The Owners, Strata Plan 11011 v Integrated Project Services Pty Ltd & Anor (No. 2) [2015] NSWSC 554

The Owners, Strata Plan 11011 v Integrated Project Services Pty Ltd & Anor (No. 2) [2015] NSWSC 554

Because the defendants conceded that support had to be reinstated and the evidence established removal or reduction of support, the determinative question was the appropriate method. The Court preferred the evidence of the plaintiff's independent and more experienced engineer, Mr Joannides, over Mr Khalil. Although grout injection would be quicker and simpler, it carried a materially greater risk of failure, including because it was not observable below ground and because the defendants' project conduct and non-compliance with development consent conditions gave grounds for concern that it might not be properly implemented. Concrete underpinning, if properly carried out, offered a better...

Jurisdiction
Australia
Judgment Date
29 April 2015
Procedural Posture
Equity Division Building and Construction Proceedings Concerning Right of Support and Mandatory Injunctive Relief / Principal Judgment on Final Mandatory Injunction and Related Orders After Interlocutory Injunction
Outcome
Mandatory injunctive and repair relief granted substantially in favour of the plaintiff; declaration refused as lacking utility; remaining claims otherwise dismissed save as to costs.
Legal Topics
['right of Support for Land' 'mandatory Injunction' 'excavation Works' 'reinstatement of Support' 'development Consent Conditions' 'repairs and Costs']
['building and Construction' 'property Law' 'equity' 'negligence'] ['right of Support for Land' 'mandatory Injunction' 'excavation Works' 'reinstatement of Support' 'development Consent Conditions' 'repairs and Costs']

Case Brief

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Procedural Posture

Equity Division Building and Construction Proceedings Concerning Right of Support and Mandatory Injunctive Relief / Principal Judgment on Final Mandatory Injunction and Related Orders After Interlocutory Injunction

Legal Issues

  1. 1 ["What form of mandatory injunctive relief should be ordered to reinstate support to the plaintiff's land and building following excavation on adjoining land." "Whether the defendants' proposed grout injection method or the plaintiff's proposed concrete underpinning method should be required." "Whether a declaration of the plaintiff's right of support should be made." 'What repair, restraint and costs orders should be made.']

Ratio Decidendi

Because the defendants conceded that support had to be reinstated and the evidence established removal or reduction of support, the determinative question was the appropriate method. The Court preferred the evidence of the plaintiff's independent and more experienced engineer, Mr Joannides, over Mr Khalil. Although grout injection would be quicker and simpler, it carried a materially greater risk of failure, including because it was not observable below ground and because the defendants' project conduct and non-compliance with development consent conditions gave grounds for concern that it might not be properly implemented. Concrete underpinning, if properly carried out, offered a better...

Court Disposition

Mandatory injunctive and repair relief granted substantially in favour of the plaintiff; declaration refused as lacking utility; remaining claims otherwise dismissed save as to costs.

Orders

  • ["The existing interlocutory injunction restraining excavation or further excavation works on the second defendant's land and drilling, coring or piering on the common boundary was discharged." "Except to carry out the underpinning works, until completion of those works the second defendant was restrained from...