Cohen v Double Bay Bowling Club (No 4) [2021] NSWSC 872

Supreme Court New South Wales

Medium Neutral Citation: Cohen v Double Bay Bowling Club (No 4) [2021] NSWSC 872 Hearing dates: 14 July 2021 Date of orders: 20 July 2021 Decision date: 20 July 2021 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Leave to amend Technology and Construction List Statement refused so far as concerns the first defendant; proceedings dismissed with costs against first defendant Catchwords: BUILDING AND CONSTRUCTION – statutory duty under s 177 not to do something that removes support from supporting land to supported land – allegation that vibrations from work on supporting land caused removal of support by supporting land to supported land – where proposed Technology and Construction List Statement did not allege facts that if proved would show how vibrations removed such support - where the only geotechnical evidence adduced by plaintiffs was to effect that the vibrations themselves have caused damage to supported land - where plaintiffs also alleged that breach of statutory duty constituted by failure of owner of supporting land to contract with its builder to prevent builder using vibratory equipment CIVIL PROCEDURE – amendment – Technology and Construction List Statement - claim for breach of the statutory duty in s 177 of the Conveyancing Act 1919 – where earlier application to amend List Statement refused - where proceedings on foot for two years – whether proposed List Statement alleged facts that if proved could amount to a breach of such statutory duty Legislation Cited: Civil Liability Act 2002 (NSW) Conveyancing Act 1919 (NSW) Cases Cited: Cohen & Anor v Double Bay Bowling Club & Ors [2021] NSWSC 295 Llavero v Shearer [2014] NSWSC 1336 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118 Category: Procedural rulings Parties: Gregory Clive Cohen (First Plaintiff/Respondent) Mariela Sverdloff (Second Plaintiff/Respondent) Double Bay Bowling Club (First Defendant/Applicant) Brianda Pty Ltd (Second Defendant) CF Group Piling Pty Ltd (Third Defendant) Representation: Counsel: D Weinberger (Plaintiffs/Respondents) J E Lazarus SC with M E Sheldon (First Defendant/Applicant) D Macfarlane (Third Defendant)