harm suffered by the Rayman Home should take into account the substandard condition of the home as outlined by Mr Manning and Mr Dockrill and the contribution

of that to the harm suffered by Ms Rayman (i.e., as I understand it, that the defective footings exacerbated or contributed to the damage caused by the excessive vibrations). Ms Brown again submits that Mr Field’s valuations suggest a significant distortion (see [897] above) and submits that there is no admissible evidence that the market was in any way deterred after the cosmetic repairs that were effected at the cost of $42,486.20. Ms Brown argues that, upon sale of the property, Ms Rayman sustained no compensable loss, the sale price having equalled or exceeded the property’s “true” pre-undamaged market value. Further, Ms Brown emphasises that the decision to sell the Rayman Home was a voluntary commercial decision, arguing that there is no allegation in the pleadings that the sale was forced (though as I have already noted there was evidence from Mr Rayman as to why he says that the family was forced to sell the home, which included an assertion as to a cause being the alleged negligence on the part of the defendants). Ms Brown argues that the voluntary decision to sell is an economic decision that breaks the chain of causation. On that basis, Ms Brown says that any costs of sale (including agent’s commission and marketing, staging, conveyancing, or moving costs) are consequential and too remote, not being losses flowing from the alleged damage. Ms Brown submits that, in

any event, any such costs were offset by the profit realised on sale and that Ms Rayman has suffered no net loss within the meaning of Haines v Bendall (1991) 172 CLR 60; (1991) 65 ALJR 349 at 63 (where the plurality emphasised that compensation is the cardinal concept and a plaintiff cannot recover more than he or she has lost). Ms Brown also made reference to Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; (1992) 66 ALJR in this context. As to the costs claimed as consequential losses, Ms Brown does not dispute that costs incurred in preparing the home for sale (such as plastering and carpentry) are damages that ought to be borne by a responsible party (not her), but says that would exclude routine maintenance costs (such as painting of internal rooms) that are not a result of the damaging events (but are consequent on the decision to sell). Of the cost items set out in Ms Rayman’s Schedule of Damages, Ms Brown says that only Item 3 (the cosmetic works prior to the sale), excluding any routine maintenance costs, is recoverable, Ms Brown submitting that all other costs are consequent upon the decision to sell. Scopeview’s submissions Scopeview submits that Ms Rayman’s loss is simply the diminution in value (since the result of the damage caused by the shoring work was that Ms Rayman was left with a property the market value of which was diminished to $7.45

million) plus the cost of cosmetic work performed ($42,486.20), without more. Scopeview sees the significance of the sale of the Rayman Land in October 2024 as being that it evidences the market value of the property in its damaged state. Scopeview argues that the decision to sell the property does not bear on the question of Ms Rayman’s loss and that, in being awarded damages representing the diminution in value caused by the construction works, Ms Rayman will be made whole. On quantum, as noted earlier, Scopeview submits that Ms Kerswell’s valuations should be accepted and thus the diminution in value as a result of the damage caused by the works was $625,000.00. Scopeview accepts the amount claimed in respect of the cost of carrying out rectification of cosmetic defects ($42,486.20) (without any qualification as to routine maintenance work, as Ms Brown has drawn). Scopeview submits that the other costs claimed in respect of sale of the property and removal of the liquor licence are not losses resulting from the damage. As to the sale/marketing/conveyancing costs, Scopeview distinguishes those cases which involve purchase of property at an overvalue as a result of negligent advice where consequential losses such as council rates, water rates, stamp duty and insurance are taken into account. Scopeview says that the reason that costs of that kind are taken into account is

because in those cases the plaintiff would not have incurred those costs had the correct advice been given and the purchase not been made; arguing that that is not the position in the present case. Scopeview notes that the fundamental objective of an award for damages in tort is to provide “that sum of money which will put the party who has been injured … in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation” (referring to Gagner Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413 at [30]). Scopeview also points out that the claim for consequential losses associated with Ms Rayman’s decision to sell the property in October 2024 does not appear as a pleaded head of loss, rather those were included in Ms Rayman’s Schedule of Damages served shortly before the hearing. Determination As noted above, Ms Rayman contends that the expenses under Items 2-8 of her Schedule of Damages (i.e., all items other than diminution in value) were incurred as a result of the decision to sell (instead of rectify) the Rayman Home and would not have been incurred “but for” the actions of the defendants. I have addressed the quantum of the diminution in value claim in the course of my findings as to the expert valuation evidence. The remaining issue as to damages is as to the claimed consequential losses. When

considering the appropriate measure of damages for injury to land, the question or “overriding requirement” has been posed as being whether the measure of damages is “fair and reasonable” (see Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 (Winky Pop) at [182]; Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353 at [207]). In Winky Pop, Digby J explained the usual approach for injury done to land at [182], noting the distinction between diminution in value and reinstatement costs but accepting that damages may also be awarded for consequential losses, including lost profits or lost commercial opportunities, and saying that the measure of damages must be approached in a realistic way (see also at [136]). In Lewis v Australian Capital Territory (2020) 271 CLR 192; [2020] HCA 26, Edelman J observed that the vast majority of cases in the law of torts focus on the restoration of consequential loss and explained the enquiry concerning causation of consequential loss as follows (at [150]-[151]): … There are a number of reasons that the vast majority of the cases focus upon restoration of consequential loss. First, as explained above, there are many cases in which neither a specific nor a monetary court order can rectify the wrongful act. Secondly, there are many cases where the plaintiff’s only interest is to rectify the adverse consequences, or

damage, caused by the wrong. These cases will necessarily include all those where the wrong is only actionable upon proof of loss. Thirdly, even when an order of the court aims to rectify a wrongful act the compensatory principle can also require damages as recompense for consequential damage, or loss, caused by the wrong if the award would not otherwise fully compensate for the loss. A central issue on this appeal concerns causation of that consequential loss. A central issue on this appeal concerns causation of that consequential loss. Causation is a concept that establishes a link between a physical event and a physical outcome. Where a claim is brought for compensation for loss, the causal question asks whether the defendant’s wrongful act was necessary for the loss: “did the defendant’s act make a difference” to that outcome? That question is posed as a counterfactual: would the loss have lawfully occurred without the defendant’s wrongful act? In other words, would the plaintiff have suffered the same loss but without a violation of their rights? If the loss would not otherwise have occurred then, subject to other legal issues including remoteness of damage, it is easy to see why the defendant should be responsible for the loss. Conversely, if the defendant’s act made no difference to the outcome, because “but for” the act of the defendant the loss would have occurred

lawfully, then the defendant’s act was not a cause of the loss and the defendant’s responsibility for that loss becomes more difficult to justify. In the present case, I do not accept that costs associated with the subsequent sale of the Rayman Home (such as staging costs, agent’s commission, marketing, conveyancing and moving costs, and costs of removal of the liquor licence) are costs which would not have been incurred but for the negligence of Ms Brown and Scopeview (and the concurrent wrongdoers) in relation to the decision to use sheet piling (and, in the case of Scopeview and the concurrent wrongdoers, the carrying out of the sheet piling works, to the extent that that has been established). The fact that the Rayman Home was damaged (and required repair) did not force the sale. Had that been the case, the sale would surely have occurred shortly after the damage occurred. It does not appear to have been necessary, for example, for the family to vacate the home due to imminent collapse or otherwise in the aftermath of the excavation works. This is reinforced by the fact that the initial decision of Ms Rayman appears to have been to seek reinstatement of the home. The assertion by Mr Rayman that the family was “forced” to sell the Rayman Home as a result of the financial constraints of the litigation does not alter that conclusion. While I readily accept that incurring

litigation costs may well have placed financial constraints on the Raymans, ultimately the decision to fund those costs (in pursuing Ms Rayman’s claim for damages) seems to have been a commercial one. I do not see it as a direct or necessary consequence of the damage sustained to the house by the excavation works. The distinction drawn between this case and the cases where consequential loss of the claimed kind has been allowed seems to me to be apt. I do, however, consider that the cost of cosmetic repairs to the Rayman Home, to repair damage occasioned by the excavation works, prior to the sale of the property are recoverable. They were costs necessitated by the damage sustained to the property by the excessive vibrations (and other aspects of the excavation/shoring works). Quantification of the amount of cosmetic repairs that are thus recoverable (i.e., excluding items that appear from the relevant invoices to relate to general or routine maintenance – such as painting not required due to the vibration damage – or to rectify issues of waterproofing and cracking around the pool area, which were not linked to the vibration damage) is a difficult task, as the relevant invoices attribute a single amount to various items of work (some of which appear to be referable to the vibration damage and others which do not). I note that Scopeview does not quibble with the total amount

claimed for cosmetic repair work but Ms Brown does – hence the necessity to make an assessment of the relevant items of work. I also note that both in effect conceded at least part of the cosmetic repair costs claim. Doing the best I can, on the basis of the description of work in the invoices, I have concluded that the following amounts are recoverable. First, $11,215.00 (as per the invoice dated 30 July 2024 from Techbuild), which relates to work involving the repair of cracking, the front door opening and front door jamb, painting walls, skirtings and architraves (which I infer related to the aforesaid items) and refitting of flashings to the roof (which again I infer from the other works the subject of the invoice related to the aforesaid repairs). I am less confident as to the component for sealing the top of the tiles around the balcony perimeter but, as I cannot separately quantify the amount referable to this (and as I am disallowing other items that might have include components referable to damage caused by the vibrations – such as replacement of shaving mirrors), I consider this to be reasonable. Second, $2,494.70 (invoice dated 19 September 2024 from Techbuild) which relates to works required to movement in foundations. Third, $1,072.50 (invoice dated 31 May 2024 from Techbuild), which relates to expansion of joints, which I infer is likely due to vibration from the

excavation works. I do not allow the sums claimed in respect of the invoices dated 24 August 2024 from Techbuild ($12,604.00) and 22 August 2024 from Daniel Decorations Pty Ltd ($15,100.00), as these appear on their face to relate to issues not caused (or unlikely to have been caused) by the vibrations (such as waterproofing to the upstairs balcony, pool area cracking and the like) or seem more likely to involve routine maintenance (general items for patching and painting, rendering brickwork in the wine cellar and rendering external work). As adverted to above, I accept that some of the work itemised in those invoices may have related to patching or painting, or fixing cracks, required in order to rectify damage caused by the vibrations but I am not sufficiently confident of this (nor of the quantum of those items) to allow those amounts (and I note that Ms Rayman bears the onus of establishing her claim for these consequential losses). Thus, I have concluded that the sum of $14,782.20 is recoverable as consequential loss (out of the approximately $42,000.00 claimed). Conclusion For the above reasons, I have concluded that Ms Rayman has established her claims in negligence against each of Ms Brown and Scopeview. I have concluded that the recoverable damages total $1,164,782.20 (comprised of $1.15 million for diminution in value and $14,782.20 for consequential loss, being a

portion of the cosmetic repair costs claimed). Judgment in favour of Ms Rayman against Ms Brown for that amount plus interest will be entered. As Scopeview has successfully invoked the proportionate liability principles, having regard to my assessment of the proportionate contribution of Scopeview vis à vis the four concurrent wrongdoers, judgment against Scopeview will be entered in favour of Ms Rayman in the sum of $174,717.33 plus interest (being 15% of $1,164,782.20). I see no reason why costs would not follow the event in both cases. Those costs would in any event have included the costs of the 21 October 2025 motion brought by Ms Brown seeking to amend her cross-claim in relation to the alleged agreement for payment of costs relating to the retaining wall (the encroachment issue) since that was determined against Ms Brown. However, Ms Brown has sought an opportunity to make submissions as to costs after judgment on the merits and there remains the issue as to who should bear Scopeview’s costs of the reopening application and reopened hearing. My preliminary view as to this is that Ms Brown should bear those costs. Nevertheless, I will make directions for brief written submissions on the issue of costs with a view to determining costs on the papers. Orders For the above reasons, I make the following orders: Judgment in favour of the plaintiff against the first defendant in

the sum of $1,164,782.20 plus interest. Judgment in favour of the plaintiff against the second defendant in the sum of $174,717.33 plus interest. Costs (other than those costs already ordered in relation to the reopening application and reopened hearing) to be determined on the papers. Direct that if any party seeks to make submissions on costs, that party (or those parties) file brief written submissions (no more than two pages) on costs within seven days and any brief written submissions (no more than one page) in response to the other party’s (or parties’) submissions within seven days thereafter. ** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2026

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (2026) 100 ALJR 170; [2026] HCA 2

Case cited

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Case cited

Bunning v Cross (1978) 141 CLR 54

Case cited

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; (1994) 68 ALJR 331

Case cited

Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 (2014) 254 CLR 185; (2014) 88 ALJR 911

Case cited

Pafburn Pty Ltd v Owners – Strata Plan No 84674 (2024) 99 ALJR 148; [2024] HCA 49

Case cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Case cited

Goldsmith v Sandilands (2002) 76 ALJR 1024; [2002] HCA 31

Case cited

Smith v New South Wales Bar Association (1992) 176 CLR 256

Case cited

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; (1993) 67 ALJR 270

Case cited

Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

Case cited

De L v Director-General, Department of Community Services (NSW) (No 2) (1997) 190 CLR 207

Case cited

State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3

Case cited

Bailey v Palonso [2020] NSWSC 1209

Case cited

Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1

Case cited

Mokbel v The King [2025] VSCA 243

Case cited

Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426

Case cited

Mann v R [2023] NSWCCA 256

Case cited

R v Riley [2020] NSWCCA 283

Case cited

R v Grech; R v Kadir [2017] NSWCCA 288

Case cited

Fleming v R [2009] NSWCCA 233

Case cited

Parker v Comptroller-General of Customs (2009) ALJR 494; [2009] HCA 7

Case cited

Australian Competition and Consumer Commission v Apple Pty Ltd (No 3) [2018] FCA 617

Case cited

Taylor v Burgess [2002] NSWSC 676

Case cited

R v Em [2003] NSWCCA 374

Case cited

Australian Securities and Investments Commission v Macdonald (No 5) [2008] NSWSC 1169

Case cited

De Costi Seafoods (Franchises) Pty Ltd v Wachtenheim (No 2) [2012] NSWDC 286

Case cited

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Case cited

Director of Public Prosecutions v Marijancevic (2011) 33 VR 440

Case cited

Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 4) [2024] FedCFamC2G 554

Case cited

Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3

Case cited

Council of the Law Society of New South Wales v Sideris (2025) 117 NSWLR 596; [2025] NSWCA 159

Case cited

Legal Practitioners Conduct Board v Wharff [2012] SASCFC 116

Case cited

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2010] NSWCA 110

Case cited

Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674

Case cited

Seamez (Australia) Pty Ltd v McLaughlin [1999] NSWSC 9

Case cited

Cleland v The Queen (1982) 151 CLR 1

Case cited

R v Ireland (1970) 126 CLR 321

Case cited

Ridgeway v The Queen (1995) 184 CLR 19

Case cited

Spencer v Commonwealth of Australia (1907) 5 CLR 418; [1907] HCA 82

Case cited

Pantalone v Alaouie (1989) 18 NSWLR 119

Case cited

Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26

Case cited

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

Case cited

Kondis v State Transport Authority (1984) 154 CLR 672

Case cited

Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313

Case cited

Palmanova Pty Ltd v Commonwealth (2025) 99 ALJR 1362; [2025] HCA 35

Case cited

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Case cited

Lym International Pty Ltd v Marcolongo (2011) 15 BPR 29,465

Case cited

Brookfield Multiplex Ltd v Owners – Strata Plan No 61288 (2014) 254 CLR 185

Case cited

Le Lievre v Gould [1893] 1 QB 491

Case cited

Footscray Football Club Ltd v Kneale (2024) 77 VR 168; [2024] VSCA 314

Case cited

The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 2) [2019] NSWSC 440

Case cited

Llavero v Brett Anthony Shearer [2014] NSWSC 1336

Case cited

Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118

Case cited

Brown v Etna Developments Pty Ltd [2025] NSWSC 358

Case cited

Kalantzis v Brown [2026] NSWCA 17

Case cited

Ucak v Avante Developments Pty Ltd [2007] NSWSC 367

Case cited

Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd [2018] 1 Qd R 319; [2012] QCA 315

Case cited

Trajkowski v Simpson [2019] NSWCA 52

Case cited

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613

Case cited

Reinhold v NSW Lotteries Corporation (No 2) (2008) 82 NSWLR 762

Case cited

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492

Case cited

Wynbergen v Hoyts Corporation Pty Ltd (1997) 72 ALJR 65

Case cited

Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463

Case cited

Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486

Case cited

Dalton v Henry Argus & Co (1881) 6 App Cas 740

Case cited

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333

Case cited

Spence v Queensland (2019) 268 CLR 355

Case cited

Queensland Nickel Sales Pty Ltd v Park (Liquidators) of Queensland Nickel Pty Ltd (in liq) (2025) 312 FCR 225; [2025] FCAFC 129

Case cited

St Paul’s College Ltd v Allan [2026] NSWCA 22

Case cited

Scott v Davis (2000) 204 CLR 333

Case cited

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34

Case cited

Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436 (No 2) [2021] VSCA 122

Case cited

Kalantzis v Brown

Case cited

Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603; (1998) 72 ALJR 937

Case cited

Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313

Case cited

TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130

Case cited

Banco de Portugal v Waterlow and Sons Ltd (1932) AC 452

Case cited

Pilkington v Wood (1953) Ch 770

Case cited

Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd (1976) 1 NSWLR 5

Case cited

Haines v Bendall (1991) 172 CLR 60; (1991) 65 ALJR 349

Case cited

Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; (1992) 66 ALJR

Case cited

Gagner Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413

Case cited

Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348

Case cited

Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353

Case cited