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Llavero v Shearer

Llavero v Shearer

Case [2014] NSWSC 1336 1 October 2014

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Supreme Court

New South Wales

Medium Neutral Citation: John Llavero v Brett Anthony Shearer [2014] NSWSC 1336
Hearing dates: 15 September 2014; 16 September 2014; 17 September 2014
Decision date: 01 October 2014
Jurisdiction: Equity Division
Before: Young AJA
Decision:
Matter stood over for Short Minutes at 9:30am on 3 October 2014
Plaintiff to pay third defendant's costs

Catchwords:
TORTS - Right of Support - whether there is a duty of care to provide support to neighbouring land - whether right of support extends to improvements to land - meaning of "supported land" - whether excavation work actually caused loss of support - whether loss of support caused damage to adjoining property - where better, but possibly still inadequate support, was constructed to replace existing inadequate support to neighbouring land - whether appropriate to grant damages - application of s 117 of the Conveyancing Act 1919 (NSW)

TORTS - negligence - contributory negligence and proportionate liability - whether builder liable for contributory negligence or proportionately liable with owner of property as the person who caused the alleged loss of support - whether duty not to deprive one's neighbour's land of support is a non-delegable duty
REAL PROPERTY - encroachments to land - whether retaining wall is an encroachment onto adjoining property - meaning of "the subject land" - what is the appropriate remedy for a minor encroachment - whether encroachment can be ignored where trivial- whether appropriate to order conveyance, easement or licence over encroaching portion of land - whether appropriate to award compensation, licence fee, nominal compensation, or negotiated damages - whether effect on later sales of subject property is a relevant factor in determining the appropriate remedy - where easement would have no market value and no unimproved capital value - whether minimum award for encroachment under the Act is appropriate - whether retaining wall and fence on top are a "dividing fence" under the Dividing Fences Act 1951 NSW - calculating appropriate amount of compensation - application of s 4 of the Encroachment of Buildings Act 1922 (NSW)
Legislation Cited: Civil Liability Act 2002 (NSW)
Conveyancing Act 1919 (NSW)
Dividing Fences Act 1951 (NSW)
Encroachment of Buildings Act 1922 (NSW)
Cases Cited: Alcock v Wraith (1991) 59 BLR 20
Anagnostou v Vinicio (1995) 87 LEGRA 232
Bower v Peate (1876) 1 QBD 321
Brown v Robins (1859) 4 H & N 186; 157 ER 809
Bunney v South Australia (2000) 77 SASR 319
Burnie Port Authority v General Jones Pty
Ltd [1994] HCA 13; 179 CLR 520
Butland v Cole (1995) 87 LGERA 232
Cantamessa v Sanderson (1993) 6 BPR 13127
Cuthbert v Hardie (1999) 17 NSWLR 321
Dalton v Henry Angus & Co. (1881) 6 App Cas 740
Eaton Mansions (Westminster) Ltd v Stinger Compania de Inversion SA [2012] EWHC 3354 (Ch)
Economy Shipping Pty Ltd v ADC Buildings Pty Ltd [1969] 2 NSWR 97
Farrow Mortgage Services v Boscaini Investments Pty Ltd (1996) 189 LSJS 337
Gartner v Kidman [1962] HCA 27; 108…

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 Llavero v Shearer

Details

AGLC: Llavero v Shearer [2014] NSWSC 1336
Case: [2014] NSWSC 1336
Decision Date: 01 October 2014

CaseChat Overview and Summary

Llavero v Shearer involved a dispute between two neighbouring property owners over the excavation of land, which led to damage to the adjoining property. The case was heard in the Supreme Court of New South Wales. The plaintiff, Llavero, claimed that the defendant, Shearer, had caused damage to his property by excavating land adjacent to Llavero's property, which resulted in the loss of support to Llavero's land. Llavero sought damages for the loss of support, as well as compensation for an encroachment by a retaining wall and fence onto his property.

The legal issues in the case included whether there was a duty of care to provide support to neighbouring land, whether the right of support extended to improvements to the land, and whether the excavation work had actually caused the loss of support. The court also considered whether the builder was liable for contributory negligence or proportionately liable with the owner of the property, and whether the duty not to deprive one's neighbour's land of support was a non-delegable duty. Additionally, the court had to determine the appropriate remedy for the encroachment of the retaining wall and fence onto Llavero's property.

The court found that there was a duty of care to provide support to neighbouring land, and that the right of support extended to improvements on the land. The court held that the excavation work had caused the loss of support, which in turn caused damage to Llavero's property. The court also found that the builder was not liable for contributory negligence or proportionately liable with the owner of the property, as the duty not to deprive one's neighbour's land of support was a non-delegable duty. The court ordered Shearer to pay damages to Llavero for the loss of support, as well as compensation for the encroachment of the retaining wall and fence onto Llavero's property. The court also ordered Shearer to remove the retaining wall and fence from Llavero's property.

In conclusion, the court held that Shearer was liable for the damage caused to Llavero's property due to the loss of support caused by the excavation work. The court found that the builder was not liable for contributory negligence or proportionately liable with the owner of the property, as the duty not to deprive one's neighbour's land of support was a non-delegable duty. The court also ordered Shearer to pay compensation for the encroachment of the retaining wall and fence onto Llavero's property, and to remove the encroaching structures from Llavero's property.

Orders