Kalgovas v Iliopoulos - [2022] NSWSC 70

Supreme Court

New South Wales

Medium Neutral Citation: Kalgovas v Iliopoulos [2022] NSWSC 70
Hearing dates: 6-9 December 2021
Date of orders: 8 February 2022
Decision date: 08 February 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiffs succeed on negligence claim pursuant to s 177 of the Conveyancing Act. Mandatory injunctive relief to be granted in the first instance, with questions of assessment of damages or compensation deferred.

Catchwords:
NEGLIGENCE – duty not to reduce support for supported land – excavation works carried out near boundary with adjoining land – whether works reduced support provided to adjoining land – whether excavation works and steps taken to restore support to adjoining land were undertaken negligently – failure to install retaining wall on part of boundary – dry stone retaining wall installed along another part of boundary – wall not designed and appropriately constructed to cater for hydrostatic pressure and migration of soil – defendants’ conduct held to be negligent and a breach of duty – breach of duty held to have caused damage to structures on adjoining land – mandatory injunctive relief to be granted to require defendants to carry out works to restore support to adjoining land – Conveyancing Act 1919 (NSW), s 177
LAND LAW – encroachment of buildings – dry stone retaining wall encroaches to a minor degree upon adjoining land – wall inadequate to maintain support for adjoining land – encroachment itself does not cause any substantial impediment or restriction upon use of adjoining land – inadequacies in wall able to be remedied by works that do not involve removal of wall – order sought for removal of wall in order to remove encroachment – large cost of removal and replacement of wall – held not appropriate in the circumstances to make order for removal of the wall – Encroachment of Buildings Act 1922 (NSW), s 3

Legislation Cited:
Conveyancing Act 1919 (NSW), s 177
Local Government Act 1919 (NSW), Part 31 of Ordinance No 70
Encroachment of Buildings Act 1922 (NSW), s 3
Limitation Act 1969 (NSW), s 14
Civil Liability Act 2002 (NSW), ss 5B and 5D

Cases Cited:
Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738
Llavero v Shearer [2014] NSWSC 1336
Lord v McMahon [2015] NSWSC 1619
McIntosh v Morris [2021] NSWCA 225
Pantalone v Alaouie (1989) 18 NSWLR 119
Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118

Category: Principal judgment
Parties: Joseph Kalgovas (First Plaintiff)
Catherine Anne Kalgovas (Second Plaintiff)
Bill Iliopoulos (First Defendant)
Sophia Iliopoulos (Second Defendant)
Representation:
Counsel:
Mr P Barham (Plaintiffs)
Ms R Thrift (Defendants)
Solicitors:
JT Law Pty Ltd (Plaintiffs)
Eakin McCaffery Cox Lawyers (Defendants)

File Number(s): 2015/214260
Publication restriction: None

Judgment

Introduction

The plaintiffs, Mr and Mrs Kalgovas, are the owners of a residential property known as 18 Ingrid Road, Kareela (folio identifier 835/243651). They acquired the property (“No 18”) in 1986. At that time, the neighbouring property known as 20 Ingrid Road, Kareela (folio identifier 836/243651) was owned by the defendants,…

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 Kalgovas v Iliopoulos

Details

AGLC: Kalgovas v Iliopoulos [2022] NSWSC 70
Case: [2022] NSWSC 70
Decision Date: 08 February 2022

CaseChat Overview and Summary

The case of Kalgovas v Iliopoulos involved a dispute between two adjoining landowners in New South Wales. The plaintiff, Kalgovas, alleged that the defendants, Iliopoulos, had negligently carried out excavation works near the boundary of their respective properties. This work allegedly reduced the support provided to Kalgovas' land, causing damage to structures on that land. The defendants admitted that they had not installed a retaining wall on part of the boundary but claimed they had taken steps to restore support to Kalgovas' land. The defendants also installed a dry stone retaining wall along another part of the boundary, but this wall was not designed and constructed to cater for hydrostatic pressure and soil migration.

The legal issues in the case included whether the excavation works and the steps taken to restore support were negligent, and whether the breach of any duty owed by the defendants had caused damage to Kalgovas' land. The court had to determine whether the defendants' conduct amounted to a breach of the duty not to reduce support for supported land, and whether this breach had caused damage to the plaintiff's property. The court also had to consider whether the encroachment of the dry stone retaining wall onto Kalgovas' land warranted an order for its removal, and if so, whether such an order was appropriate in the circumstances.

The court found that the defendants had breached their duty to not reduce support for Kalgovas' land by carrying out excavation works near the boundary and failing to install a retaining wall on part of the boundary. The court also found that the dry stone retaining wall installed by the defendants was inadequate to maintain support for Kalgovas' land. The court held that the breach of duty had caused damage to Kalgovas' structures. However, the court found that the minor encroachment of the dry stone retaining wall did not cause any substantial impediment or restriction upon the use of Kalgovas' land. The court held that the inadequacies in the wall could be remedied by works that did not involve the removal of the wall. The court declined to make an order for the removal of the wall due to the large cost of removal and replacement.

The court granted mandatory injunctive relief to require the defendants to carry out works to restore support to Kalgovas' land, including the installation of a retaining wall on part of the boundary and the repair of the dry stone retaining wall. The court also awarded damages to Kalgovas for the damage caused to his structures. The court made no order for the removal of the dry stone retaining wall.

Orders