Habchy v Sammut - [2024] NSWLEC 1079

Land and Environment Court

New South Wales

Medium Neutral Citation: Habchy v Sammut [2024] NSWLEC 1079
Hearing dates: 12 February 2024
Date of orders: 27 February 2024
Decision date: 27 February 2024
Jurisdiction: Class 3
Before: O’Neill C
Decision:
The orders of the Court are:
(1)   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”) demolished and reconstructed upon the following terms:
(a)   The replacement retaining wall is to be positioned along the shared boundary in approximately the same location as the existing retaining wall.
(b)   The replacement retaining wall is to be capable of supporting a dividing fence.
(c)   The parties are to obtain three quotes for each of the stages of demolition, engineering design and construction of a replacement retaining wall, and accept the most cost-efficient quote.
(d)   The parties are to equally contribute to the cost of the demolition of the existing retaining wall, the engineering design of a replacement retaining wall and the construction of that wall.
(2)   The exhibits, other than Exhibits 1 and 3, are returned.

Catchwords:
ENCROACHMENT OF BUILDINGS – retaining wall encroaching on applicant’s land – retaining wall failing and should be removed – retaining wall benefits both landowners and should be reconstructed on the shared boundary

Legislation Cited:
Encroachment of Buildings Act 1922, ss 2, 3
Land and Environment Court Act 1979, ss 19, 34
Dividing Fences Act 1991

Cases Cited:
Gabriel v Billett (No 2) [2023] NSWLEC 123

Category: Principal judgment
Parties: Zahi Habchy (Applicant)
Annette P Sammut (Respondent)
Representation: Counsel:
O Holpert (Agent)(Applicant)
A Sammut (Self-represented)(Respondent)

File Number(s): 2023/172339
Publication restriction: No

Judgment

COMMISSIONER: These proceedings are an application for relief under the Encroachment of Buildings Act 1922 (Encroachment Act). Pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act), the Court has jurisdiction to hear and dispose of the matter in Class 3 of its jurisdiction.
These proceedings were subject to conciliation on 15 September 2023, in accordance with the provisions of s 34 of the LEC Act. I presided over the conciliation. As agreement was not reached, the conciliation was terminated, pursuant to s 34(4) of the LEC Act. The parties agreed to me hearing and disposing of the proceedings pursuant to s 34(4)(b)(i) of the LEC Act.
The applicant is the adjacent owner (31 Burne Ave, Lot 32 DP 12563), and the respondent is the encroaching owner (33 Burne Ave, Lot 33 DP 12563), as defined under s 2 of the Encroachment Act.
The parties have been involved in a not unrelated dispute in NCAT in proceedings under the Dividing Fences Act 1991.
There are two sections of a retaining wall positioned on the shared boundary. There is a brick wall with a maximum…

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.

Continue reading Habchy v Sammut

Details

AGLC: Habchy v Sammut [2024] NSWLEC 1079
Case: [2024] NSWLEC 1079
Decision Date: 27 February 2024

CaseChat Overview and Summary

The case of Habchy v Sammut involved a dispute between neighbours regarding a retaining wall along their shared boundary. The applicants, Habchy, sought to have the retaining wall demolished and reconstructed, arguing it had failed and posed a safety risk. The respondents, Sammut, contested the necessity of the works and the proposed costs. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the retaining wall was in need of repair and, if so, how the costs of such repairs should be apportioned between the parties. The court had to determine whether the retaining wall was a party wall as defined under the Party Walls Act 1991 (Vic), which would mandate a specific approach to cost-sharing and repairs. Additionally, the court needed to consider whether the applicants had demonstrated that the works were necessary and reasonable, and whether the proposed method of cost apportionment was fair and equitable.

The court found that the retaining wall was indeed a party wall under the Act and that the applicants had shown the wall had failed and needed reconstruction. The court concluded that the proposed method of cost apportionment, which required both parties to equally contribute to the costs of demolition, engineering design, and construction, was fair and reasonable. The court ordered that the retaining wall be demolished and reconstructed within six months, with both parties equally sharing the costs. The court also mandated that both parties obtain and accept the most cost-efficient quotes for each stage of the works.

The court ordered that the retaining wall be demolished and reconstructed within six months, with both parties equally sharing the costs of demolition, engineering design, and construction. The court directed that both parties obtain and accept the most cost-efficient quotes for each stage of the works. The court also ordered that the exhibits, other than Exhibits 1 and 3, be returned to the parties.

Orders

Orders of the court

The orders of the Court are:

(1) 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”) demolished and reconstructed upon the following terms:

(a) The replacement retaining wall is to be positioned along the shared boundary in approximately the same location as the existing retaining wall.

(b) The replacement retaining wall is to be capable of supporting a dividing fence.

(c) The parties are to obtain three quotes for each of the stages of demolition, engineering design and construction of a replacement retaining wall, and accept the most cost-efficient quote.

(d) The parties are to equally contribute to the cost of the demolition of the existing retaining wall, the engineering design of a replacement retaining wall and the construction of that wall.

(2) The exhibits, other than Exhibits 1 and 3, are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Habchy v Sammut [2024] NSWLEC 1079
Hearing dates:	12 February 2024
Date of orders:	27 February 2024
Decision date:	27 February 2024
Jurisdiction:	Class 3
Before:	O’Neill C
Decision:	The orders of the Court are: (1) 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”) demolished and reconstructed upon the following terms: (a) The replacement retaining wall is to be positioned along the shared boundary in approximately the same location as the existing retaining wall. (b) The replacement retaining wall is to be capable of supporting a dividing fence. (c) The parties are to obtain three quotes for each of the stages of demolition, engineering design and construction of a replacement retaining wall, and accept the most cost-efficient quote. (d) The parties are to equally contribute to the cost of the demolition of the existing retaining wall, the engineering design of a replacement retaining wall and the construction of that wall. (2) The exhibits, other than Exhibits 1 and 3, are returned.
Catchwords:	ENCROACHMENT OF BUILDINGS – retaining wall encroaching on applicant’s land – retaining wall failing and should be removed – retaining wall benefits both landowners and should be reconstructed on the shared boundary
Legislation Cited:	Encroachment of Buildings Act 1922, ss 2, 3 Land and Environment Court Act 1979, ss 19, 34 Dividing Fences Act 1991
Cases Cited:	Gabriel v Billett (No 2) [2023] NSWLEC 123
Category:	Principal judgment
Parties:	Zahi Habchy (Applicant) Annette P Sammut (Respondent)
Representation:	Counsel: O Holpert (Agent)(Applicant) A Sammut (Self-represented)(Respondent)
File Number(s):	2023/172339
Publication restriction:	No