The Owners SP No 8075 v Esh Group Pty Ltd

In the case of The Owners SP No 8075 v Esh Group Pty Ltd, the dispute centred on the adequacy of the defendant's excavation work during the construction of a building, which allegedly caused subsidence to the adjoining property of the plaintiff. The case was heard in the Supreme Court of New South Wales. The plaintiff, who owned the adjoining property, alleged that the defendant had breached a non-delegable duty of care not to remove support from the plaintiff's land, as outlined in section 177 of the Conveyancing Act 1919 (NSW). The plaintiff further claimed that the defendant's negligence had resulted in ongoing subsidence and structural damage to their property, necessitating substantial repair costs.

The primary legal issues before the court were whether the defendant's duty of care under section 177 of the Conveyancing Act included an obligation to avoid omissions that could lead to subsidence, and whether the defendant had breached this duty. Additionally, the court had to determine if the plaintiff's failure to establish direct causation of the subsidence by the defendant's actions precluded reliance on the statutory duty. The court also considered whether the plaintiff's claim for ongoing repair costs was reasonable and if the defendant's failure to adduce evidence constituted an admission of the plaintiff's case.

The court found that the defendant's duty under section 177 of the Conveyancing Act encompassed both actions and omissions that could result in the removal of support from adjoining land. The court held that the defendant had breached this duty by failing to take reasonable precautions to prevent subsidence. Although the plaintiff could not establish direct causation, the court ruled that the recurrent nature of the subsidence and the defendant's omission to mitigate the risk constituted a breach of the statutory duty. The court also noted that the plaintiff's evidence regarding the reasonable costs of ongoing repairs was credible and awarded the full amount claimed. The defendants' failure to adduce evidence led the court to conclude that the plaintiff's case was substantiated. The court ordered judgment in favour of the plaintiff against each of the defendants for the sum of $494,665.78, with an allowance for any necessary variation of the interest amount.