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

1. 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.

…

(12)   A reference in this section to the removal of the support provided by supporting land to supported land includes a reference to any reduction of that support.

2. The duty imposed by s 177(2) is a duty to take reasonable care not to do anything on or in relation to the supporting land that removes the support provided by that land to other land (see Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [198] per Campbell JA). It is made clear by s 177(12) that removal of support in this context includes any reduction of support.

3. The plaintiff, Mrs Maria Shalhoub, is the owner of the property at 8 Helena Street, Randwick. The defendants, Mr Michael Johnson and Ms Sheila Royles, are the owners of the adjoining property at 6 Helena Street. Helena Street runs in a generally eastern direction off Avoca Street. The rectangular properties at Nos 6 and 8 Helena Street extend in a northerly direction from the street to Helena Lane at the rear. Both properties have garages that open onto Helena Lane. No 6 is to the west of No 8. That is to say, as one looks north from Helena Street, No 6 is to the left of No 8. It can be said in general terms that the land in Helena Street slopes down to the west.

4. The focus of the case is a retaining wall that runs adjacent to the boundary between the two properties. The boundary is approximately 36.575m in length. The survey evidence indicates that the retaining wall is located on the defendants’ property at No 6, although there appears to be some minor encroachments onto No 8 in the southern (or front) half of the boundary. The plaintiff’s property at No 8 is on the higher side of the wall. It is not in dispute that the retaining wall has provided, and is intended to provide, support for No 8. A paling fence was erected on top of the retaining wall. The fence (which was replaced by the defendants in 2018) was supported by metal posts that were embedded in the concrete piers of the wall. The piers occur at roughly 3m intervals along the length of the wall. The depth of the piers is not known. The height of the retaining wall above the ground on No 6 varies but does not seem to exceed about 40 to 45cm.

5. By her Amended Statement of Claim filed on 13 August 2019, the plaintiff alleges that between about mid-2012 and mid-December 2012, and again from mid-2018, the defendants negligently caused work to be undertaken on No 6 which caused a removal or reduction of support to No 8. At the hearing, the case advanced by the plaintiff was apparently confined to the works that were carried out in 2012. No submissions were made about the more recent works.

6. The works carried out on No 6 in 2012 encompassed alterations to the house (including the addition of a second storey), and installation of an in-ground swimming pool, and concreting and associated landscaping, in the area to the rear of the house. The latter works involved the removal of soil from garden beds adjacent to the retaining wall, and the laying of a concrete slab. It is alleged that the manner in which these works were carried out, and in particular the excavation and movement of soil without any shoring of the retaining wall, was negligent and in breach of the duty imposed by s 177 of the Conveyancing Act. The particulars of negligence are expressed as follows:

1. failing to ensure that work carried out would not remove or reduce adequate support from No 8;

2. excavating around and under the retaining wall between No 8 and No 6 without first providing adequate support; and

3. res ipsa loquitur.

7. It is then alleged that the removal or reduction of support so occasioned caused damage to the improvements on No 8 including cracking and damage to the house, garage, carport, garden beds and concrete paths.

8. The defendants admit that works were carried out in 2012 that included minor excavation works in a 4m section near the retaining wall. They deny that they were negligent as alleged, and they further deny that any works caused any removal or reduction of support for No 8. In particular, the defendants deny that the works caused movement (that is, rotation) of the retaining wall. The defendants contend that the retaining wall has rotated over time, most likely due to other factors.

9. The plaintiff made an affidavit that was served, but she was not called to give evidence. The plaintiff is 78 years of age. A medical certificate from her regular general practitioner was admitted into evidence. The certificate stated that she has not recovered well from a stroke suffered in 2014, that her ability to understand is poor, and that her cognitive skills have declined significantly in the past 3 months. The defendants did not make any Jones v Dunkel submission on the basis of the failure of the plaintiff to give evidence.

10. Evidence was given in the plaintiff’s case by two of her children, Ms Susan Shalhoub and Mr Nicholas Shalhoub. They have each lived at No 8 since 1980, together with the plaintiff and, until his death in 2011, their father. The plaintiff also called evidence from Mr Mark Chapman, a friend of Nicholas Shalhoub’s, about an inspection of the works on No 6 he says occurred on 29 November 2012. Finally, the plaintiff called expert evidence from an engineer, Mr Daniel Cully, and a quantity surveyor, Mr David Wallace. These witnesses, save for Mr Wallace, were cross-examined. Mr Wallace gave evidence about the cost of certain rectification works. His evidence was not challenged by the defendants.

11. The defendants each gave evidence. They also called evidence from the previous owners of No 6, Ms Vivienne Krassoi and Mr James Blackshaw, and the builder who carried out the works in 2012, Mr Bruno Hatzon. The defendants also called expert evidence from an engineer, Dr Daniel Martens. All of these witnesses were cross-examined.

The lay evidence – affidavits

12. Susan Shalhoub gave evidence that when she came to live at No 8 in 1980 there was a single-storey dwelling on the property. She says that a second storey was added in about 1982. She says that there has always been a concrete retaining wall running between No 8 and No 6.

13. Ms Shalhoub gave evidence about the condition of the property “prior to 2012”. She deposed:

I observed no cracking in the property at 8 Helena Street prior to 2012. I observed no cracking in the footpath, garage or carport areas of 8 Helena Street prior to 2012.

The retaining wall between 8 Helena Street and 6 Helena Street appeared to me to be standing straight prior to 2012. I observed no cracks in the retaining wall prior to 2012.

14. Ms Shalhoub gave evidence about the works conducted on No 6 in 2012. She deposed:

I observed development and construction works taking place at 6 Helena Street throughout 2012. I observed that during 2012 the ground level of the backyard of 6 Helena Street and the area between the side of the house and the retaining wall was lowered by up to a metre in some areas.

I observed that no support was put in place for the retaining wall from the 6 Helena Street side whilst those excavations were taking place during 2012.

15. Ms Shalhoub continued:

In late 2012 observed that the retaining wall and fence between 8 Helena Street and 6 Helena Street had started to lean away towards 6 Helena Street. I observed that the retaining wall had lowered and separated away from the concrete footpath along the side of our property.

In late 2012 I also saw cracks appearing in the retaining wall.

In late 2012 I also saw that cracks had appeared in the concrete pillars in the carport and the concrete benches in the carport. I observed that cracks had appeared in the concrete slab which forms the floor of the garage and carport area.

16. Ms Shalhoub gave further evidence about various cracks appearing in structures on No 8 “since 2012” (see Affidavit at paragraphs 14 to 17 and 19), and deposed that since 2012 she has observed that “the retaining wall has continued to lean further towards 6 Helena Street”.

17. Nicholas Shalhoub also gave evidence that when he came to live at No 8 in 1980 there was a single-storey dwelling on the property and that a second storey had been added by around 1982. Mr Shalhoub deposed:

Since the Property was purchased by my parents in 1973, but for the second storey being added around 1982 and the new boundary footpath around 1995, no significant changes, developments, alterations or renovations have taken place on the Property.

The garage and carport which are currently on the Property were on the Property when it was purchased by my parents in 1973. Since we moved in to the Property in 1980, it has always been our usual practice to park one or two vehicles in the garage and carport area.

The existing hot water system has been installed on the Property since 1981.

The existing garden beds and brick planter boxes have been on the Property since before 2012. I recall they were installed around 1981 or 1982. Prior to 2012 there was no cracking in those planter boxes.

18. Mr Shalhoub also gave evidence about the condition of the property “prior to 2012”. He deposed:

Prior to 2012 I observed no cracking in the retaining wall.

Prior to 2012 I observed no cracking in the footpath along the western boundary of the Property. That footpath has been in place since around 1995.

Prior to 2012 I observed no cracking in the garage or carport structures on the Property.

Prior to 2012 I observed no cracking in the concrete slab at the rear of the Property. The concrete slab, which forms the floor of our carport and garage consists of two smaller slabs. The seam between those slabs runs parallel to the boundary between the Property and the Next Door Property. Prior to 2012 the two slabs sat flush besides each other such that I observed no gap between the slabs.

Prior to 2012 I observed the retaining wall to not be leaning. The retaining wall had appeared to be stable and standing vertically until the second half of 2012.

19. In relation to the works carried out on No 6 in 2012, Mr Shalhoub deposed:

Works began on the Next Door Property pursuant to the Development Application as early as January 2012 and continued through to December 2012. During this period, I observed the following development works taking place:

(a)   Excavations of the land on the Next Door Property, in particular in the yard area,

(b)   Installation of an inground pool,

(c)   Significant landscaping works (completed around 2013 or 2014), and

(d)   Removal and replacement of the dividing fence which ran on top of the retaining wall between the properties.

20. Mr Shalhoub exhibited to his affidavit a number of photographs, taken at various times in 2012, that show the works in the rear yard of No 6 (and for a short distance along the side of the house on No 6). There is some controversy about the dates of two of the photographs (which appear in the Court Book, Exhibit H, at pages 35 and 36), in particular as to whether they were taken on 10 November 2012 as stated by Mr Shalhoub, or rather at some time between 21 June 2012 and 5 September 2012. This matter, and a related question about one of the photographs exhibited to Mr Johnson’s affidavit, will be returned to later.

21. Mr Shalhoub continued:

The excavations were performed using a mobile backhoe, which also had a large chisel type attachment, and a jackhammer. When the excavations were taking place in the Next Door Property, I could feel vibrations in our house. I observed that the excavation resulted in the ground level in the yard of the Next Door Property side being lowered by approximately 60cm.

I observed that the removed stone and soil filled approximately 30 bins, each about 6 or 10 cubic metres in capacity. I can only recall seeing a thin layer of soil being returned so that artificial turf could be installed upon it around 2013 or 2014.

Whilst these works were being performed, I observed that no underpinning or any supports for the retaining wall being put in place during the above described excavations.

22. Mr Shalhoub deposed:

Around September or October 2012 I first observed cracks appearing in the footing of the retaining wall. I also observed that the concrete benches in the carport were separating from the concrete columns in the carport. I observed that the retaining wall had separated from the concrete footpath along the western boundary and was leaning towards the Next Door Property. I could also see that the seam in the concrete slab at the rear of the property had opened so that a gap was visible.

23. On 24 October 2012 Mr Shalhoub sent a letter to the Randwick City Council which included the following:

There is a retaining wall between 6 and 8 Helena Street. This wall has now started to lean more since a backhoe was used to dig out the pool. The backhoe place and then moved tons of earth and sandstone against this wall and now have lowered the height of earth against the wall. The wall is now tilting more since this happen and is a danger of falling.

On Randwick council’s advice I was told to contact Paul Roff certifier. I spoke to him and he said that would come and inspect the wall and damage between 6 and 8, I never hear from him again.

There is cracking in the garden walls and cracks and structural damage in the car port and its column on our side of the retaining wall I have photos of the backhoe right up against the retaining wall.

Could you please send out a council engineer to inspect the wall and damge.

Mr Shalhoub does not recall receiving any response to the letter. I note that no photographs of the backhoe “right up against the retaining wall” were put in evidence.

24. He deposed that in late-November 2012 he arranged for Mr Mark Chapman “to inspect the retaining wall”, and that the inspection took place on 29 November 2012. Mr Shalhoub deposed:

Mr Chapman inspected the retaining wall on 29 November 2012. The builder working on the Next Door Property allowed Mark Chapman on to the Next Door Property to inspect the retaining wall. I can distinctly recall that around the area which is now the barbeque and patio area of the Next Door Property the ground level alongside the retaining wall had been lowered….I can then recall hearing the following exchange between Mark Chapman and the builder:

Mr Chapman:   This retaining wall needs to be underpinned to stop it moving. You can see that it is already moving.

The builder:   I can see that. To underpin the wall with piers would probably cost around $4,000. I will ask the owners about this.

25. Mr Shalhoub exhibited to his affidavit a copy of a letter dated 24 January 2013 he received from Mr Chapman concerning the inspection and related matters. The letter was written under the letterhead of Chester Group Development and Project Management, a firm of which Mr Chapman is a director. I note that Mr Chapman does not claim to have any qualifications as an engineer. The letter included the following:

After visiting your property on 29^th November 2012 and inspecting the issues you have raised, I note the following as items of concern and significance.

Obvious slant of boundary fence on the western side of the property.

Separation and cracks in concrete slab and drop in slab level in south west corner of slab in front of carport at rear of property.

Along the western boundary, there are signs of cracking and movement in the concrete structures due to movement in the soil and footings along the neighbouring boundary.

Movement to the fence footings and concrete structures along the western boundary appear to have been caused by the excavation of neighbouring land along the western boundary and is visible where soil was not in place under the strip footing for the boundary fence.

Significant signs of the movement can be seen in the separation of render on the brick pillars and structures and also in the concrete slab.

The contracting builder on the neighbouring property gave me permission to look at the strip footing from the neighbours side of the fence where I was able to put my hand in under the strip footing and see a significant gap where soil had fallen away from under the footing due to the excavation of surrounding soil and earth.

26. Mr Shalhoub further deposed:

I have observed that no work was done following 29 November 2012 to support or underpin the retaining wall.

During the period of October to December 2012 I observed the leaning or rotation of the retaining wall to continue to increase in angle towards the Next Door Property. I could also observe that the cracking and separation was worsening and widening during this period. Over this period of about six weeks the separation of the retaining wall from the concrete footpath had opened to an extent that I was able to slide my hand into the gap.

Following December 2012 the rate at which the retaining wall was leaning and the rate at which cracks were opening slowed, but these have continued to worsen at a steady, but slower, rate since late 2012.

27. Mr Shalhoub gave further evidence about various cracks appearing or opening up in structures on No 8 “since late 2012” (see Affidavit at paragraphs 39 and 60) and a number of photographs of the cracks are exhibited to his affidavit.

27. Finally, Mr Shalhoub gave some evidence about the sewer line for No 8 that runs underground near the boundary with No 6. He deposed that in about 1995 the old terracotta pipe was replaced with a new PVC pipe, and a new footpath was laid by the Council along part of that boundary area. Mr Shalhoub deposed that apart from that “new boundary footpath” and the second storey, no significant changes, developments, alterations or renovations have taken place on No 8 since 1973. He also deposed that aside from the removal of some roots from the sewer pipe in 2011, there have not been any issues with the sewer line since 1995. A report Mr Shalhoub obtained from a plumber in May 2017 suggests that there were then “no major cracks or misaligned joints within the system”.

28. Mr Chapman deposed that he attended No 8 on 29 November 2012 and observed that the boundary fence and retaining wall “was visibly slanted or rotated towards the neighbouring property at 6 Helena Street”. He deposed that a builder in the backyard of No 6 agreed to let him come over “to have a look at the footings for the fence”. Mr Chapman further deposed:

Once on the 6 Helena Street side of the boundary wall I observed that there was a gap between the base of the boundary retaining wall and the ground beneath. I was able to run my hand along this gap under the strip footing.

I was able to observe that there were no visible props or support for the retaining wall or fence.

I then had a short conversation with the builder to the following effect:

Mr Chapman:   This wall needs support to stop it from moving. It is already moving.

30. Mr Chapman annexed to his affidavit his letter to Mr Shalhoub dated 24 January 2013, as well as a letter dated 10 January 2017 (written on Chester Group letterhead) sent to Mr Shalhoub following another visit to No 8 on 10 January 2017.

31. Ms Krassoi deposed that she lived at No 6 between June 1998 and December 2005. After referring to the retaining wall, and stating that its height varied between approximately 20cm and 45cm, she deposed:

I observed that the retaining wall had a lean to it. It had a minor leaning towards my house that ran for the full length of the house starting at the southern boundary.

I did not notice any further leaning or additional deterioration of the retaining wall during the period we lived at the property.

…

I observed not only a lean in the fence, but also in the supporting retaining wall.

32. Mr Blackshaw gave evidence to the same effect.

33. Ms Royles deposed that she and Mr Johnson moved into No 6 in 2005. In relation to the retaining wall, Ms Royles deposed:

The retaining wall varied in height between approximately 20cm and 45cm and has not changed.

When my husband and I purchased our property, I saw that the retaining [wall] was leaning towards our house and say that it had a greater leaning towards the rear of our property than it did at the Helena frontage of our property.

34. Ms Royles deposed to various other matters concerning the relationship between the parties but it is not necessary to refer to these matters here. Commendably, the case was conducted by Counsel in a fashion that focused upon the central issues of legal significance, rather than other matters. I appreciate, of course, that some of these other matters would without doubt be important in the lives of these neighbours.

35. Mr Johnson deposed, in relation to the retaining wall:

The boundary between 6 Helena Street and 8 Helena Street is approximately 36.5 metres in length. A concrete retaining wall runs along the entire length, adjacent to the boundary but located within Our Property. The height of the retaining wall is approximately 400mm, as measured from Our Property side (i.e. the lower side). Until March 2018, the retaining wall supported a timber fence, which was attached to the top of the retaining wall by steel posts set into the piers of the concrete retaining wall.

Following our purchase of Our Property and prior to 2012, I observed that an approximately 22 metre section of the retaining wall at the rear (i.e. north) of Our Property exhibited some cracks and was leaning inwards towards Our Property. The most noticeable consequence of the retaining wall’s lean was the corresponding angle at which the timber fence also leaned. At page 2 of MJJ Documents is a photo of my daughter on a trampoline in 2010. In the background can be seen the fence, exhibiting a lean towards 6 Helena Street. As a point of comparison, I have included at page 3 of MJJ Documents a more recent photo (taken 27^th March 2018) of the section of the retaining wall that exhibits a lean.

…

In contrast to the condition of the retaining wall at the rear, I observed prior to 2012 that an approximately 14 metre section of the retaining wall at the front (i.e. south) of the property was standing largely upright and has remained in that condition since.

36. Mr Johnson gave evidence about the works undertaken on No 6 in 2012, including the following:

In February 2012, my family and I vacated Our Property to allow renovations to be undertaken (Renovation). These renovations comprised the remodelling of the rear of our house, the addition of an upstairs level, the construction of an in-ground pool adjacent to the western boundary of Our Property and landscaping at the rear of Our Property.

In October 2012, the renovations to the house were largely complete, and my family and I moved back into Our Property. Further landscaping at the rear (north) of Our Property was completed in November and December 2012.

The Renovation design required excavation of two areas at the rear of Our Property: first, construction of an in-ground pool along the western boundary (i.e. more than 8 metres from the eastern boundary); and, second, removal of an approximately 3-4 metre length section of garden bed along the eastern boundary (i.e. adjacent to Our Neighbour’s Property, 8 Helena Street – being the Plaintiff’s property).

The section of garden bed removed from the eastern boundary was approximately 400mm in height and was located immediately adjacent to the retaining wall along the eastern boundary. The width of the section of garden bed that was removed varied from 1 to 2 metres. At pages 7, 8 and 9 of MJJ Documents are photos of the garden bed, prior to the removal of a 3-4 metre length section. In the photographs I have identified the approximate section length of the garden bed removed with red rectangles.

The reference to “MJJ Documents” is to the exhibit to Mr Johnson’s affidavit.

37. Mr Johnson later deposed, specifically in response to the affidavits served by the plaintiff:

The only area where the ground level was lowered was through the removal of a 3-4 metre long section of garden bed, of between one to two metres in width, alongside the retaining wall, approximately adjacent to the Plaintiff’s carport. The height of the garden bed removed was approximately 400mm.

38. Mr Johnson continued:

The excavation and removal of the section of garden bed was undertaken in November 2012 to allow for a concrete slab to be poured, prior to the laying of paving. In the days following the removal of the section of garden bed, a 100mm-thick steel-reinforced concrete slab was poured across a large section of the backyard, including covering the area from which the stated section of garden bed had been removed. To provide additional support to the exposed 3-4 metre section of retaining wall, our builder also constructed a steel-reinforced concrete ‘lip’, of approximately 200mm in height, buttressed up against the exposed retaining wall. At pages 10 and 11 of MJJ Documents are photos of the concrete slab and additional lip, adjacent to the retaining wall.

The additional support of the concrete lip was added at my request, following a discussion I had with the Plaintiff in which she raised a concern about the potential impact upon her property by the removal of the stated section of garden bed.

In November 2012, I commenced discussions with the Plaintiff regarding the replacement of the dilapidated fence between our two properties….

During discussions with me about the fence, the Plaintiff alleged that movement of the retaining wall had caused damage to her property and she asked that we repair or replace the leaning section of retaining wall. The Plaintiff indicated that she would not agree to replacement of the fence until we had first repaired the retaining wall.

39. Mr Johnson deposed that in December 2012 he engaged a consulting engineering firm (SDA Structures Pty Ltd) to assess the retaining wall. A report received by Mr Johnson from Mr Kevin Mongey of SDA Structures Pty Ltd dated 22 December 2012 includes the following:

As requested, Kevin Mongey from SDA Structures visited your property at 6 Helena Street, Randwick on 19^th December, 2012. We were requested to examine the existing eastern boundary fence and base wall between numbers 6 & 8 Helena Street, comment on the condition of the fence and footing and the notable lean of the structure.

Over time there have been many occurrences which may have affected the fence and concrete base wall causing it to lean and some of these that we are aware of are noted below but it is beyond the scope of this report to explore the actual causes of the wall lean.

…

The eastern timber fence and concrete footing wall at 6 Helena Street, Randwick was inspected. The structure is over 10 years old, is approximately 1.8m high from the side of 6 Helena Street and consists of a timber paling fence with some timber framing and steel angle posts, set into a concrete base wall of unknown dimensions below ground (retaining approximately 0.5m of raised ground level on the side of number 8 Helena Street). The entire fence and footing wall is in a very poor condition and dilapidated state and has been in this state for many years. The top of the fence leans into the site of 6 Helena Street by over 200mm in some areas, it has planting growing on sections of it, has many loose/missing palings and any steel nails or angle posts are all badly rusted and loose. There has been no visual record or dilapidation survey presented to us for number 6 or number 8 Helena Street so we are unaware of the prior state of any structures before the date of our inspection.

The natural ground level of the area falls from number 8 downwards towards the west across the site of number 6 Helena Street. This is a relatively gentle land slope but may add to the natural pressure on the base wall of the fence causing it naturally to lean over time as this base is retaining approximately 0.5m of the higher ground level of number 8 Helena Street. The footing size of the concrete base wall is unknown and may be an unsuitable [sic] for a permanent structural retaining wall. Sandy soil conditions are most likely present on site, which are prone to natural ground movement around inadequate existing retaining structures.

…

There is a history of construction work at the properties including the recent renovation works at number 6. From inspection of the brickwork landscaping walls at number 8 adjacent to the boundary, and some concrete bench structures around the pergola, these minor structures are cracked and showing signs of distress from the leaning concrete base wall of the boundary structure. The cracking inspected has certainly been present for some time and is not a recent occurrence in our opinion given the visible growth of moss and aged appearance of the cracked areas. It is possible that these cracks have widened recently but this is not a quantifiable item as no records are available to us of any previous conditions prior to the recent renovations at number 6.

An area of paving slab in the centre of the site at number 6 has been newly built in the last few weeks and this would have lowered the ground level locally for a length of 2m to 3m here. With no visual record of the boundary structure prior to the paving slab being built, it is not possible to quantify any damage which may have occurred. Although it is not unreasonable that some existing damage could have worsened or new damage occurred during the building of this slab, given the dilapidated state of the boundary structure it is not reasonable to apportion all cause of deterioration to the building of this slab.

The rusting out of all metal in relation to the boundary structure and the lack of maintenance carried out to it has certainly exacerbated the deterioration of the boundary structure.

…

The base wall is not deemed to be in a condition which could collapse and this structure could well remain in place without much further deterioration for many years. Any further deterioration would be deemed to be an extremely low risk of causing damage to persons or property.

40. Mr Hatzon deposed that he has been a builder for 29 years. In relation to the works done on No 6 in 2012, he gave evidence that the job took 9 months, and he was the only builder on the site, assisted by several tradesmen. In relation to the condition of the retaining wall, Mr Hatzon deposed:

During my time working at 6 Helena Street there was a retaining wall that ran along the length of the boundary between 6 and 8 Helena Street. I noticed that the retaining wall had a lean. The lean was more pronounced at the middle and rear of 6 Helena Street than at the front.

I say that the retaining wall was dilapidated.

41. In relation to the work carried out, Mr Hatzon deposed:

I never saw the bottom of the retaining wall whilst working on the Job. I dug only to the level required for the laying of the concrete slab, which was a maximum of 200 millimetres in depth next to the retaining wall.

I dug to a depth of no more than 200 millimetres of soil at the rear area of the property next to the retaining wall to level the ground. I then built a reinforced concrete slab.

I put a “return” on the slab. This supported the retaining wall, which was already leaning inwards, that is to the west.

I could see the retaining wall. I could not see any gap between the base of the retaining wall and the ground beneath.

…

I used shovels and picks to complete the Job at 6 Helena Street.

I did not use a jackhammer or any vibrating machinery to carry out the Job.

I did not use any machines other than shovels and picks during the Job.

A pool subcontractor used a mini-excavator to dig the hole for the pool on the western side of the back yard. This machinery was used only for the pool excavation.

I made arrangements for a large waste bin to be brought onto the property during the Job for depositing building waste. The bin was brought onto the rear of the property by removing part of the back fence.

42. Mr Hatzon denied that he had ever given consent to Mr Chapman to access No 6.

43. Mr Hatzon further deposed:

I had coffee a number of times at 8 Helena Street with Maria Shalhoub at her house at 8 Helena Street, Randwick.

I met Nicholas Shalhoub on a couple of occasions.

Maria Shalhoub wanted to add a second storey to her garage at the rear of 8 Helena Street.

I was invited to look at the rear yard of 8 Helena Street by Maria Shalhoub.

While in the rear yard I saw:

a.   that the existing concrete slab at the back of the garage at 8 Helena Street was very old. In my opinion, the slab had no reinforcement. The slab looked cracked and like it had moved a lot; and

b.   that there was a gap approximately 50 millimetres wide between the footpath in the rear yard and the retaining wall.

The lay evidence – cross-examination

44. Each of the abovementioned witnesses was cross-examined, albeit only briefly in the cases of Ms Krassoi, Mr Blackshaw and the second defendant, Ms Royles.

45. Ms Shalhoub was challenged about her evidence that prior to 2012 the retaining wall appeared to be standing straight, but started to lean towards No 6 in late-2012. She was also challenged on her evidence about various cracks only appearing from late-2012 and thereafter. She essentially maintained the position as set forth in her affidavit.

46. I did not form a favourable impression of Ms Shalhoub as a witness. She seemed to me to be exceedingly defensive in giving her answers and at times appeared evasive. An example of the former is her response (at Transcript 16) to a photograph of the boundary taken from Helena Lane and said to have been taken in November 2009. Ms Shalhoub was at pains to question the assumption she had been asked to make about the date of the photograph before, it should be said, going on to make a valid point about the poor quality of the photograph (see also at Transcript 18). Another example is her similar reaction (at Transcript 20) to a photograph of the fence she was asked to assume was taken on 8 December 2010. Ms Shalhoub also seemed very defensive (at Transcript 14) when asked about the fence above the retaining wall. She said that she did not remember the fence that well.

47. Ms Shalhoub appeared evasive when she was asked questions about what she meant by “standing straight”. At one point (at Transcript 19) she avoided a simple question, and when asked to answer it she stated that she did not “agree with the question”. The evasion in relation to that matter continued when she claimed (at Transcript 20) not to understand another question.

48. Some other parts of Ms Shalhoub’s evidence were unimpressive. Her evidence (at Transcript 20-24) about what she could actually observe from No 8 about the works (in particular excavation) on No 6 in 2012 is an example. Here, she did not appear to me to be trying to give direct and truthful answers. One answer she gave was to the effect that it was “obvious” that the level of parts of No 6 had been “lowered by up to a metre”. That evidence was implausible.

49. I would not be prepared to accept the evidence of Ms Shalhoub unless it was corroborated by other evidence that is likely to be reliable.

50. Mr Shalhoub was cross-examined at some length. He was challenged about most aspects of his testimony, including by reference to events concerning No 8 going back to the 1990s. I did not form a favourable impression of Mr Shalhoub as a witness.

51. He, too, was evasive at times. After initially accepting that he had signed an application to the Council in February 1993 for the removal of a tree located on the footpath outside the front of No 6, and written a letter to the Council in April 1992 about the tree, Mr Shalhoub suggested (at Transcript 48) that there was “something really wrong” about the documents because there were said to be two different versions of his signature. Mr Shalhoub also had a tendency to be concerned about what the cross-examining counsel was trying to achieve, rather than simply trying to answer the question asked.

52. I note that Mr Shalhoub also took issue (at Transcript 70-71) with the photograph of the boundary taken from Helena Lane and said to have been taken in November 2009. Mr Shalhoub stated that he did not see it as “a genuine photo”, and that it was a fake, altered by someone. Mr Shalhoub was prepared to agree that the photograph appeared to show the fence and retaining wall to be tilted or leaning towards No 6, but asserted that he knew that not to be true. He went so far as to state that without a doubt he was one hundred percent sure that the retaining wall and fence were straight up and down. That claimed degree of certainty stood in marked contrast with other parts of his evidence where he appeared keen to portray that he almost never went into the rear portion of No 8. Mr Shalhoub gave several answers to that effect (at Transcript 77-79) when asked about the photograph of the fence taken on 8 December 2010. I think that Mr Shalhoub was deliberately playing down his involvement in this regard in order to avoid close questioning about the condition of the fence (see also at Transcript 82).

53. The evidence given by Mr Shalhoub (at Transcript 92-94) about the concrete “lip” that was constructed on No 6 near the retaining wall was problematic. Mr Shalhoub was shown a photograph of the concrete slab and lip, said to have been taken on 24 November 2012. He suggested that the lip (the “return” referred to by Mr Hatzon in his affidavit) was not constructed until well into 2013. This evidence was not contained in Mr Shalhoub’s affidavit and appears contrary to the pleaded case which refers to works concluding in mid-December 2012. Mr Shalhoub went on to say that he knew the lip was not there until 2013 because in 2013 he went onto No 6 with an engineer and “ran my hand underneath”. Mr Shalhoub suggested that the retaining wall “basically hung there in 13 [2013] unsupported”. Again, there was no mention of these matters, which would plainly be relevant and indeed significant, in Mr Shalhoub’s affidavit.

44. The evidence given by Mr Shalhoub (at Transcript 106-107) about no issues with the sewer line after 1995 is also problematic. It is firmly contradicted by documents in the records of the Council which I regard as reliable (in particular the City Services report of 5 September 2005 and the Works Report of 11 November 2008).

45. Overall, I gained the impression that Mr Shalhoub was prepared to tailor his evidence in the interests, as he perceived it, of the plaintiff’s case. I do not regard him as a reliable witness. I would not be prepared to accept his evidence unless it was corroborated by other evidence that is likely to be reliable.

46. Mr Chapman readily conceded that he had a close relationship with Mr Shalhoub. He was quite certain that he carried out his inspection on 29 November 2012. When confronted with the photograph said to have been taken on 24 November 2012, and the suggestion that it was not physically possible to run a hand along a gap under a strip footing in that location, Mr Chapman said that he was not lying but may be mistaken. He also suggested that he “could have been further along” to the side of the house on No 6, and offered that whilst he could not recall, his best memory was that he was able to put his hand under a strip footing “along that fence line in that area”.

47. Notwithstanding the friendship between Mr Chapman and Mr Shalhoub (which Mr Shalhoub appeared to play down in the witness box), and Mr Chapman’s evident desire to assist Mr Shalhoub (for example, by providing the letter dated 24 January 2013), I am prepared to accept that the claimed inspection is not entirely an invention on his part. I do not think it likely that Mr Chapman would deliberately give false evidence about the matter, and I am therefore prepared to accept that on about 29 November 2012 he went on to No 6 (although probably not at the invitation of Mr Hatzon, who denied that he allowed Mr Chapman onto the site).

48. Difficulties nonetheless remain with Mr Chapman’s account. If one accepts (as I do) that the photograph was indeed taken on 24 November 2012, and if one further accepts (as I do) Mr Hatzon’s evidence that it would be impossible to put a hand under the retaining wall in the area of the concrete slab, Mr Chapman cannot on 29 November 2012 have placed his hand in any gap between the base of the retaining wall and the ground beneath, in that area. In these circumstances it is difficult to be confident about what Mr Chapman actually did and what he actually observed. No assistance is obtained from any notes or photographs taken by Mr Chapman of the occasion. He agreed that he did not make any notes or take any photographs. There is a considerable degree of imprecision about the evidence including, as conceded by Mr Chapman, as to where he may have been when he made his observations.

49. As already noted, Ms Krassoi and Mr Blackshaw were cross-examined only briefly. The testimony of neither was challenged in any fundamental way. Mr Blackshaw confirmed that from 1998 he could observe that there was a minor lean in the paling fence on top of the retaining wall, and a minor lean in the retaining wall itself. He said that you would not need a plumb line to tell that the fence was leaning into No 6.

50. Ms Krassoi said that the wall had a lean and the fence was in a pretty poor state. She agreed that there was a minor lean in the fence and, by reference to the 8 December 2010 photograph of the fence, said that “it was worse than that at the back”. Ms Krassoi agreed that from 1998 to 2005 both the retaining wall and the fence had a minor lean “off vertical, a little bit”.

51. There is no reason not to accept the evidence given by Ms Krassoi and Mr Blackshaw as honestly given to the best of their recollections. It is preferred to the evidence given by Ms Shalhoub and Mr Shalhoub about the retaining wall and fence.

52. Mr Hatzon was principally challenged about the extent of excavation of No 6 carried out in 2012, and whether shoring of the retaining wall should have been installed in accordance with a condition of the development consent (condition 29). Condition 29 is in the following terms:

All excavations and backfilling associated with the erection or demolition of a building must be executed safely in accordance with appropriate professional standards and excavations must be properly guarded and supported to prevent them from being dangerous to life, property or buildings.

Retaining walls, shoring or piling must be provided to support land which is excavated in association with the erection or demolition of a building, to prevent the movement of soil and to support the adjacent land and buildings, if the soil conditions require it. Adequate provisions are also to be made for drainage.

Details of proposed retaining walls, shoring or piling are to be submitted to and approved by the Principal Certifying Authority for the development prior to commencing such excavations or works.

63. Mr Hatzon gave his evidence in a confident manner. He appeared to have a reasonably good recollection of the works he undertook on No 6 in 2012, and generally seemed to be attempting to directly answer the questions put to him. I formed a favourable impression of him as a witness and I generally accept his evidence.

64. In relation to condition 29 of the development consent, Mr Hatzon gave evidence to the effect that he complied with the condition but there was no need for shoring of the retaining wall because there was no excavation (as opposed to soft soil removal) in that area. He later stated (at Transcript 126) that there was excavation of 100mm for the concrete slab, as well as the removal of soil from the garden bed near the retaining wall and fence. Mr Hatzon gave evidence (at Transcript 131 and 143) that there was about 200mm of soft soil taken away from the garden bed. (Mr Hatzon had earlier suggested at Transcript 129 that there was about 300mm of soft soil in the garden bed.) Mr Hatzon denied (at Transcript 132) that any hard compacted ground was removed near the retaining wall. Mr Hatzon maintained that he did not use any machinery when excavating or removing soil. He also denied (at Transcript 143) that he dug at the base of the retaining wall.

65. Mr Hatzon also gave evidence about the condition of the retaining wall (which he sometimes described as a “bund wall”). He said that when he established the site at the start of the project, he noticed that the whole of the retaining wall had a lean, which was more pronounced at the middle and rear of the property than at the front. He declined to accept that it was “mostly vertical but not 100% vertical”. Mr Hatzon said it was “more than not vertical” and that it was “poor”. Mr Hatzon said that he saw that the retaining wall was dilapidated, and that it had failed many years earlier. He said that the lean in the fence was not necessarily due to the wall underneath it. Mr Hatzon denied that after he finished his works the retaining wall leaned much more significantly into No 6, and that he destabilised the wall so as to cause a lot more rotation. I note that it was not put to Mr Hatzon that he had a conversation with Mr Chapman about movement of the wall or a need for underpinning of the wall.

66. In relation to the lip, Mr Hatzon said that he put it in for structural reasons, to retain or stabilise the wall, to “stop the roll of the retaining wall continuing”. Mr Hatzon agreed that he did not seek the advice of an engineer about the lip.

67. It should be noted that Mr Hatzon stated that there had been no existing concrete slab. He said that there were only pavers laid on dirt which were removed to make way for the concrete slab. He identified the slab in the photograph at Exhibit H page 38 (said to have been taken by Mr Shalhoub on 5 September 2012). Mr Hatzon also stated that the barbeque area shown on the construction plan (Exhibit E) was not built.

68. Finally, it should be noted that Mr Hatzon said that when he established the site he noticed that on No 8 there was a gap of about an inch or an inch and a half long between the concrete slab on the side of the house and the retaining wall.

69. Ms Royles was tested about her evidence as to the lean of the fence and the retaining wall. She agreed that when she first moved into No 6 she noticed a minor lean in those structures, and she agreed that it was a little bit worse at the back. She recalled that the retaining wall was tilted so the fence was tilted. When shown the photograph of the fence taken on 8 December 2010, Ms Royles agreed that that was the area where it had the biggest lean, although she later said that she recalled that “further back” it leaned a little bit more. Ms Royles said that in the six years between 2012 and 2018 (when the fence was replaced with a new fence) she did not see any additional movement of the wall. She denied that around September 2012 the fence “had rotated even more”. She said she did not know anything about cracks starting to open up in No 8, and continuing to get worse, since the building works done in 2012.

70. Ms Royles gave her evidence in a straightforward manner. I accept her evidence.

71. Mr Johnson was asked about complaints from the neighbours at No 8 in relation to the retaining wall. He said that he had no recollection of any complaints prior to 2012 that the retaining wall was failing. He agreed that around 2012 when works were being done there were conversations, generally with the plaintiff, that involved her concerns about the retaining wall “about where their carport is”. (I interpolate that the plaintiff’s carport is located to the south of the garage.) Later, Mr Johnson agreed that the plaintiff had expressed concerns after the removal of the garden bed, and he had then suggested to the builder that additional support be added. Mr Johnson did not accept that the concerns expressed by the plaintiff were about the possible destabilisation of the retaining wall. However, even if words such as that were not used, I think it likely that there was concern expressed about the adequacy of the wall, and this prompted Mr Johnson’s suggestion to Mr Hatzon of some additional support. I nonetheless accept Mr Johnson’s denial that one of the reasons he made the suggestion was that he considered that the wall needed additional support.

72. When shown the photograph of the fence taken on 8 December 2010, Mr Johnson said that the fence showed a clear lean, but he would not disagree if someone said it was “minor”. Mr Johnson did not accept that there was a much clearer lean in the wall after the builder had done his works, and he denied that he saw it as a lot more precarious.

73. Mr Johnson was tested about the reasons why he retained SDA Structures Pty Ltd in December 2012. He stated that he (and Ms Royles) largely wanted to know whether to build a new fence on top of the wall or put it to one side. He said that the fence was then in a worse condition due to more missing palings. Mr Johnson denied that he engaged the engineers to assess whether the lean in the wall was getting worse, but accepted that he wanted an assessment of the structural integrity of the wall. Mr Johnson said he was not qualified to know whether there was any substance to the plaintiff’s complaint, but thought that a report would rule out “the prospect of the retaining wall being problematic for us” (see Transcript at 175 in re-examination).

74. Mr Johnson said that he did not believe that the retaining wall has continued (presumably since 2012) to rotate towards No 6 causing damage to No 8.

75. Finally, Mr Johnson denied that he had any connection with Mr Hatzon other than that Mr Hatzon was “the builder who came to us through the architect”.

76. Mr Johnson gave his evidence clearly, and he was apparently doing his best to give accurate evidence. I note that at one point (at Transcript 167) he quickly corrected an error in an earlier answer. I note further that in so doing he stated that he “absolutely did get a consulting engineering firm to come and assess the retaining wall”. This episode, whilst minor in itself, is indicative of a witness wanting to give accurate answers without being overly concerned with whether the answers would help or hinder their cause. Overall, I formed a favourable impression of Mr Johnson as a witness, and I generally accept his evidence.

Expert evidence

77. The plaintiff called evidence from a structural and civil engineer, Mr Daniel Cully. He prepared a report dated 16 July 2019. Two earlier reports, dated 20 February 2018 and 19 March 2019, were appendices to the report. Mr Cully made a number of inspections of the site, including on 13 October 2017, 17 January 2018, 31 January 2018, 2 February 2018 and 26 October 2018. Mr Cully was asked to express his opinion on various matters including as to the cause or causes of the movement in the retaining wall.

78. On 13 October 2017 Mr Cully established a number of monitoring points on what he described as the corridor under investigation. Some of these points are referred to at pages 12-16 of the report. These points are upon structures other than the retaining wall itself. Mr Cully undertook measurements of movement over time at these points. The details of these measurements do not seem to be contained in the report.

79. Mr Cully conducted an analysis of existing survey data. The available surveys were:

1. Hill & Blume 31 May 2011;

2. Jackson 7 February 2013;

3. Ballenden 11 April 2017; and

4. CMS 17 January 2018.

80. Mr Cully excluded the Hill & Blume survey because it lacked data in respect of No 8. That survey only included survey points on No 6.

81. In brief, Mr Cully considered the survey data from the other surveys in respect of either side of the retaining wall and derived figures for “wall height” at various points, from the difference between the levels on No 8 and No 6. The wall heights at those points were then compared over time across the different surveys.

82. Mr Cully concluded, based on his review, that the ground level on the No 6 side of the retaining wall in the vicinity of the corridor under investigation “was altered (excavated and filled), each time, in between the dates of each survey”.

83. It should be stated at once that the survey information relied upon concerned a period of time that commenced after the carrying out of the works on No 6 in 2012 that are the focus of the plaintiff’s case. In cross-examination, Mr Cully accepted, in relation to one of his figures for percentage increase in retaining wall height, that it said nothing about what occurred on site in 2012 or prior to 2012 (see Transcript at 184). In any event, Mr Cully’s analysis of the survey data (which is set out at pages 18 to 20 of his report) led him to conclude that, except for two locations, the ground level on No 6 was reduced (excavated) in the period between 7 February 2013 and 17 January 2018. He stated that this excavation or lowering of the ground level “has had the effect of increasing the height of the retaining wall by between 7% to 43%” (see report at page 20).

84. Mr Cully also referred to a monitoring program undertaken by CMS Surveyors in respect of the period 17 January 2018 to 17 October 2018. This program was compromised to a degree by damage to or disturbance of some of the 91 monitoring points. Data in respect of a number of the monitoring points was accordingly disregarded. Based on the results of the monitoring program Mr Cully concluded, inter alia:

Excluding the damaged or destroyed monitoring point results, the monitoring results indicate that the wall is moving generally in a westerly direction, towards No.6 Helena Street. The movement direction and magnitude are consistent with the expected rotation of the wall due to destabilization as a result of excavation of material at the base of the boundary retaining wall on the western side.

…

Following a review of the surveys provided, it is clear that the ground level on the No 6 side of the boundary retaining wall has been lowered.

The current state of the path and wall (misalignment/gaps etc) indicate that prior to commencement of the monitoring program, significant movement of the retaining boundary wall had occurred. This is documented in Triaxial Consulting Report TX12845.00-01.rpt.dc.

The monitoring program has confirmed and proven that the retaining boundary wall is moving in a westerly, destabilizing direction.

The monitoring program has provided data indicating clear and measurable movement of the structures within the corridor under investigation, for the full length of the boundary.

85. In relation to the cause or causes in the movement of the retaining wall, Mr Cully stated:

It is my opinion that the lowering of the ground level (up to 43% increase in wall height) on the No.6 side is the main cause contributing to the previous and ongoing movement of the boundary wall and structures located to the east of the boundary wall in the corridor under investigation.

I am of the opinion that the excavation undertaken along the common boundary of retaining wall under consideration, on the No.6 side, has resulted in destabilizing of the retaining wall structure.

…

The excavation has resulted in destabilizing and overloading of the retaining wall (from the retained side) beyond its retaining capacity, following the removal of the soil on the No.6 side.

The removal of soil from the No.6 side of the retaining wall resulting in the removal of passive (restoring) forces, critical for the stability of the wall structure, increasing the loading on the wall.

Following removal of the passive forces from the retaining wall force system (due to excavation), unbalancing of the force system occurred, resulting in excessive deflection/rotation of the wall.

86. In a later section of his report, Mr Cully responds to a report of Dr Martens dated 9 March 2019. It is not necessary to refer here to that part of Mr Cully’s report. The essential points of agreement and disagreement between the experts can be seen from their most recent reports and particularly from their Joint Report dated 12 August 2020. I will note, however, that it is apparent from Mr Cully’s response that he relies to a significant extent upon the instructions contained in the letter of instruction from Oliveri Lawyers dated 14 June 2019, and the content of Mr Shalhoub’s letter to the Council of 24 October 2012 and Mr Chapman’s letter to Mr Shalhoub dated 24 January 2013. Mr Cully states, for example, that prior to the execution of the renovation works on No 6 “there were no issues in the corridor along the common boundary” and that “the common boundary retaining wall was stable prior to the renovations to 6 Helena Street in 2012” (see pages 38, 39 and 47 of the report; see also pages 18 to 21 and 26 of Mr Culley’s report of 20 February 2018).

87. Dr Martens is a civil, environmental and geotechnical engineer. He inspected the site on 17 December 2018. He compiled a history of construction works that have occurred on or near to No 6 and No 8 Helena Street. He considers it likely that the retaining wall was constructed in the 1920s, around the time of construction of the original homes on the properties. Dr Martens expressed the view that many of the construction works on No 8 over the years were in close proximity to the retaining wall, and are likely to have adversely affected its integrity, position and stability. Dr Martens referred to some Google Street View photographs, including the photograph referred to earlier said to have been taken from Helena Lane in November 2009. He stated that the photograph shows the fence post on the retaining wall to be leaning. However, as I have said, the quality of the photograph is poor. Dr Martens also referred to the SDA Structures Pty Ltd letter of 19 December 2012 in which it was stated, inter alia, that “the entire fence and footing wall is in a very poor condition and dilapidated state and has been in this state for many years”.

88. Dr Martens then considered Mr Cully’s report of 16 July 2019, and in particular his analysis of survey data. He expressed the view that the analysis was flawed for a number of reasons, including the failure to consider the Hill & Blume survey of 2011 (which Dr Martens considered to be a critical omission), and that almost none of the ground level observation points fall on an actual survey point.

134. The plaintiff has not established that the works carried out on No 6 in 2012 caused or contributed to the destabilisation, movement or rotation of the retaining wall, or the sustaining of damage to any structures on No 8. The plaintiff has not established that any negligence in the carrying out of those works was a necessary condition of the occurrence of any damage to her property.

Conclusion

140. The plaintiff’s claim in negligence has not been made out. It is not necessary in this case to go on to consider the question of damages in case the conclusion on negligence is incorrect. Damages received almost no attention in the course of the hearing. This is because the quantum of damages claimed, an amount of $137,685, was not disputed by the defendants, save for two minor matters (totalling $4,560). These items were amounts for repairs to the rear porch and the front porch of No 8. The defendants submitted that these items should be excluded as it was common ground that any movement of the retaining wall would not affect the structural integrity of the western wall of the house on No 8. A claim for injunctive relief to compel the defendants to cease work and restore support to No 8 was not pressed at the hearing. The Court will order that the Amended Statement of Claim be dismissed with costs.

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Decision last updated: 29 September 2020