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) Solicitors: Crisp Law (Plaintiffs/Respondents) Lazarus Legal Group (First Defendant/Applicant) McCabe Curwood Pty Ltd (Second Defendant) Kennedys (Third Defendant) File Number(s): SC 2019/170616 Judgment 1. The plaintiffs, Mr Gregory Cohen and Ms Mariela Sverdloff, own and occupy a residential property in Double Bay. 2. The first defendant ("the Club") owns an adjoining property. The Club engaged the second defendant ("the Builder") to construct a dual occupancy on the Club's land. The Builder engaged the third defendant ("the Piling Contractor") to carry out excavation and piling works ('the Piling Works"). 3. The plaintiffs allege that the Piling Works have removed support to their land and caused damage to their home. 4. The proceedings were commenced over two years ago, on 31 May 2019. They have had what the plaintiffs' counsel has accepted as being a "long and tortured history". [1] 5. The plaintiffs current Technology & Construction List Statement (the "Current List Statement") was filed on 11 June 2019. 6. By Notice of Motion filed on 26 February 2021 the plaintiffs sought leave to amend the Current List Statement. 7. On 26 March 2021 I dismissed that application. [2] 8. I said: "Those advising the plaintiffs should formulate a further List Statement which makes clear exactly what duty is said to be owed to them by each of the Club, Builder and Piling Contractor, the bases upon which those duties are alleged, the precise breaches of duty alleged and, in each case, the facts, matters and circumstances upon which the plaintiffs rely to make out those breaches of duty. All of those matters should be incorporated into a single document, being the List Statement itself. It should not be necessary for the defendants, or the Court, to search through requests for particulars and responses to those requests to understand exactly what it is the plaintiffs contend the Club, the Builder or the Piling Contractor did or did not do in breach of their alleged duties." [3] 1. I directed that if the plaintiffs wished further to amend the Current List Statement they should file and serve a notice of motion seeking leave to do so no later than 14 April 2021. 2. The plaintiffs did not do so. 3. On 11 May 2021, the Club filed a Notice of Motion seeking an order that the Current List Statement be struck out and that the proceedings be dismissed as against the Club. 4. On 11 June 2021, the plaintiffs, by their solicitor, circulated a "new Amended Technology & Construction List Statement" (the "Proposed List Statement"). 5. The plaintiffs have offered no explanation for the two-month delay in circulating that document nor for their failure to file a Notice of Motion seeking leave to amend the Current List Statement in accordance with the Proposed List Statement. 6. On the day allocated for hearing of the Club's Notice of Motion to strike out the Current List Statement, Mr Weinberger, who appeared for the plaintiffs, informed me that the plaintiffs no longer sought to propound the Current List Statement but, rather, sought only to propound the Proposed List Statement instead. 7. Argument before me proceeded upon that basis. 8. For convenience, and notwithstanding the fact that proceedings in this List are not commenced by Statement of Claim, I will refer to the contentions made in the Proposed List Statement as "pleadings". 9. In the Proposed List Statement, the case brought by the plaintiffs against the Club now relies only on an alleged breach of s 177 of the Conveyancing Act 1919 (NSW). 10. That section provides, relevantly: "(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). … (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." 1. The plaintiffs no longer press, as against the Club, the case hitherto made for breach of an alleged statutory duty to comply with certain conditions on which the Woollahra Municipal Council granted the Club development consent in relation to the works; nor for a breach of a common law duty of care. 2. The Proposed List Statement refers to the plaintiffs' property as the "Property" and the Club's property as the "Site". For clarity, I will refer to the "Plaintiffs' Property" and the "Club's Property" and substitute those expressions as appropriate. 3. The Proposed List Statement alleges that on 22 July 2016 the Club received advice from a geotechnical engineer that "the soil on the [Club's Property] is poorly compacted and very loose" and that, accordingly, "the installation of sheet piles using vibratory hammers on the [Club's Property] is inappropriate". [4] 4. The Proposed List Statement then alleges, under the heading "Work under the contracts": "5 Between about February 2019 and June 2019, the Builder carried out construction work under the Contract including piling works [on the Club's Property] by engaging the Piling Contractor and supervising the Piling Contractor's work referred to in paragraphs [6 and 7] [5] below 6 Between about February 2019 and June 2019 the Piling Contractor carried out construction work under the Subcontract including piling works at the Site pursuant to the Subcontract. 7 The piling works referred to in paragraphs 5 and 6 above were carried out by: (a) hammering steel beams into several piles using the bucket of an excavator which caused excessive vibrations on the [Club's Property] and to the [Plaintiffs'] Property; (b) failing to adopt a piling system which did not cause vibrations to the [Club's Property] and to the [Plaintiffs'] Property. 7A By reason of the matters set out in paragraph 7 above, support provided by the [Club's Property] to the [Plaintiffs'] Property was removed." 1. The Proposed List Statement then alleges the statutory duty of care created by s 177 of the Conveyancing Act and that: "8A The duty of care pursuant to s177 of the Conveyancing Act 1919 (NSW) … is a non-delegable duty within the meaning of s5Q of the Civil Liability Act 2002 (NSW)." 1. The Proposed List Statement then alleges, under the heading "Breach of statutory duty by the Club": "8B The Club breached its duty of care pursuant to s177 of the Conveyancing Act 1919 (NSW): (a) by reason of the matters set out in paragraph 7(a) above (in respect of which the Club had a non-delegable duty); and (b) by engaging the Builder to carry out piling works on terms which did not prohibit the Builder from using vibratory hammers (or a similar methodology) on the [Club's Property] and/or which did not require the Builder to carry out piling works adopting a system which did not cause vibrations to the [Club's Property] and to the [Plaintiffs'] Property." 1. The inquiry called for by s 177(2) is: 1. whether the defendant has done anything on or in relation to land; 2. if so, whether what the defendant did in fact removed support provided by that land to any other land; and 3. if so, whether the defendant exercised reasonable care in doing that particular thing. [6] The first alleged breach of the s 177 duty – that the Club is liable for the actions of the Piling Contractor – and that the work done by the Piling Contractor caused support provided by the Club's Property to the Plaintiffs' Property to be removed – C8 B(a) Non-delegable duty 1. The Club did not effect the Piling Works. The Piling Works were effected by the Piling Contractor, as subcontractor to the Builder. 2. The question thus arises as to whether the Club is responsible for those actions of the Piling Contractor. 3. The plaintiffs allege that the duty of care under s 177 is non-delegable "within the meaning of S 5Q of the Civil Liability Act 2002": see [24] above. 4. Mr Lazarus SC, who appeared with Mr Sheldon for the Club, submitted that the proposition that s 177 gives rise to a non-delegable duty is "highly controversial". 5. There is, however, authority for the proposition that the duty is non-delegable: see Llavero v Shearer. [7] 6. Mr Lazarus accepted that, for the purpose of a strike out application or an application to amend pleadings, I should proceed upon the basis that the proposition is arguable. 7. Section 5Q of the Civil Liability Act is in the following terms: "(1) The extent of liability in tort of a person (the defendant) for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task. (2) This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A." (Underlined emphasis added) 1. Section 5Q does not determine or define what duties are or are not non-delegable. Rather, it specifies the extent of that liability and confines it to liability ("as if the liability were … vicarious liability") for work done by a person to whom the party in question has "delegated or otherwise entrusted" the work in question. 2. The Proposed List Statement contains no allegation explaining how it could be said that the Club "delegated or otherwise entrusted" the Piling Works to the Piling Contractor, as opposed to the Builder. 3. To put that another way, the plaintiffs do not plead any facts that, if proved, would show that the Club "delegated or otherwise entrusted" the Piling Works to the Piling Contractor. 4. Rather, the plaintiffs simply plead that the Piling Contactor performed the Piling Works in a manner that caused "excessive vibrations" on the Club's Property and to the Plaintiffs' Property [8] and that the Club is thereby in breach of the statutory duty under s 177, [9] which duty is simply asserted to be non-delegable by reason of s 5Q. [10] 5. I cannot see how the plaintiffs could plead that the Club "delegated or otherwise entrusted" the Piling Works to the Piling Contractor. 6. As the plaintiffs plead, the Club "engaged the Builder … to carry out residential building work" on the Club's Property. [11] The Club thus "delegated or otherwise entrusted" that task, which ultimately included the Piling Works, to the Builder, not to the Piling Contractor. 7. It may be, as a matter of contract, and as alleged at C5 of the Proposed List Statement, that the Builder carried out that part of the construction works as involved the Piling Works "by engaging the Piling Contractor". 8. But that is not the question posed by s 5Q. Removal of support 1. The Club's duty of care under s 177 was not to "do" anything on or in relation to the Club's Property that removed support provided by the Club's Property to the Plaintiffs' Property. 2. By C8B(a) of the Proposed List Statement, the plaintiffs allege that a breach of s 177 by the Club arose by reason of the fact that the piling works were effected as set out in C7(a): "[H]ammering steel beams into several piles using the bucket of an excavator which caused excessive vibrations on the [Club's Property] and to the [Plaintiffs' Property]". 1. It is then alleged in C7A that by reason of these matters "support provided by the [Club's Property] to the [Plaintiffs' Property] was removed". 2. The Proposed List Statement does not allege facts that, if proved, would show that the hammering of the steel beams into the piles using the bucket of an excavator, and the consequent excessive vibration "on" the Club's Property and "to" the Plaintiffs' Property, has led to the removal of support by the Club's Property to the Plaintiffs' Property. 3. The plaintiffs simply assert that the vibrations caused removal of support to their land but do not plead how this could be so. 4. Mr Weinberger submitted that this was a matter for evidence and that, in due course, particulars of the allegation in C7A could be provided. I do not agree. The plaintiffs should have pleaded these matters within the Proposed List Statement. That was the precise point of my observations set out at [8] above. 5. I find that alone to be a reason to refuse leave to allow this part of the Proposed List Statement. 6. Mr Lazarus submitted that, in any event, the evidence served by the plaintiffs from their geotechnical expert, Mr DeSilva, shows that, as a matter of fact, the plaintiffs will not be able to prove that the vibrations allegedly caused by the Piling Works caused such removal of support. 7. Mr Weinberger ultimately accepted that such particulars as the plaintiffs would be able to give in relation to C7A would arise from Mr de Silva's report. Mr de Silva's report 1. Mr de Silva opined that the Piling Contractor did not carry out the Piling Works with reasonable care and skill and that the Piling Works caused damage to the Plaintiffs' Property. 2. Mr de Silva gave a number of reasons for that conclusion. 3. The only reason relevant to the claim that the plaintiffs make against the Club under s 177 is that the Piling Contractors: "[U]sed a hammering technique on the reinforcement beams which caused excessive vibrations to the [Plaintiffs' Property] and caused movement of the foundations soils at the [Plaintiffs' Property]". [12] 1. Mr de Silva referred to a visit he made to the Plaintiffs' Property on 8 May 2019 and reported: "The [plaintiffs] informed me that they felt vibration under their feet when they were inside their house. Based on my experience, it is highly likely that those vibrations felt by the [plaintiffs] [were] caused [by a] decrease in volume in loose sand at the [Plaintiffs' Property]. When the volume decreases, the level of sand surface goes down resulting in subsidence of the loose sands at the [Plaintiffs' Property]. It is also highly likely that, vibration caused the brick walls and other structural members such as timber frame joists and wall claddings to crack and misalign… I observed the damage to the [Plaintiffs' Property] … which is likely due to the excessive vibration caused by the hammering of the piles … and the fact that there was an unsupported/insufficiently supported excavated trench along the boundary [between the Club's property and the Plaintiffs' Property]". [13] 1. The plaintiffs no longer rely on any allegation about an "unsupported" or "insufficiently supported" excavation trench along the boundary of the two properties. As against the Club, the plaintiffs now rely only on the "excessive vibrations" said to have been generated by the Piling Works. [14] 2. Later Mr de Silva expressed the opinion that the damage to the Plaintiffs' Property "was mostly caused by vibration" and also by the (no longer relied on) excavation trench. 3. Later Mr de Silva said: "I agree with conclusions drawn by [the Club's geotechnical engineer] that hammering of reinforcement beams caused excessive vibration resulting in subsidence of the footing at the north west corner of the [Plaintiffs' Property] causing damage to the walls and floors. Based on my 20 years of experience as a geotechnical engineer in Sydney, it is those vibrations together with the [no longer relied on] unsupported excavation and partially supported excavation … which caused the movement in the ground conditions and hence the damage to the structure at the [Plaintiffs' Property]". [15] 1. And: "It is my opinion that [the Club's geotechnical engineer] is correct because hammering steel beams into CFA piles is highly likely to give rise to excessive vibrations which penetrate the foundation soils and cause movement and hence subsidence in the foundation soils. The subsidence in the foundation soils caused a loss of support at the [Plaintiffs' Property] as a void if formed between the footing and foundation". [16] 1. It is clear from the context of these remarks that Mr de Silva is here referring to the "foundation soils" of the Plaintiff's Property, not of the Club's Property. [17] 2. Later, Mr de Silva did express the opinion that: " … by carrying out the piling works at the [Club's Property], the piling contractor caused a loss of support for the [Plaintiffs' Property]". [18] 1. But Mr de Silva said that the support "was lost when there was the excavation of the trenches for the guide wall" [19] ; the matter no longer relied on by the plaintiffs. 2. The only reference Mr de Silva made to vibrations being a factor was "failure to properly monitor for vibrations". [20] 3. Thus, the evidence that the plaintiffs propose to adduce from Mr de Silva is not, as would be required to make out a breach of the s 177 duty, to the effect that the Piling Works had the effect that the support provided to the Plaintiffs' Property by the Club's Property was removed. Rather, the evidence is that the vibrations caused by the Piling Work on the Club's Property themselves caused damage to the Plaintiffs' Property. 4. I find this a further reason to decline to grant leave to allow this part of the Proposed List Statement. The second alleged breach of the s 177 duty – that the Club engaged the Builder to carry out the Piling Works on terms which did not prohibit the Builder from using vibratory hammers on the Club's Property and/or did not require the Builder to carry out the Piling Works adopting a system that did not cause vibrations to the Club's Property and to the Plaintiffs' Property – C8B(b) 1. The duty under s 177 is to not "do" anything "on or in relation to" "supporting land" that removes the support provided by the supporting land to the "supported land". 2. There is no question here that the Club, as opposed to the Builder or the Piling Contractor, itself did anything "on" the Club's Property that removed support to the Plaintiffs' Property. 3. The question is whether the Club did something "in relation to" the Club's Property that removed support to the Plaintiffs' Property. 4. The section is directed to acts, and not omissions. [21] 5. But the allegation at C8B(b) of the Proposed List Statement is, in substance, that the Club omitted to do something; namely, to include in its contract with the Builder terms which prohibited the Builder from using vibratory hammers or that required the Builder to carry out the Piling Works without causing vibrations to the Club's Property and the Plaintiffs' Property. 6. In my opinion, the failure by the Club to contract with the Builder on these terms cannot amount to a breach of s 177. 7. Even if the allegation at C8B(b) could be seen as an allegation that the Club did something, namely to enter into a contract with the Builder that did not have the specified terms, the Proposed List Statement does not plead, and I cannot see how it could be suggested, that that act of entry into such a contract has caused the loss of support of which the plaintiffs' complain. Leave to amend in accordance with the Proposed List Statement should be refused 1. For those reasons, I decline to grant the plaintiffs leave to file the Proposed List Statement insofar as it affects the Club. Should the proceedings be dismissed? 1. As the plaintiffs no longer seek to propound the Current List Statement against the Club, I propose now to dismiss the proceedings against the Club. 2. The proceedings have been on foot for over two years. The plaintiffs have had three opportunities to plead a case against the Club. They do not seek to propound the first pleading and have now twice been refused leave to propound alternatives. 3. The Club is a not for profit bowling club that is not in a strong financial position. It has incurred approximately $400,000 in legal costs during these proceedings. The costs of this litigation must be causing significant financial stress to the Club. 4. The plaintiffs' position must of course also be considered, but they are able to continue this litigation against the Builder and the Piling Contractor. Neither has sought to strike out the Current List Statement. Indeed, the Piling Contractor has indicated that, provided I did not disallow any parts of the Proposed List Statement which affect the plaintiffs' case against it, it consented to the filing of the Proposed List Statement. 5. I order that the proceedings be dismissed, so far as they concern the Club, with costs. 6. The Club has foreshadowed an application for indemnity costs. The parties should confer and agree on a timetable for written submissions on that question. I will deal with the issue on the papers, unless either party seeks a hearing. 7. The matter will proceed against the Builder and the Piling Contractor, and for that purpose, I list the matter for directions on 30 July 2021. ********** Endnotes 1. Cohen & Anor v Double Bay Bowling Club & Ors [2021] NSWSC 295 at [4] 2. Cohen & Anor v Double Bay Bowling Club & Ors [2021] NSWSC 295. 3. At [37] and [38] 4. At 2C(b) and (c). 5. In fact, the Proposed List Statement refers to "paragraphs 5A and 5B below: it is agreed this is a typographical error. 6. Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [209] (Campbell JA, Basten JA and Sackar J agreeing). 7. [2014] NSWSC 1336 at [45] and [104] (Young AJA). 8. List Statement C7. 9. List Statement C8B(a). 10. List Statement C8A. 11. List Statement C3. 12. At 45.1(c). 13. At 45.4 and 45.5. 14. See Proposed List Statement C7(a). 15. At 45.10. 16. At 46.3. 17. See his earlier statement in 46.3 that "hammering of steel piles carr[ies] a high risk due to the fact that hammering cause[s] vibration which likely cause[s] damage to nearby structures, particularly those supported on loose sand foundation such as [the Plaintiffs' Property]". 18. At 47.1. 19. At 47.3. 20. At 47.4(d). 21. Lym International Pty Ltd v Marcolongo at [209] and Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118 at [63] and [64] (Macready AsJ). Amendments 17 February 2022 - Case name on cover sheet corrected to (No 4) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2022