The case of Kalgovas v Iliopoulos [2022] NSWSC 70 concerns a dispute regarding excavation works carried out in the 1980s on land (No 20) owned by Mr and Mrs Iliopoulos (the defendants), in areas close to the boundary of adjoining land (No 18) owned by Mr and Mrs Kalgovas (the plaintiffs).
The plaintiffs commenced proceedings in 2015 when it became apparent that the excavation works, including a dry stone retaining wall constructed close to the boundary, reduced the support provided by No 20 to No 18. The plaintiffs relied on evidence from a geotechnical engineer, who agreed the retaining wall was “completely inadequate and defective”. The plaintiff claimed the defendants breached their duty under Section 177 of the Conveyancing Act 1919 (NSW) to not do anything on or in relation to No 20 that removes or reduces the support provided to No 18. The plaintiffs sought an injunction to order the defendants to remove the retaining wall and construct a replacement wall for the purpose of restoring support to No 18.
The Court found the wall was insufficient to perform a retaining function and the damage to No 18 was a result of this. This amounted to a breach of the duty under Section 177 of the Conveyancing Act 1919 (NSW), as the defendant’s failed to take reasonable precautions in the design and construction of the wall to ensure support to No 18 was not withdrawn or reduced.
Given the encroachment of the retaining wall upon No 18 was only minor and did not give rise to any substantial impediment or restriction upon the plaintiff’s use of land, the Court was not prepared to order its entire removal. The financial burden of doing so was unproportionate to the benefit that would arise from its elimination. Instead, the Court found the damage ought to be remedied by the undertaking of works to restore adequate support and assessment of the plaintiff’s damages was deferred until the requisite works were completed.
This case is significant, as it clarifies the rights of landowners to have their land supported by adjoining land and the duty to ensure this support is not withdrawn. The case also highlights neighbours can be liable for damage occasioned by withdrawal of support, even when becoming apparent 30 years later.