Cohen v Double Bay Bowling Club (No 4)

The plaintiffs in Cohen v Double Bay Bowling Club (No 4) sought to amend their Technology and Construction List Statement to include a claim for breach of a statutory duty under section 177 of the Conveyancing Act 1919. The plaintiffs alleged that the defendant, the owner of the supporting land, removed support from their supported land by causing vibrations from work on the supporting land. This work included the use of vibratory equipment by the builder engaged by the defendant. The case was heard in the Supreme Court of New South Wales, where the plaintiffs had already been involved in proceedings for two years.

The primary legal issue the court had to address was whether the plaintiffs' proposed amended List Statement sufficiently alleged facts that, if proven, would amount to a breach of the statutory duty under section 177. The plaintiffs argued that the statutory duty not only applied to situations where support was removed but also where support was likely to be removed. They submitted that the proposed List Statement alleged facts that would establish the defendant's failure to take reasonable steps to prevent the builder from using vibratory equipment, thereby breaching the statutory duty. The court had to determine if these facts, if proven, could amount to a breach of the statutory duty as required by section 177.

The court found that the proposed amended List Statement did not sufficiently allege facts that, if proven, could amount to a breach of the statutory duty. The plaintiffs' geotechnical evidence only demonstrated that the vibrations had caused damage to the supported land, but did not establish how the vibrations removed the support from the supporting land to the supported land. The court held that the plaintiffs had not adduced evidence that would show how the vibrations removed such support, and therefore, the proposed List Statement did not allege sufficient facts. The court also noted that the only allegation regarding the breach of the statutory duty was the failure of the defendant to contract with its builder to prevent the use of vibratory equipment, which was not sufficient to establish a breach of the statutory duty under section 177.

The court concluded that the plaintiffs' application to amend the Technology and Construction List Statement was to be refused. The plaintiffs were not permitted to amend their List Statement to include the claim for breach of the statutory duty under section 177. The court's decision effectively barred the plaintiffs from pursuing this particular claim in their ongoing proceedings against the defendant.