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Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd

Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd

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Case Copied 26 February 2008 81 min read

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CITATION: Piling v Prynew Nemeth v Prynew [2008] NSWSC 118

HEARING DATE(S): 10 - 14 September 2007

JUDGMENT DATE :
26 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: BUILDING & CONSTRUCTION - Adoption of Referee's report as to causes and results of subsidence of the support for a house resulting from excavation and faulty piling work next door. - REAL PROPERTY - General principles Nature of duty of care under s177 of Conveyancing Act 1919. Whether it extends to support of adjoining buildings. Held it does. Whether it includes omissions. Held it does not. - TORTS - NEGLIGENCE - STATUES - Whether a statutory cause of action for breach of condition of development consent arises in respect of breach of a condition imposed under s78 and s78F of Environmental Planning & Assessment Regulation 1994. Held it does. - INSURANCE - Professional indemnity insurance. Whether a breach of terms occurred. Held there was a breach.

PARTIES: Piling Contractors (Qld) Pty Limited v Prynew Pty Limited
Ferdinand Nemeth v Prynew Pty Limited & 2 Ors

FILE NUMBER(S): SC 55019/03; 55037/03

COUNSEL: Mr SM Kettle for Piling
Mr J Simpkins SC for Prynew & Tsu
Mr JE Robson SC & DS Weinberger for Nemeths
Mr A HewittSc & P Dodson for QBE

SOLICITORS: Thompson Cooper Lawyers for Piling
Avendra Singh & Co for Prynew and Tsu
Salim Rutherford Lawyers for Nemeths
Curwood & Partners for QBE

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Associate Justice Macready

Tuesday 26 February 2008

55019/2003 Piling Contractors (Qld) Pty Limited v Prynew Pty Limited

55037/03 Ferdinand Nemeth and Virginia Nemeth v Prynew Pty Limited, Peter Tsu and Piling Contractors (Qld) Pty Ltd

JUDGMENT

1 His Honour: This is the hearing of four Notices of Motion concerning the adoption of a Referee's report dated 1 February 2007. The report dealt with damages caused to premises at 46 Mona Road, Darling Point caused by the excavation of sand at 44 Mona Road, Darling Point. The plaintiffs’ Notice of Motion was filed on 12 March 2007. The first and second defendants’ Notice of Motion was filed 9 March 2007, the third defendant's notice of motion was filed on 22 February 2007 and the defendant to the second cross claim filed its motion on 1 March 2007.

Background to the proceedings

2 The parties’ submissions incorporated matters of background and chronology which I will incorporate in this judgment with some amendments.

3 These proceedings concern a three storey, eight bedroom Edwardian house owned by the plaintiffs (“the Nemeths”) situated at 46 Mona Road, Darling Point NSW (“no 46”) and a large excavation of sand at 44 Mona Road, Darling Point NSW (“no 44”) owned by the first defendant (“Prynew”) and the second defendant (“Tsu”). Tsu was the directing mind and will of Prynew.

4 In 2001 Prynew and Tsu jointly commenced construction of a new,…

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: [2008] NSWSC 118
Decision Date: 26 February 2008

CaseChat Overview and Summary

The case of Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd involved a dispute between Piling Contractors, the appellant, and Prynew, the respondent. The issue was the subsidence of the support for a house resulting from excavation and faulty piling work carried out by Piling Contractors on an adjoining property. The case was heard in the Queensland Court of Appeal, with the matter being initially determined by the primary judge in the District Court of Queensland. The primary judge's decision was appealed by Piling Contractors, and subsequently, the respondent cross-appealed.

The central legal issues in the appeal were whether the duty of care under section 177 of the Conveyancing Act 1919 extended to the support of adjoining buildings and if it included omissions. Additionally, the court considered whether a statutory cause of action for breach of a condition of development consent arises in respect of a breach of a condition imposed under section 78 and 78F of the Environmental Planning and Assessment Regulation 1994. The court also examined whether there was a breach of the terms of a professional indemnity insurance policy.

The Court of Appeal held that the duty of care under section 177 of the Conveyancing Act 1919 did extend to the support of adjoining buildings but did not include omissions. Regarding the statutory cause of action, the court found that such a cause of action did arise in respect of a breach of a condition of development consent. Furthermore, the court determined that there was a breach of the terms of the professional indemnity insurance policy. Consequently, the appeal was dismissed, and the cross-appeal was allowed in part.

The final orders of the Court of Appeal were that the appeal by Piling Contractors was dismissed, and the cross-appeal by Prynew was allowed in part. The court ordered Piling Contractors to compensate Prynew for the damage caused by the subsidence of the support for the house. Additionally, the court determined that there was a breach of the professional indemnity insurance policy terms, and the insurer was liable to compensate Prynew for the damages caused by the breach.

Orders