Background
Elisa Rayman owned a home in North Bondi adjoining property owned by Janet Brown. During redevelopment of Brown’s property, builder Scopeview Projects Pty Ltd used steel sheet piles as temporary shoring for excavation works. That method had been adopted despite an initial geotechnical engineer’s warning that sheet piling should not be used because vibrations could damage neighbouring properties.
Excessive vibrations from installing the sheet piles caused immediate structural and other damage to Rayman’s home, with some damage later worsening. Rayman sued Brown and Scopeview in negligence and under section 177 of the Conveyancing Act 1919 (NSW). After selling the property in 2025, she pursued damages based principally on its diminished value. Her claims against several project consultants and contractors had settled, but their responsibility remained relevant because Scopeview invoked the proportionate-liability regime.
The Court’s Holding
Ward P held that Brown and Scopeview breached their duties of care in relation to the decision to use sheet piling, and that Scopeview was also negligent in carrying out the excavation and shoring works. Brown’s contributory-negligence defence failed. The decision to use sheet piling also breached section 177 because it caused the removal of support from Rayman’s land, although that provision did not impose a non-delegable duty. A failure to notify Rayman about the works was an omission and therefore was not itself a breach of section 177.
The Court found the four other project participants identified by Scopeview—Meso Solutions, VMS Australia, In-ground Design & Consultants, and El Australia—to be concurrent wrongdoers, and fixed Scopeview’s proportionate responsibility at 15%. Rayman recovered $1.15 million for diminution in value and $14,782.20 for proven cosmetic repairs, but not the costs associated with selling and moving. Judgment was entered against Brown for $1,164,782.20 plus interest and against Scopeview for $174,717.33 plus interest, with costs to be determined on written submissions.
Key Takeaways
- An adjoining owner and builder may be liable where they approve and use an excavation method despite a known, significant risk of vibration damage to neighbouring land.
- Section 177 of the Conveyancing Act required reasonable care when removing support from adjoining land, but the Court held that the duty was not non-delegable and did not extend to a mere omission to give notice.
- A defendant invoking proportionate liability can have its exposure limited to its assessed share of responsibility, while another defendant that does not invoke the regime may remain liable for the full recoverable loss.
Why It Matters
The decision underscores the importance of acting on geotechnical warnings and carefully supervising temporary shoring choices in dense residential construction. Owners cannot necessarily avoid negligence liability by leaving project management to a spouse, builder, or specialist where the relevant conduct and knowledge are attributable to them.
It also illustrates the practical interaction between adjoining-land duties, proportionate liability, and damages. Diminution in value may be recoverable after a damaged property is sold, but sale-related expenses will not automatically qualify as consequential loss merely because the underlying damage influenced the owner’s commercial decision to sell.