HANNA v RICHMOND PROPERTIES [1991] NSWCA 140

HANNA v RICHMOND PROPERTIES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 27 September 1991, 15 November 1991 [1991] NSWCA 140

COMMON LAW — REFERENCE UNDER PT72 — CONSTRUCTION LIST ADOPTION OF REPORT — NATURAL JUSTICE — VIEW — INSPECTION

Mahoney JA In or about September 1987, a project was commenced for the erection of a new building in Mona Road, Darling Point. That land adjoined an old building which the appellants owned in Darling Point Road, Darling Point. The work was done with the use, inter alia, of heavy machinery.

The appellants claim that what was done, and in particular what resulted from the use of that machinery, caused vibrations and, it may be, the compacting of the soil or sand forming the basis of their building. They brought proceedings for the damage which, they claim, has been caused to that building.

The appellants' claim was referred to a referee, Mr J I Muirhead. The referee concluded that it had not been shown that damage to the appellants' building had been caused by the relevant building work. The referee's conclusion has been confirmed by Giles J. The appellants have appealed to this Court.

The appellants' contention that the building work caused damage to their building was supported by detailed evidence from themselves and from occupants of the premises at the time and by evidence from two persons claiming expertise in building matters, Mr Sicari and Mr Moir.

The submission of Mr Hamilton QC, for the appellants, was to the effect that, having regard to what was done in the building work, it would be surprising if damage had not been caused and therefore it should be inferred that the damage in question was caused by what was here complained of. There is, I think, considerable force in what Mr Hamilton has submitted.