Kalgovas v Iliopoulos [2022] NSWSC 70

Supreme Court New South Wales

Medium Neutral Citation: Kalgovas v Iliopoulos [2022] NSWSC 70 Hearing dates: 6-9 December 2021 Date of orders: 8 February 2022 Decision date: 08 February 2022 Jurisdiction: Equity Before: Darke J Decision: Plaintiffs succeed on negligence claim pursuant to s 177 of the Conveyancing Act. Mandatory injunctive relief to be granted in the first instance, with questions of assessment of damages or compensation deferred. Catchwords: NEGLIGENCE – duty not to reduce support for supported land – excavation works carried out near boundary with adjoining land – whether works reduced support provided to adjoining land – whether excavation works and steps taken to restore support to adjoining land were undertaken negligently – failure to install retaining wall on part of boundary – dry stone retaining wall installed along another part of boundary – wall not designed and appropriately constructed to cater for hydrostatic pressure and migration of soil – defendants' conduct held to be negligent and a breach of duty – breach of duty held to have caused damage to structures on adjoining land – mandatory injunctive relief to be granted to require defendants to carry out works to restore support to adjoining land – Conveyancing Act 1919 (NSW), s 177 LAND LAW – encroachment of buildings – dry stone retaining wall encroaches to a minor degree upon adjoining land – wall inadequate to maintain support for adjoining land – encroachment itself does not cause any substantial impediment or restriction upon use of adjoining land – inadequacies in wall able to be remedied by works that do not involve removal of wall – order sought for removal of wall in order to remove encroachment – large cost of removal and replacement of wall – held not appropriate in the circumstances to make order for removal of the wall – Encroachment of Buildings Act 1922 (NSW), s 3 Legislation Cited: Conveyancing Act 1919 (NSW), s 177 Local Government Act 1919 (NSW), Part 31 of Ordinance No 70 Encroachment of Buildings Act 1922 (NSW), s 3 Limitation Act 1969 (NSW), s 14 Civil Liability Act 2002 (NSW), ss 5B and 5D Cases Cited: Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738 Llavero v Shearer [2014] NSWSC 1336 Lord v McMahon [2015] NSWSC 1619 McIntosh v Morris [2021] NSWCA 225 Pantalone v Alaouie (1989) 18 NSWLR 119 Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118 Category: Principal judgment Parties: Joseph Kalgovas (First Plaintiff) Catherine Anne Kalgovas (Second Plaintiff) Bill Iliopoulos (First Defendant) Sophia Iliopoulos (Second Defendant) Representation: Counsel: Mr P Barham (Plaintiffs) Ms R Thrift (Defendants)