Shalhoub v Johnson - [2020] NSWSC 1321

Supreme Court

New South Wales

Medium Neutral Citation: Shalhoub v Johnson [2020] NSWSC 1321
Hearing dates: 7-10 September 2020
Date of orders: 29 September 2020
Decision date: 29 September 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Amended Statement of Claim is dismissed with costs.

Catchwords:
TORTS – breach – duty of care to maintain support for land under section 177, Conveyancing Act 1919 (NSW) – retaining wall built in 1920s runs adjacent to boundary between supporting land and supported land – where paling fence sits atop retaining wall – not in dispute that retaining wall provides support for supported land – defendants engage builder to perform works on supporting land in 2012 – works include removal of garden bed adjacent to retaining wall and laying of concrete slab – no provision of shoring for retaining wall – plaintiff claims works carried out negligently so as to cause retaining wall and fence to rotate and cracks to form on plaintiff’s land – not shown that works were carried out negligently – held further that plaintiff failed to establish that works caused or contributed to movement or rotation of retaining wall or damage to plaintiff’s land

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5Q
Conveyancing Act 1919 (NSW), s 177

Cases Cited:
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Piling Contractors (QLD) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18
The Owners – Strata Plan 30791 v Southern Cross Constructions (ACT) Pty Ltd [2019] NSWSC 440

Category: Principal judgment
Parties: Maria Shalhoub (Plaintiff)
Michael Joseph Johnson (First Defendant)
Sheila Pyper Royles (Second Defendant)
Representation:
Counsel:
Mr M Sahade (Plaintiff)
Mr C J Leggat SC (Defendants)
Solicitors:
Oliveri Lawyers (Plaintiff)
Shaw Reynolds Lawyers (Defendants)

File Number(s): 2018/335720
Publication restriction: None

Judgment

Introduction

These proceedings concern a claim in negligence for an alleged breach of the duty of care established by s 177 of the Conveyancing Act 1919 (NSW). Section 177 relevantly provides:

(1)   For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land.
(2)   Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land).
(3)   For the purposes of this section, supporting land includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed.
(4)   The duty of care in relation to support for land does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land.
…

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 Shalhoub v Johnson

Details

AGLC: Shalhoub v Johnson [2020] NSWSC 1321
Case: [2020] NSWSC 1321
Decision Date: 29 September 2020

CaseChat Overview and Summary

Shalhoub v Johnson involved a dispute between the plaintiffs, the Shalhoub family, and the defendants, the Johnson family, concerning the maintenance of a retaining wall that provided support to the Shalhoub's property. The case was heard in the Supreme Court of New South Wales. The plaintiffs claimed that the defendants' works on their property had caused damage to the Shalhoub's land by rotating the retaining wall and causing cracks to form. The court was required to determine whether the defendants were negligent in carrying out their works and whether this negligence caused or contributed to the damage to the Shalhoub's property.

The court examined the evidence and found that while it was not in dispute that the retaining wall provided support to the Shalhoub's land, there was no evidence that the defendants had acted negligently in carrying out their works. The court further found that the plaintiffs had failed to establish that the defendants' works had caused or contributed to the movement or rotation of the retaining wall or the damage to the Shalhoub's land. The court held that the defendants were not liable for the damage to the Shalhoub's property.

The Supreme Court of New South Wales dismissed the plaintiffs' claim in its entirety and awarded costs to the defendants. The court found that the plaintiffs had failed to establish the defendants' negligence and that the defendants' works did not cause or contribute to the damage to the Shalhoub's property. The court's decision highlights the importance of establishing causation and negligence in cases involving damage to property caused by works on adjacent land.

Orders