Jukes v Larter [2012] NSWSC 369

Supreme Court New South Wales

Medium Neutral Citation: Jukes v Larter [2012] NSWSC 369 Hearing dates: 10 April 2012 Decision date: 11 April 2012 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Upon the Plaintiffs giving the usual undertaking as to damages and subject to order 2, the Defendants by themselves or agents are restrained from undertaking any excavation, whether by jackhammer or otherwise on the property at 8 The Circlet, Rathmines until further order save and except that the Defendants may undertake such excavation as certified by P. M. Engineering Pty Ltd ("P. M. Engineering") as is reasonably necessary to construct a retaining wall on that part of the excavation on the southern boundary of 8 The Circlet, Rathmines which as at 11 April 2012 is exposed; (2) In the event that the Defendants construct a retaining wall on that part of the excavation on the southern boundary of 8 The Circlet, Rathmines which as at 11 April 2012 is exposed then order 1 shall dissolve after the expiry of 7 days from the Defendants providing the Plaintiffs with certification by P. M. Engineering of its construction to a standard P. M. Engineering consider satisfactory. (3) Stand over proceedings to 23 May 2012 at 9.00 am before a Registrar. (4) There be liberty to apply on 24 hours notice. (5) Costs are reserved. Catchwords: INJUNCTIONS - excavation of Defendant's property - appreciable risk to Plaintiff's adjoining property - apprehended breach of duty of care - balance of convenience Legislation Cited: Civil Liability Act 2002 Conveyancing Act 1919 Supreme Court Act 1970 Cases Cited: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Piling v Prynew [2008] NSWSC 118 Category: Interlocutory applications Parties: Neville Vincent Jukes (First Plaintiff) Patricia Denise Jukes (Second Plaintiff) Colin Larter (First Defendant) Christine Larter (Second Defendant) Representation: Counsel: Mr G Laughton SC (First and Second Plaintiffs) Mr R Lovas (First and Second Defendants) Solicitors: Attwaters Solicitors (First and Second Plaintiffs) Kilmurray Lawyers(First and Second Defendants) File Number(s): 2012/00095041