Habchy v Sammut [2024] NSWLEC 1079

Land and Environment Court New South Wales

Medium Neutral Citation: Habchy v Sammut [2024] NSWLEC 1079 Hearing dates: 12 February 2024 Date of orders: 27 February 2024 Decision date: 27 February 2024 Jurisdiction: Class 3 Before: O'Neill C Decision: The orders of the Court are: (1) Within 6 months of the date of these orders, or such later date as may be agreed between the parties, the applicant and the respondent are to have the failed retaining wall on their shared boundary (as depicted in the survey by Adam Clerke Surveyors PL dated 10 October 2023 as "brick wall" and "stone wall") demolished and reconstructed upon the following terms: (a) The replacement retaining wall is to be positioned along the shared boundary in approximately the same location as the existing retaining wall. (b) The replacement retaining wall is to be capable of supporting a dividing fence. (c) The parties are to obtain three quotes for each of the stages of demolition, engineering design and construction of a replacement retaining wall, and accept the most cost-efficient quote. (d) The parties are to equally contribute to the cost of the demolition of the existing retaining wall, the engineering design of a replacement retaining wall and the construction of that wall. (2) The exhibits, other than Exhibits 1 and 3, are returned. Catchwords: ENCROACHMENT OF BUILDINGS – retaining wall encroaching on applicant's land – retaining wall failing and should be removed – retaining wall benefits both landowners and should be reconstructed on the shared boundary Legislation Cited: Encroachment of Buildings Act 1922, ss 2, 3 Land and Environment Court Act 1979, ss 19, 34 Dividing Fences Act 1991 Cases Cited: Gabriel v Billett (No 2) [2023] NSWLEC 123 Category: Principal judgment Parties: Zahi Habchy (Applicant) Annette P Sammut (Respondent) Representation: Counsel: O Holpert (Agent)(Applicant) A Sammut (Self-represented)(Respondent) File Number(s): 2023/172339 Publication restriction: No