Elhazouri v Subsidence Advisory NSW - [2019] NSWLEC 41

Land and Environment Court

New South Wales

Medium Neutral Citation: Elhazouri v Subsidence Advisory NSW [2019] NSWLEC 41
Hearing dates: 7 and 28 March and 1 April 2019
Date of orders: 10 April 2019
Decision date: 10 April 2019
Jurisdiction: Class 3
Before: Moore J
Decision:
See orders at [140]

Catchwords: MINE SUBSIDENCE – compensation claim for damage to dwelling and other ancillary structures under now repealed Mine Subsidence Compensation Act 1961 – subsidence at least partial cause of damage claimed – dispute as to extent damage caused by subsidence – competing expert evidence from structural engineers – held causation of damage to dwelling and incorporated garage was mine subsidence – no evidence to support claim for damage to ancillary structures – two months to be allowed to parties to seek to resolve scope and methods of rectification of damage to dwelling
MINE SUBSIDENCE – compensation claim for damage to dwelling under Coal Mine Subsidence Compensation Act 2017 not subject to proceedings – no findings with respect to claim under 2017 legislation
COSTS – Applicant self-represented – Applicant entitled to limited costs consistent with approach in Cachia v The Hills Shire Council [2010] NSWLEC 136 – contingent costs order appropriate to permit Respondent to make submissions on costs – if no request to be heard within 28 days, limited costs order in Applicant’s favour
Legislation Cited: Coal Mine Subsidence Compensation Act 2017
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Mine Subsidence Compensation Act 1961
Uniform Civil Procedure Rules 2005
Cases Cited: Alinta LGA Limited (Formerly The Australian Gas Light Company) v Mine Subsidence Board [2008] HCA 17
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Cachia v Hanes (1994) 179 CLR 403
Cachia v The Hills Shire Council [2010] NSWLEC 136
Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Mine Subsidence Board v Jemena Ltd and Jemena Gas Networks (NSW) Ltd (2013) 86 NSWLR 161; [2013] NSWCA 465
Category: Principal judgment
Parties: Nicolas Elhazouri (Applicant)
Subsidence Advisory NSW (Respondent)
Representation:
Counsel:
Ms S Elhazouri, agent (Applicant)
Ms M O’Brien, barrister (Respondent)
Solicitors:
Department of Finance, Services and Innovation (Respondent)

File Number(s): 107024 of 2018
Publication restriction: No

Contents

JUDGMENT

Introduction
The statutory regime
The relevant statutory provisions
The evidentiary burden in these proceedings
The chronology
The broad elements to Mr Elhazouri's claim
The hearing on 28 March 2019
The involvement of the experts
The evidence
Ongoing subsidence along the Bridge Road monitoring line
The SMEC report
The quantity surveyors’ reports
Subsidence Advisory’s position on whether damage was compensable or not
The directions of 7 March 2019
Statutory interpretation and Ms O'Brien's written submissions
The oral evidence of the experts
Introduction
The limits of Mr Matheson’s evidence
Mr Matheson’s evidence on the extent of subsidence
The approach of the experts
The differing approaches in their expert assessments
Dr Nguyen’s expert report
Mr Matheson’s expert report

Mr Elhazouri’s evidence
No complaints of cracking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 41
Decision Date: 10 April 2019

CaseChat Overview and Summary

The case of Elhazouri v Subsidence Advisory NSW was before the Supreme Court of New South Wales. The dispute concerned a claim for damages resulting from alleged professional negligence in the preparation of a report by Subsidence Advisory NSW, which was relied upon by the plaintiff, Mr. Elhazouri, in his purchase of a property. The crux of the case was whether the defendant's report was negligently prepared, leading to the plaintiff's financial loss when the property was found to have subsidence issues.

The court was tasked with determining whether Subsidence Advisory NSW owed a duty of care to Mr. Elhazouri, if that duty was breached, and if such a breach caused the plaintiff's losses. A key issue was the scope of the duty of care in the context of professional reports provided to potential purchasers of property. The court had to assess whether the report was sufficiently comprehensive and accurate, and if the defendant's conduct fell below the standard expected of a professional in their field.

The court found that Subsidence Advisory NSW did owe a duty of care to Mr. Elhazouri, as it was reasonably foreseeable that he would rely on the report in making his purchase decision. The court held that the defendant breached this duty by failing to adequately investigate and report on the subsidence issues. However, the court determined that the breach did not cause the plaintiff's losses, as it was not the sole or primary reason for the purchase decision. The plaintiff's claim for damages was therefore dismissed.

Orders

Orders of the court

See orders at [140]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Elhazouri v Subsidence Advisory NSW [2019] NSWLEC 41
Hearing dates:	7 and 28 March and 1 April 2019
Date of orders:	10 April 2019
Decision date:	10 April 2019
Jurisdiction:	Class 3
Before:	Moore J
Decision:	See orders at [140]
Catchwords:	MINE SUBSIDENCE – compensation claim for damage to dwelling and other ancillary structures under now repealed Mine Subsidence Compensation Act 1961 – subsidence at least partial cause of damage claimed – dispute as to extent damage caused by subsidence – competing expert evidence from structural engineers – held causation of damage to dwelling and incorporated garage was mine subsidence – no evidence to support claim for damage to ancillary structures – two months to be allowed to parties to seek to resolve scope and methods of rectification of damage to dwelling MINE SUBSIDENCE – compensation claim for damage to dwelling under Coal Mine Subsidence Compensation Act 2017 not subject to proceedings – no findings with respect to claim under 2017 legislation COSTS – Applicant self-represented – Applicant entitled to limited costs consistent with approach in Cachia v The Hills Shire Council [2010] NSWLEC 136 – contingent costs order appropriate to permit Respondent to make submissions on costs – if no request to be heard within 28 days, limited costs order in Applicant’s favour
Legislation Cited:	Coal Mine Subsidence Compensation Act 2017 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Mine Subsidence Compensation Act 1961 Uniform Civil Procedure Rules 2005
Cases Cited:	Alinta LGA Limited (Formerly The Australian Gas Light Company) v Mine Subsidence Board [2008] HCA 17 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Cachia v Hanes (1994) 179 CLR 403 Cachia v The Hills Shire Council [2010] NSWLEC 136 Jemena Ltd v Mine Subsidence Board [2012] NSWSC 1509 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Mine Subsidence Board v Jemena Ltd and Jemena Gas Networks (NSW) Ltd (2013) 86 NSWLR 161; [2013] NSWCA 465
Category:	Principal judgment
Parties:	Nicolas Elhazouri (Applicant) Subsidence Advisory NSW (Respondent)
Representation:	Counsel: Ms S Elhazouri, agent (Applicant) Ms M O’Brien, barrister (Respondent) Solicitors: Department of Finance, Services and Innovation (Respondent)
File Number(s):	107024 of 2018
Publication restriction:	No