Event and Time
Event Description
This case concerns a dispute arising from excavation works conducted near the boundary between two residential properties in Kareela, New South Wales, during the 1980s. The plaintiffs, Mr. and Mrs. Kalgovas, owners of 18 Ingrid Road, allege that excavation and construction works on the defendants' property at 20 Ingrid Road, conducted under the supervision of Mr. Iliopoulos, compromised the structural support for their property, leading to damage.
Application and Claims
The plaintiffs initiated proceedings citing claims of:
- Negligence under section 177 of the Conveyancing Act 1919 (NSW).
- Breach of statutory duty under the Local Government Act 1919 (NSW).
- Relief under the Encroachment of Buildings Act 1922 (NSW).
- Trespass and nuisance.
The plaintiffs sought mandatory injunctive relief to compel the defendants to restore adequate support to their property, including the removal and replacement of a dry stone retaining wall that slightly encroaches onto their land.
Judicial Decisions
The court ruled in favor of the plaintiffs on the negligence claim, finding that the defendants acted negligently and breached their duty of care. Mandatory injunctive relief was granted, obligating the defendants to conduct works to restore proper support to the plaintiffs' property, while issues regarding damage assessments were deferred.
Dispute Points and Legal Basis
Dispute Points
- Plaintiffs' Claims:
- The excavation works reduced support from No 20 to No 18, causing structural damage. - The dry stone retaining wall’s failure to support was a significant issue. - Plaintiffs contended that the damage only became apparent in 2014, well after the works were performed.
- Defendants' Arguments:
- Denied negligence, asserting that the works were carried out competently by a knowledgeable supervisor. - Claimed the damage noted by the plaintiffs was due to inadequate construction of structures on No 18, not their actions. - Recognized minor encroachment of the wall, but argued against removal or major adjustments due to costs and the negligible impact on the plaintiffs’ property. - Asserted that the plaintiffs' claims were time-barred under the Limitation Act 1969 (NSW).