Habchy v Sammut [2024] NSWLEC 1079

Habchy v Sammut [2024] NSWLEC 1079

The failed retaining wall should be demolished and reconstructed on or near its existing shared-boundary position, with both parties contributing equally, because the expert evidence showed the wall was deflecting, deforming and degrading; both properties benefited from the retaining wall; and the excavation and level changes on the applicant's land likely contributed to the wall's structural deterioration. The low concrete wall did not need to be demolished because its encroachment was negligible, it had not failed, and it did not hinder construction of a dividing fence.

Jurisdiction
Australia
Judgment Date
27 February 2024
Procedural Posture
Class 3 Application for Relief Under the Encroachment of Buildings Act 1922 / Principal Judgment Following Terminated S 34 Conciliation
Outcome
Application allowed in part; orders made for the failed retaining wall to be demolished and reconstructed with shared costs, but the low concrete wall was not required to be demolished.
Legal Topics
['retaining Wall Encroachment' 'shared Boundary' 'removal of Encroachment' 'demolition and Reconstruction of Retaining Wall' 'cost Contribution Between Adjoining Owners']
['property Law' 'land and Environment Court Jurisdiction' 'encroachment of Buildings'] ['retaining Wall Encroachment' 'shared Boundary' 'removal of Encroachment' 'demolition and Reconstruction of Retaining Wall' 'cost Contribution Between Adjoining Owners']

Case Brief

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Procedural Posture

Class 3 Application for Relief Under the Encroachment of Buildings Act 1922 / Principal Judgment Following Terminated S 34 Conciliation

Legal Issues

  1. 1 ["Whether the retaining wall encroaching on the applicant's land should be demolished." 'Whether the respondent should bear the cost of demolition and reconstruction of the retaining wall.' 'Whether a replacement retaining wall should be constructed on the shared boundary in the same or similar position.' 'Whether the very minor encroachment of the low concrete wall required demolition or removal.']

Ratio Decidendi

The failed retaining wall should be demolished and reconstructed on or near its existing shared-boundary position, with both parties contributing equally, because the expert evidence showed the wall was deflecting, deforming and degrading; both properties benefited from the retaining wall; and the excavation and level changes on the applicant's land likely contributed to the wall's structural deterioration. The low concrete wall did not need to be demolished because its encroachment was negligible, it had not failed, and it did not hinder construction of a dividing fence.

Court Disposition

Application allowed in part; orders made for the failed retaining wall to be demolished and reconstructed with shared costs, but the low concrete wall was not required to be demolished.

Orders

  • ['Within 6 months of the date of these orders, or such later date as may be agreed between the parties, the applicant and the respondent are to have the failed retaining wall on their shared boundary, as depicted in the survey by Adam Clerke Surveyors PL dated 10 October 2023 as "brick wall" and "stone wall",...