Kalantzis v Brown; Brown v Kalantzis; Kalantzis v Brown; Brown v Kalantzis

1. [1]

   WARD P: I agree with Adamson JA.

2. [2]

   MITCHELMORE JA: I agree with Adamson JA.

3. [3]

   ADAMSON JA: Edmund Brown and his partner, Irena Saric, (the plaintiffs) brought proceedings in the Equity Division of the Supreme Court (the Court below) for damages for negligence and trespass, arising from the collapse of the driveway on Mr Brown’s property in Gosford (Lot 71), where they both lived. They alleged that Lot 71 was damaged as a result of excavation conducted by Nutek Constructions Pty Ltd (the builder) on behalf of Etna Developments Pty Ltd (the developer) for the purposes of building an apartment block with an underground carpark on Lot 73, the land next door (the development site) and that, in addition, they were entitled to general damages for pain and suffering.

4. [4]

   In addition to suing the builder and the developer, the plaintiffs also sued:

   1. (1)

      Fotis Kalantzis (Frank), the builder’s sole legal director;

   2. (2)

      Nicholas Kalantzis (Nick) and Konstadinos Kalantzis (Kon), as the builder’s two alleged shadow directors; and

   3. (3)

      Alexander Kalantzis (Alex), whom the builder had engaged as a subcontractor and was alleged to have engaged in excavation work on the development site.

5. [5]

   The individual members of the Kalantzis family are referred to by their first names in order to distinguish more readily between them. Kon and Nick are brothers. Kon is the father of both Frank and Alex and Nick is their uncle. Lot 71 and the development site were located on the southern side of a street in Gosford, which ran in a west-east direction. Lot 71 was a battle axe block. Its driveway travelled from the street frontage in a southerly direction to the remainder of the block, where the plaintiffs’ home was situated. The driveway on Lot 71 abutted the western boundary of the development site.

6. [6]

   As a consequence of excavation works carried out on the development site, the driveway of Lot 71 sank into the earth, making Mr Brown’s motor vehicle and a couple of motor bikes inaccessible and depriving the plaintiffs of their street access.

7. [7]

   In substance, the plaintiffs’ case, which was accepted by the primary judge, was that, in the course of conducting excavation works on the development site and over the boundary onto Lot 71, the defendants were negligent in that they failed to take reasonable care to support the soil under Lot 71 and trespassed on Lot 71.

8. [8]

   Mr Brown claimed damages, in negligence and trespass, for restitution of Lot 71 or, in the alternative, the diminution in its value, as well as general damages for trespass. Ms Saric claimed general damages for trespass. The plaintiffs succeeded in the Court below. Both Alex and Nick have appealed against the orders made against them. Neither Frank nor Kon took an active part in the appeal, to which they were parties.

9. [9]

   In the Court below and in this Court, Mr Rogers appeared for Mr Brown and Ms Saric. Nick was the only one of the defendants to be represented in the Court below. He appeared for himself in this Court, following the Court’s refusal of his application for an adjournment on the morning of the hearing. Mr Corsaro SC appeared for Alex in this Court.

10. [10]

    The parties in the Court below and in this Court are identified in the table below.

11. [11]

    The proceedings in the Court below were heard on 10-14 March 2025. In her reasons for judgment published on 30 April 2025, Rees J (the primary judge) found the developer, and each of Frank, Nick, Kon and Alex liable to Mr Brown and Ms Saric. Her Honour made orders, including the following:

12. [12]

    These orders were consequential on the primary judge’s findings (set out in more detail below) that:

    1. (1)

       the developer and each of Frank, Nick, Alex and Kon were liable in negligence and trespass to Mr Brown, as the owner of Lot 71;

    2. (2)

       Mr Brown was entitled to damages assessed by reference to the rectification cost of Lot 71, together with general damages of $50,000, amounting to a total of $2,172,232;

    3. (3)

       the developer and each of Frank, Nick, Alex and Kon were liable in trespass to Ms Saric, as an occupier of Lot 71;

    4. (4)

       Ms Saric was entitled to general damages in trespass in the amount of $50,000;

    5. (5)

       the claims in trespass and negligence were apportionable because each arose from a failure to take reasonable care within the meaning of s 34(1)(a) of the Civil Liability Act 2002 (NSW);

    6. (6)

       Kon, the only defendant (other than the builder against which proceedings were stayed) alleged in the individual defendants’ joint defence to be a concurrent wrongdoer within the meaning of Pt 4 of the Civil Liability Act, was found to be a concurrent wrongdoer and liable for 30% of the total damages;

    7. (7)

       accordingly, Nick, Frank and Alex were jointly and severally liable to the plaintiffs for 70% of the damages to which they were entitled, being $1,520,562.40 for Mr Brown, and $35,000 for Ms Saric; and

    8. (8)

       Kon was liable for 30% of the damages to which the plaintiffs were entitled, being $651,669.60 for Mr Brown, and $15,000 for Ms Saric.

13. [13]

    Alex appeals on the following grounds:

14. [14]

    Alex’s appeal was properly constituted in that he was the named appellant and all of the other parties to the proceedings in the Court below were joined as respondents to the appeal

15. [15]

    Nick appeals on the following grounds:

16. [16]

    Nick’s appeal was not properly constituted in that the only respondents to the appeal were Mr Brown and Ms Saric, although he sought orders affecting other persons who had been parties in the Court below. As I consider that Nick’s appeal ought be dismissed, it is not necessary to address the question of parties or the constitution of the appeal further.

17. [17]

    Mr Brown cross-appealed in both Alex’s and Nick’s appeals on a single ground, alleging that the primary judge erred in finding that the claim in trespass was apportionable.

18. [18]

    In his cross-appeal in Alex’s appeal proceedings, Mr Brown joined only one respondent, Alex. In his cross-appeal in Nick’s appeal proceedings, Mr Brown joined only one respondent, Nick.

19. [19]

    This forensic choice has an impact on the orders which the Court can make. No order can be made which benefits Ms Saric as she is not named as a cross-appellant. Because of the requirements of procedural fairness, no order could be made in either cross-appeal against Frank or Kon unless they had first been joined as parties to the cross-appeal. The Court is, understandably, unaware of the financial position of any of the parties or putative parties. This factor may have informed Mr Brown’s choice not to join Frank or Kon as parties to the cross-appeal. It is not fruitful to speculate as to the reason why they were not joined since Mr Brown is bound by this forensic choice. Nor is it any answer to the limitations on the orders which the Court can make that Frank and Kon were served with Alex’s appeal and chose not to participate. Each may reasonably have adjudged that they would not be adversely affected by the appeal or might not have wished to engage in adversarial litigation against a family member. That they were joined to Alex’s appeal does not make them parties to Mr Brown’s cross-appeal, which had the potential, if upheld, to make each liable for the whole amount of Mr Brown’s damages. This matter will be revisited when Mr Brown’s cross-appeal is addressed later in these reasons.

The procedural background

1. [20]

   As the proceedings in the Court below were in the Technology and Construction List, the pleadings took the form of a List Statement and a List Response.

2. [21]

   The plaintiffs’ claims in negligence and trespass were contained in the particulars to paragraph 3 of their Amended List Statement filed on 30 June 2023, which alleged as follows:

3. [22]

   No complaint was made as to the form of the List Statement or the pleadings in negligence or trespass. Mr Rogers opened the case on the basis that trespass is an intentional tort which, accordingly, falls outside the Civil Liability Act and is therefore not an apportionable claim. He also closed the case on that basis:

4. [23]

   Mr Brown alleged and particularised his loss in paragraph 4 of his Amended List Statement as follows:

5. [24]

   A List Response was filed on 20 December 2023 by the solicitor who then acted on behalf of each of Frank, Nick, Kon and Alex. Their List Response to this paragraph denied that Mr Brown had suffered loss and damage as alleged or at all.

6. [25]

   The paragraphs on apportionment in the individual defendants’ List Response alleged as follows:

7. [26]

   On 19 July 2024, the matter was listed for hearing to commence on 10 March 2025 with an estimate of 5 days. On 21 January 2025, the solicitor who had been acting for the four individual defendants, filed a notice of intention to cease to act for Frank, Kon and Alex. On 21 February 2025, Stevenson J gave leave to the solicitor to file a notice of ceasing to act for Frank, Kon and Alex. However, the solicitor continued to act for Nick, at least until after publication of the primary judge’s reasons on 30 April 2025. As a result of this development, Frank, Kon and Alex appeared on their own behalf at the hearing in the Court below. No amendment was made to the List Response which had been filed by their solicitor when she was acting on behalf of all of them.

The primary judge’s findings

1. [27]

   The primary judge found that Frank was the sole legal director of the builder; Nick actually ran the company; Kon ran the building site; and Alex worked on-site as a contractor through his own company, All Works Civil Contracting Pty Ltd (All Works) (J[3]). Her Honour found that Frank was a “puppet” director of the builder, which was run by both Kon and Nick, who were de facto directors and held to be liable as such. Her Honour made adverse findings of credit against Kon and Nick and said that she did not accept their evidence unless against interest or corroborated (J[8]-[9]). The primary judge found Frank to be “straightforward” (J[7]). In respect of Alex’s evidence, the primary judge said (J[10]):

2. [28]

   The primary judge accepted the evidence of Mr Brown and Ms Saric (which included their daily observations of what was being done on the development site and by whom and any encroachments on Lot 71) as well as the evidence of the experts: Geoffrey Ball (called by the plaintiffs) and Daniel Phillips (called by Nick). There was a conflict in the evidence given at the trial between the plaintiffs’ evidence of what they saw Nick, Frank, Kon and Alex doing and the defendants’ evidence of what they were doing. There were also internal inconsistencies between the evidence of Nick, Frank, Kon and Alex as to what each was doing and what the others were doing.

3. [29]

   The primary judge found that, in May 2016, the developer obtained development consent to construct 55 apartments (J[35]). Her Honour found (J[35]):

4. [30]

   The conditions of the development consent included the following (J[38]):

5. [31]

   The primary judge found that the original advice obtained from a geotechnical engineer was that “contiguous flight auger (CFA) piles [be installed] along the wall to retain the driveway west of the subject site prior to the proposed excavation which is approximately 10m in depth” (J[28]). Mr Phillips, the geotechnical engineer called by the plaintiffs, whose evidence was accepted by the primary judge, explained (J[29]):

6. [32]

   The primary judge found that a supplementary geotechnical report had been prepared and that the developer was permitted to construct the works in accordance with the recommendations in the supplementary report (J[45]). Her Honour said further (J[46]):

7. [33]

   The primary judge found that the existing drainage sump at the rear of the development site was filled in (J[48]) and that Kon broke up a stormwater drain that collected water from the Rumbalara Reserve (to the south of Lot 71 and the development site) (J[50]). The primary judge also found that “during these early works, no retaining was built, nor site drainage constructed” (J[52]).

8. [34]

   The primary judge found (J[48]):

9. [35]

   Her Honour also found that Kon undertook a scraping exercise to prepare for building a retaining wall on the boundary between the development site and Lot 71. In the course of this task, he discovered a stockpile of tyres which had been buried underground (J[53] and [55]). Kon stopped work and referred the matter to Nick, who said that he needed to inform the developer. The developer directed Kon to suspend the work (J[55]). The primary judge found (J[57]):

10. [36]

    As to who did the preliminary clearing and excavation on the development site, the primary judge found:

11. [37]

    The primary judge rejected the defendants’ suggestion that the development site was excavated by another contractor before they came onto the site and said (J[64]):

12. [38]

    Ultimately in May 2020, the developer and the builder signed a building contract whereby the builder was to construct the development for $18 million (J[68]). Nick conducted the negotiations on behalf of the builder although the contract was signed by Frank, as the builder’s sole director (J[68]). The primary judge found that the builder was provided with the conditions of the development approval and the construction certificate when it undertook the initial site clearing and excavation in 2017 and that the builder had the geotechnical reports before the contract was signed in May 2020 (J[77]).

13. [39]

    The primary judge preferred the evidence of the expert engineers to that of the defendants. Her Honour said:

14. [40]

    Throughout 2020, cracks in the plaintiffs’ driveway appeared and the rainwater, which had previously run down the drain, was running freely past the boundary of Lot 71 (J[80]). The plaintiffs complained to Gosford City Council (the council), to no avail.

15. [41]

    In January 2021, work recommenced on the development site (J[83]). Excavation work was being conducted at the boundary with Lot 71. Alex said that All Works entered into an oral contract with the builder to remove material from the development site, which was said to involve hammering rock in the middle of the site and removing it (J[83]).

16. [42]

    The primary judge found (J[86]) that, on 11 February 2021, Mr Rahimi, the developer’s original engineer, issued a “Structural Statement”, through Structural Holdings Pty Ltd (alleged, but not found, to be a concurrent wrongdoer) which said as follows:

17. [43]

    Her Honour noted that the addressee of the statement was unidentified and the basis for the statement, whether instructions or information, did not appear from the evidence (J[87]). Her Honour accepted Mr Ball’s evidence that: “[the statement would] be out of date virtually the next day” (J[91]).

18. [44]

    The primary judge found (J[92]):

19. [45]

    In March 2021, Kon offered to purchase Lot 71 from Mr Brown for $670,000 (J[93]). Although Mr Brown was amenable to selling, no transfer ever eventuated.

20. [46]

    On 19 March 2021, Mr Brown noticed that the power pole, which was on the driveway on Lot 71 near the boundary with the development site, was looking precarious as the soil around the base of the pole had been washed away (J[94]-[95]). He sent Kon a text with photographs and asked him to “send someone to shore it up” (J[96]). Her Honour found (J[97]):

21. [47]

    The primary judge addressed what the movement of the power pole must have indicated to Nick and Kon (J[102]):

22. [48]

    The primary judge found (J[107]):

23. [49]

    The plaintiffs provided a copy of this report to the builder (J[109]) but no satisfactory response was received (J[109]). The plaintiffs retained experts to advise them, including Mr Ball, who visited Lot 71 on 6 June 2021 and took photographs of what he saw (J[110]). Her Honour found:

24. [50]

    The finding in J[111] is relevant to the plaintiffs’ claim in trespass.

25. [51]

    Mr Ball retained a geotechnical engineer, David Mehan, to conduct a “desk-top” assessment of the stability of the site and also attended the site on 27 July 2021 (J[112]). The primary judge extracted the following summary from his report (J[112]):

26. [52]

    Her Honour also accepted Mr Mehan’s evidence that if he had known that there were tyres in the soil he may have rated the risk as “very high” rather than “high to very high” because buried tyres made the risk worse (J[113]). Her Honour also said (J[114]):

27. [53]

    The plaintiffs wrote to the builder, demanding that remedial works be undertaken within seven days. Although Nick denied receiving the letter, the primary judge found that it was probably received (J[117]). The primary judge found (J[123]) that:

28. [54]

    On 23 September 2021, work began on a retaining wall but it was done at the street frontage of the site rather than near the plaintiffs’ house. Kon was doing this work. However, on 25 September 2021, the plaintiffs took a video of “Alex excavating below [them]” (J[126]). The primary judge also accepted Mr Brown’s evidence that he saw Alex digging up rocks and depositing them in a truck and that this was not the only occasion on which he saw Alex doing digging work at or near the boundary (J[127]).

29. [55]

    The primary judge reproduced a still photo taken from the plaintiffs’ video of 25 September 2021 in the reasons for judgment (J[126]). It depicts an excavator immediately below the position of the camera, close to the fence (which Nick admitted was on Lot 71 (J[203])) and on the other side of the power pole (which was also on Lot 71).

30. [56]

    On 26 November 2021, following heavy rain, there was “significant ground movement” on the site. Mr Ball confirmed on inspection that “significant landslip had occurred, and that further landslip was likely in view of forecasted rain” (J[130]). Another significant landslip occurred on 28 November 2021, which resulted in the plaintiffs’ driveway falling 7m onto the development site. Mr Brown’s car and two motorbikes were parked in the driveway and remained trapped there (J[132]).

31. [57]

    When addressing the cause of the collapse of the plaintiffs’ driveway, the primary judge found:

32. [58]

    The primary judge then addressed the question of who did the excavation. Her Honour accepted the plaintiffs’ evidence that they had only ever seen Kon, Nick, Frank and Alex on the site and that they had seen each of them working on excavators and that sometimes up to three excavators were working in parallel at the same time (J[155]-[156]). Her Honour reviewed the evidence and found that each of the four individual defendants had used an excavator to perform excavation work at or near the boundary between Lot 71 and the development site: J[160]-[170]. The findings with respect to Nick included the following:

33. [59]

    The primary judge’s reasoning for finding that Alex used an excavator, including across the boundary and encroaching on the plaintiffs’ land appears from the following passage:

34. [60]

    In the Court below, as the primary judge summarised at J[195]-[197], the plaintiffs contended that the developer, the builder and each of Frank, Nick, Kon and Alex removed soil near the boundary and subsoil from Lot 71 and also excavated over the boundary into Lot 71. Each of the defendants denied this contention.

35. [61]

    The primary judge said:

36. [62]

    The primary judge referred to the unchallenged evidence of Mr Armstrong whose surveys noted that the excavations on the development site went beyond the boundary and onto Lot 71 and that these encroachments, as at 24 June 2021 (before the major subsidence) went “some 2 metres in places” (J[202]). On this basis, the primary judge was satisfied that the builder encroached onto Lot 71. Her Honour turned to address whether the evidence established that each of Nick, Alex, Kon and Frank had performed excavations which encroached onto Lot 71. Her Honour found at J[208]:

37. [63]

    The plaintiffs’ case in negligence rested on s 177(2) of the Conveyancing Act 1919 (NSW) which relevantly provides:

38. [64]

    The primary judge found that the developer (by commissioning the builder), the builder and the four individual defendants “did things on the supporting land [the development site]” by excavating it and that this had the effect of removing support to Lot 71 (J[222]-[224]). Her Honour found (J[225]):

39. [65]

    As to causation, her Honour found (J[228]):

40. [66]

    The primary judge accepted that Alex was not liable for the tortious actions of the builder but found Alex liable in negligence in his personal capacity. Her Honour found, on the balance of probabilities, that Alex “removed the support for the plaintiffs’ land, including near the driveway where there had been an existing landslip” (J[229]). Her Honour found that Alex was probably not aware of the geotechnical reports or the conditions of the development approval. However, her Honour found Alex to be liable on the basis that he had been working on the development site since January 2021 and must have been aware of the slump of the power pole. Her Honour found (J[232]):

41. [67]

    The primary judge summarised the relevant principles which apply to make directors (legal or shadow) of a company liable for the torts of the company, as follows:

42. [68]

    As to the liability of the remaining individual directors, her Honour found:

43. [69]

    The evidence adduced by the plaintiffs as to value was summarised as follows (J[257]):

44. [70]

    The primary judge addressed the question whether Mr Brown was entitled to the diminution in the value of Lot 71 of $745,000 (being the difference between the value of the property but for the tort of $820,000 and its current value of $75,000) or the cost of rectifying the house and the land ($2,122,232). Her Honour said:

45. [71]

    The primary judge assessed the quantum of general damages in trespass to which each of the plaintiffs was entitled at $50,000 (J[274]).

46. [72]

    The primary judge noted Mr Rogers’ submission as to apportionment with respect to the claim in trespass and said (J[278]):

47. [73]

    Her Honour found that the claim in trespass was apportionable on the following basis:

48. [74]

    The primary judge noted at J[275] that a number of “concurrent wrongdoers” had been identified in the List Response “of which only Structural Holdings Pty Ltd was pressed”. Her Honour did not accept that Structural Holdings Pty Ltd was a concurrent wrongdoer and, accordingly, found that the claim against it failed (J[284]). Her Honour also addressed the situation of Kon, who had been identified as a concurrent wrongdoer in the pleading (at paragraph 11(c) of the List Response), as follows (J[277]):

49. [75]

    After referring to s 35(1) of the Civil Liability Act and the relevant authorities, the primary judge determined the question of apportionment as between Kon and the other individual defendants as follows:

Alex’s appeal

1. [76]

   In substance, the complaint in this ground is that the primary judge did not accept Alex’s evidence that he did not do excavation work and that he did not do work on or near the boundary between Lot 71 and the development site. This evidence formed the basis of Alex’s case in the Court below. Alex specifically denied using any excavation machinery to do any excavation. He said that the only work he did near the boundary was work performed after the collapse of the driveway in November 2021 to shore up the subsidence with rock from elsewhere on the site. He was adamant that he did not use the excavator and would not have done so if anyone had asked him to do it. He explained: “I don’t dig”.

2. [77]

   In the Court below, Mr Brown identified Alex as the person operating the machine depicted in the still photograph from the video taken on 25 September 2021. Alex put to Mr Brown in cross-examination that he was not the operator of the machine.

3. [78]

   In cross-examination, Alex said that his role on the development site was as “a truck driver and … a hammer operator [who] was hammering the rock in the middle of the site”. He denied using excavation machinery to do any excavation on the development site. He agreed that he came onto the development site in January 2021. He said that he only took direction from Kon.

4. [79]

   In final oral submissions, Alex, who appeared for himself, said:

5. [80]

   In his final written submissions in the Court below, Alex said, in part:

6. [81]

   The primary judge rejected Alex’s evidence about the type and location of his work. Alex’s evidence was inconsistent with the evidence of the plaintiffs, Mr Ball and the other defendants.

7. [82]

   Mr Corsaro submitted in this Court, in writing and orally, that, if, contrary to Alex’s evidence, he had been operating an excavator on the western boundary (between Lot 71 and the development site) it had not been shown that Alex used the excavator to remove uncontrolled fill at the boundary in a way which withdrew support from the plaintiffs’ land. Mr Corsaro further submitted that, if Alex had been rock-breaking and loading close to the boundary, this would not have caused the subsidence occasioned by the loss of support for the soil on Lot 71 and that, on this basis, Alex ought not to have been found liable to the plaintiffs.

8. [83]

   Not only was this case not run in the Court below, but it did not fall within any of Alex’s grounds of appeal or indeed with Alex’s case, which was that he did not operate the machine depicted in the photograph of 25 September 2021. In addition, no notice pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.36(2) has been filed. Such a notice is a significant requirement in an appeal. Alex’s submission in this Court falls within the prohibition against raising new points on appeal where, if the point had been taken at trial, further evidence might have been led or it might have been capable of explanation or qualification: Coulton v Holcombe (1986) 162 CLR 1 at 6-8; [1986] HCA 33; Water Board v Moustakas (1988) 180 CLR 491 at 197; [1988] HCA 12. Accordingly, this Court ought not entertain this new case on appeal.

9. [84]

   The primary judge’s reasons for making the relevant findings were set out in detail and have been extracted and summarised above. I discern no error in her Honour’s fact-finding. The plaintiffs observed the development site and the activity of the individual defendants over a period of years. Their identification of individual defendants was assisted by prolonged and anxious observation as well as the generational difference between Kon and Nick, who were the older brothers, and the next generation, being Kon’s sons, Frank and Alex. Further, the defendants identified themselves and each other to the plaintiffs, as well as to Mr Ball, who came onto the site less frequently but at important times. In addition, the plaintiffs took a video of Alex excavating “below them” on 25 September 2021. Ms Saric’s unequivocal evidence was that on the day of the “main collapse”, it was Alex above whom she was standing. Alex did not cross-examine Ms Saric at all. As referred to above, Alex cross-examined Mr Brown about a photograph taken on 25 September 2021 which Mr Brown said depicted Alex operating an excavator near his boundary.

10. [85]

    Having regard to this evidence from various sources, including from the other individual defendants themselves, the primary judge was both entitled, and correct, to reject Alex’s evidence that he had only done work in the middle or on the other side of the development site and to prefer the evidence of the plaintiffs and Mr Ball, which was supported by the photographic evidence, the video evidence and the evidence of statements made by Kon, Nick and Frank, which identified Alex.

11. [86]

    For these reasons, ground 1 has not been made out.

12. [87]

    The only basis on which Alex challenges the primary judge’s finding of material contribution is the same basis as is sought to be impugned in ground 1. For the reasons given in respect of ground 1, ground 2 has not been made out. More general issues of causation are raised in ground 3, which is addressed below.

13. [88]

    Mr Corsaro identified the “logical steps” in the primary judge’s reasoning that Alex had caused the alleged harm as follows: first, that the excavation of the western boundary caused the collapse; second, that Alex personally undertook excavation at the boundary; and, third, that liability for the damage followed from Alex’s participation in excavation activities that caused the collapse. He submitted that the primary judge was in error in treating the temporal sequence of rock removal followed by a collapse as supporting a causal inference when there was no expert evidence to establish the mechanism by which the collapse could have occurred.

14. [89]

    The primary judge’s findings on causation implicating Alex were not only open but correct. Alex had no alternative case at trial. His only case was that he had not done any work close to the boundary prior to the major collapse of the driveway. Although her Honour did not express her findings by reference to the phrase the “sequence of events”, this was plainly the basis of her Honour’s reasoning. Alex had removed supporting soil at a time proximate to the collapse, from which it can be inferred that the removal of soil at the location and at that time, caused or contributed to the collapse. Such reasoning did not require expert evidence to support it: Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 (Forst) at 563-564; [1940] HCA 45. As this Court (Handley AJA, Hodgson and Tobias JJA agreeing) said in Sea Coatings (Australia) Pty Limited v Pascoe [2008] NSWCA 54, applying Forst, at [47]:

15. [90]

    The expert evidence was relevant to other issues, such as the risk of harm; and what the duty of care which the defendants owed to the plaintiffs required by way of reasonable precautions to avoid excavation near the boundary leading to subsidence because of inadequate support for Lot 71. The expert evidence established what was required to be done and that no reasonable precautions were in fact taken. However, the plaintiffs were entitled to rely on, and the primary judge was entitled to find causation established on the basis of, the sequence of events.

16. [91]

    As Mason P explained in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 (Bendix) at 317:

17. [92]

    It does not follow from the fact that Alex was implicated in the final collapse because of the work he was doing in close proximity to the collapse of the driveway, that other acts did not cause or contribute to that collapse. That judgments were entered against the other defendants (with the exception of the builder, against which proceedings were stayed due to the builder being in liquidation) is an illustration of this principle. Further, if Alex wanted to argue, as Mr Corsaro did in this Court, that the real cause of the collapse of the driveway was an act for which he was not responsible, it was forensically necessary, as “a commonsense or lay approach” for him to adduce evidence to that effect: Bendix, at 317G. No such evidence was adduced. As long as his acts (or omissions) caused the harm, and the plaintiffs could show (as they did) that, had Alex taken reasonable precautions to avoid the risk of harm, the harm would have been avoided, Alex was liable, since he owed a duty of care to the plaintiffs, at least by reason of s 177(2) of the Conveyancing Act.

18. [93]

    Mr Corsaro submitted that the primary judge erred in finding Alex liable in trespass because it had not been shown that Alex had encroached on either the soil or the subsoil of Lot 71. He submitted that the photograph dated 25 September 2021 showed no more than that Alex (on the assumption that Alex was the operator of the machine, as the primary judge found) operated the machinery adjacent to the western boundary or that the excavation extended onto Lot 71 and that therefore the claim in trespass had not been made out.

19. [94]

    The photographic evidence must be viewed in the light of the plaintiffs’ oral evidence as to the location of Alex’s machinery, including that Alex was working “under” Lot 71. This Court has often warned about the dangers of using photographic evidence alone without oral testimony of eyewitnesses as to what is depicted in them or expert evidence to interpret them: see generally Blacktown City Council v Hocking [2008] NSWCA 144. Thus, it is not productive to look at the still photograph of 25 September 2021 and for this Court to assess whether the machine depicted actually encroached onto Lot 71 at the time the photograph was taken. However, the Court below had the benefit of seeing and hearing the plaintiffs, who took the video, as to what they saw, which was that Alex was “below them” and, therefore, had encroached onto their land. Her Honour was entitled to accept that evidence and to find, accordingly, that Alex was liable in trespass because of his personal acts in encroaching on Lot 71.

20. [95]

    I understand it ultimately to have been accepted by Mr Corsaro that it was not necessary for the plaintiffs to prove that Alex knew precisely where the boundary between the development site and Lot 71 was in order to succeed in their claim in trespass against him. However, he submitted that, if Alex was not shown to know where the boundary was, it would amount to negligent trespass rather than intentional trespass. I reject that submission.

21. [96]

    The cause of action in trespass does not require the plaintiff to prove that the defendant knew the boundary of the plaintiff’s land but only that he or she was trespassing by encroaching on the plaintiff’s land, whether the defendant knew it was the plaintiff’s land or not. The position was summarised in Fleming’s The Law of Torts (11th ed, 2024, Thomson Reuters) at [3.20]:

22. [97]

    The relevant physical act is entry upon the possessor’s territory. The act must be voluntary and affirmative: Fleming at [3.40]. Entry below the surface at any depth is trespass: Fleming at [3.60]. The defence of mistake is not available in these circumstances. As Fleming said at [5.20], citing Basely v Clarkson (1681) 3 Lev 37; 83 ER 565:

23. [98]

    In this respect, there is a close analogy between intentional trespass with the intentional tort of false imprisonment: see Moon v Whitehead (2015) 10 ACTLR 309; [2015] ACTCA 17. In Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 (cited with approval in Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48), this Court held that a mistaken, albeit reasonable, belief that a prisoner was not due for release was no defence to an action for false imprisonment. At 743, Clarke JA rejected a submission that an action in trespass is only available on proof of fault on the part of the defendant as follows:

24. [99]

    The distinction between intentional trespass and negligent trespass was addressed but not decided by Williams J in Rove Estate Pty Ltd atf Lane Cove Estate Trust v Chomp Excavations & Demolition Pty Ltd (No 3) [2023] NSWSC 274, as her Honour was satisfied that the alleged trespass was intentional: [20]. Further, her Honour said, obiter, citing Rahme v Benjamin & Khoury Pty Ltd (2019) 100 NSWLR 550; [2019] NSWCA 211 at [135]-[137] (Macfarlan JA, Bathurst CJ and McCallum JA agreeing), that the claim in trespass was not an apportionable claim within the meaning of s 34(1)(a) of the Civil Liability Act since the absence of reasonable care was not an element of the cause of action in trespass.

25. [100]

    In Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232, this Court doubted whether this formulation is the better view (Stern JA at [182] and Basten AJA at [240]-[243]). An alternative approach was suggested in Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2) [2013] NSWCA 58 by Barrett JA, who said at [42]:

26. [101]

    In that case, the point was moot because, as Meagher JA said at [36]:

27. [102]

    It is well established that the causes of action in negligence and trespass (whether negligent or intentional) are separate causes of action which may be pursued in the same proceedings: Williams v Milotin (1957) 97 CLR 465 at 474 (Dixon CJ, McTiernan, Williams, Webb and Kitto JJ); [1957] HCA 83; see also, State of New South Wales v Knight [2002] NSWCA 392 at [16] (Meagher JA, Handley and Ipp JJA agreeing).

28. [103]

    It is not necessary to address these decisions further. In the present case, the relevant intention was present and the plaintiffs’ case was put on that basis. The defendants can have had no basis for believing that the plaintiffs had granted them an implied licence to encroach on Lot 71. They intended to excavate where they in fact excavated, which encroached on the plaintiffs’ land. It was common ground that the fence which was erected at the edge of the excavated soil near the boundary was erected on Lot 71. The encroachment was established by a wealth of evidence, including surveys taken as early as June 2021. Ground 4 has not been made out. The relevance of a finding of intentional trespass arises in relation to Mr Brown’s cross-appeals against Alex and Nick respectively, which will be addressed later in these reasons.

29. [104]

    Mr Corsaro argued that the effect of the primary judge’s orders was that Alex was liable for 70% of the defendants’ liability to the plaintiffs and that this figure involved error as a correct apportionment would have assessed his liability at a lesser figure.

30. [105]

    Mr Corsaro submitted in substance that the form of the List Response “could not displace the statutory operation of Part 4 of the Civil Liability Act” or the primary judge’s finding that each of the individual defendants was a concurrent wrongdoer, in the general sense of being jointly responsible for the damage to the plaintiffs. He submitted that the concession made by counsel for Nick at the hearing that, of the lengthy list of concurrent wrongdoers in paragraph 11 of the List Response, only “Structural Holdings Pty Limited” was relied on as another concurrent wrongdoer ought not be found to be binding on Alex who was, by the time the matter was heard, unrepresented.

31. [106]

    I regard the “concession” made by Nick’s counsel (that none of the other persons, corporate or natural, in the list in paragraph 11 was relied on) as an acceptance that there was no reliable evidence against any other alleged concurrent wrongdoer in the list apart from Kon. As referred to above, the evidence against Structural Holdings Pty Ltd was limited to a single document framed in heavily qualified terms.

32. [107]

    Accordingly, the real question for this Court is: what is the appropriate way of dealing with a pleading, filed on behalf of parties who, at the time of filing, had a solicitor on the record who represented them, which names one defendant but not the other three individual defendants as a concurrent wrongdoer?

33. [108]

    Mr Corsaro submitted that, because Alex was unrepresented at the hearing, this Court ought, in effect, disregard the pleading; proceed to apply Pt 4 of the Civil Liability Act for his benefit; and determine the matter as if he had been named as one of the putative concurrent wrongdoers in paragraph 11 of the List Response.

34. [109]

    I reject this submission. The importance of a defendant pleading the proportionate liability defence has long been emphasised. As this Court (Meagher, Payne and Brereton JJA) confirmed in Bingo Holdings Pty Ltd v GC Group Company Pty Ltd [2021] NSWCA 184 (Bingo) at [20], Pt 4 of the Civil Liability Act requires “concurrent wrongdoer” within the meaning of s 34(2) as well as the acts and omissions of the concurrent wrongdoer to be identified. A defendant who relies on a proportionate liability defence (by alleging that a person is liable to a plaintiff in respect of the same loss suffered by the plaintiff) must identify the alleged concurrent wrongdoer and “plead that claim with the same degree of particularity as if bringing a cross-claim against the alleged concurrent wrongdoer”: Bingo at [30]. This principle is no less important when the alleged concurrent wrongdoer is already a defendant.

35. [110]

    In [23] of Bingo, this Court cited the explanation given in Johnson v Mackinnon [2021] NSWCA 152 at [182] (Brereton JA, Macfarlan JA and Simpson AJA agreeing):

36. [111]

    Accordingly, the submission that Pt 4 of the Civil Liability Act applies of its own force, irrespective of whether it is pleaded as a defence must be rejected.

37. [112]

    Thus, as with a limitation defence, a defendant must plead a proportionate liability defence. It plainly falls within the matters that, if not specifically pleaded, would take the plaintiff by surprise: UCPR, r 14.4(2)(b). Of the four individual defendants, only Kon was named in their joint List Response as a “concurrent wrongdoer”. There is no explanation for this. However, if Frank, Alex or Nick wanted to have their liability to the plaintiff apportioned between themselves, it was necessary for each of them to be identified as concurrent wrongdoers in the List Response.

38. [113]

    Further, the primary judge highlighted the deficiency in the course of closing submissions in exchange with Mr Gauja, who appeared for Nick in the Court below, as to the alleged proportionate liability of the developer follows:

39. [114]

    I reject Mr Corsaro’s submission that Alex was entitled to latitude as he represented himself in the Court below which would extend to a finding that his liability to the plaintiffs was to be reduced proportionately by reference to the liability for which Frank, Alex and Kon were liable to the plaintiff. The relevant principle was articulated by the High Court in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 which, at [47], approved this Court’s decision in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) at 25 as follows:

40. [115]

    In any event, Alex and Nick were relevantly in the same interest (in that they would both have benefited by a pleading of the proportionate liability defence against each other and Frank) and Nick was represented and Alex was not. There is no suggestion that Mr Guaja did not put all that could have been put in favour of Nick in closing submissions. That he did not apply to amend the List Response at that stage is an indication of his appreciation that it was too late to do so.

41. [116]

    Mr Corsaro, in his written submissions in support of this ground, has elided the distinction between the expression “concurrent wrongdoers”, in its meaning of defendants who have been found liable to the plaintiff and the expression, as defined in Pt 4 of the Civil Liability Act, which extends to parties, including those sued, who have been nominated by defendants as bearing potential proportionate liability to the plaintiffs. Although each of the individual defendants is a concurrent wrongdoer in the general sense of parties liable to the plaintiff, this does not, without more, convert each into a “concurrent wrongdoer” for the purposes of Pt 4, unless identified in the List Response of the defendants as such.

42. [117]

    The primary judge’s apportionment of Kon’s liability at 30% was the product of the portion of the proportionate liability defence in their List Response, which named him, but not the other individual defendants, as a concurrent wrongdoer. While it can reasonably be inferred that, if the combined liability of Nick, Alex and Frank was 70%, the share of each would, had it been apportioned, have been found to be less than 70%, there was no pleading which entitled the primary judge to apportion the liability of any of the other defendants amongst themselves. In these circumstances, her Honour was correct to refrain from doing so. The parties are bound by their pleading. Further, her Honour gave the parties fair warning in closing submissions of how she read the List Response and how her Honour would deal with the proportionate liability defence.

43. [118]

    Ground 5 has not been made out.

44. [119]

    As none of the grounds of Alex’s appeal has been made out, his appeal ought be dismissed.

Nick’s appeal

1. [120]

   Written submissions were prepared on behalf of Nick by counsel, who was retained to appear for Nick in this Court. These submissions were filed. No submissions in reply were filed. Nick appeared for himself in this Court. In these circumstances, the Court has had regard to Nick’s written submissions as well as the brief oral submissions which he made in person.

2. [121]

   Nick accepted in written submissions that it was open to the primary judge to find that, contrary to Nick’s own evidence, Nick had engaged in excavation work near the boundary with Lot 71. However, Nick submitted that the evidence did not establish that he had excavated on Lot 71 itself and pointed to the lack of photographic or video evidence of his doing excavation work across the boundary. He also submitted that the surveys established that any encroachment onto Lot 71 was only in the order of 2m.

3. [122]

   Mr Brown’s evidence, which formed the basis for her Honour’s factual finding that Nick excavated on Lot 71, was as follows:

4. [123]

   Mr Brown confirmed that his memory of this time was clear.

5. [124]

   Mr Brown, when cross-examined by Nick’s trial counsel:

   1. (1)

      agreed that he had not taken photographs of Nick performing excavation work and that he was relying on his memory of having seen Nick do that work;

   2. (2)

      denied that he confused Nick with any other worker on the site;

   3. (3)

      denied the proposition that, in substance, his evidence that Nick had been engaged in excavations was a recent invention as it had not been referred to in his affidavits; and

   4. (4)

      confirmed that when he observed Nick excavating, he had already had several surveys of the boundary done although he was not relying on any particular report.

6. [125]

   The primary judge rejected Nick’s evidence (that he had not done any excavation work) and accepted Mr Brown’s evidence that he had seen Nick conduct excavation work across his boundary. It was not necessary that Mr Brown’s evidence be corroborated by contemporaneous photographs. Mr Brown was unshaken in cross-examination that this is what he saw. Although the wording of the question, “what digging might he have done”, in the exchange extracted above, was infelicitous, no objection was taken to the form. Mr Brown was not cross-examined to the effect that his answer was speculative by reason of the form of the question. Nor did Nick’s trial counsel make anything of the form of the question in submissions.

7. [126]

   I am not persuaded that either of grounds 1 or 2 has been made out.

8. [127]

   In the written submissions filed on behalf of Nick, no issue was taken with the primary judge’s summary of the legal principles that apply to the attribution of liability of a company’s directors for torts committed by the company. However, it was submitted on behalf of Nick that the plaintiffs had not established either that:

   1. (1)

      Nick personally owed a duty of care to Mr Brown or that Nick personally should have taken reasonable precautions against the risk of harm in the form of the manner of excavation and any works recommended by geotechnical engineers when Kon was the site supervisor, lead excavator operator and in control of the works on the site; or

   2. (2)

      that Nick directed or procured the builder’s breaches.

9. [128]

   There was ample basis for the primary judge’s finding that Nick owed the plaintiffs a duty of care and that he had breached it by failing to take reasonable precautions to address the relevant risk of harm.

10. [129]

    The primary judge found that Nick personally performed excavation work on the development site and across the boundary with Lot 71 (see grounds 1 and 2 above). Her Honour also found that he was the “project manager” (J[15]); was in charge of the project with Kon (J[18]); organised matters relating to the project (J[18]); ran the office; did not require direction (J[18]); was on-site for two to three days a week for two to three hours (J[19]); liaised with Safework, the council and consultants (J[19]); held himself out as the builder (J[21]); and was a de facto director (J[21]).

11. [130]

    Further, the primary judge found that, from at least 13 September 2021, Nick was on notice that the excavation had caused a severe weakening in the land beneath Mr Brown’s driveway; there was a danger that the driveway would collapse; the land dividing the properties was unstable; Mr Brown’s house displayed signs of movement which was likely to have resulted from the earthworks; the ground around the boundary, including Mr Brown’s driveway was unstable and in imminent danger of collapse; and, accordingly, remedial works needed to be undertaken immediately (J[166]).

12. [131]

    The primary judge’s findings on Nick’s liability as a director are set out at J[236]-J[245]. No error has been shown in these findings.

13. [132]

    Ground 3 has not been made out.

14. [133]

    Ground 4 of Nick’s appeal is relevantly indistinguishable from ground 5 of Alex’s appeal. For the same reasons, it has not been made out.

15. [134]

    I note that, as the submissions on apportionment developed in the course of the appeal, the parties were given leave to put on further written submissions on the question of apportionment. Although Nick appeared for himself at the hearing of the appeal, his solicitor availed himself of the leave granted and put on written submissions on the question of apportionment. The substance of these submissions has been addressed in the reasons relating to ground 5 of Alex’s appeal since they largely correspond with Mr Corsaro’s oral and supplementary written submissions on the topic.

16. [135]

    Nick did not challenge the figure of $50,000 for general damages, the figure of $2,122,232 for the cost of rectification or the amount of $745,000 for diminution of value. However, it was submitted on his behalf that there was a disproportionality which was productive of unreasonableness between the rectification cost of $2,122,232 and the diminution value of $745,000. He relied on Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 (Tabcorp) at [17]-[19]; Sved v Woollahra Municipal Council (1995) 86 LGERA 222 at 237 (Giles J); Evans v Balog [1976] 1 NSWLR 36 at 40; and Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557; [2023] NSWCA 5 at [119] (Kirk JA and Griffiths AJA). Nick also relied on the circumstance that Mr Brown had been prepared to sell Lot 71 to the builder as evidence that there was no necessary inference that Mr Brown would, in fact, rectify Lot 71, rather than sell it (for its residual value of $75,000) and retain the damages assessed by reference to rectification costs as a windfall. No basis has been established in the present case for the suggestion that Mr Brown, as the innocent party, is “merely using a technical breach to secure an uncovenanted profit”: see Tabcorp at [17].

17. [136]

    As referred to above, Mr Brown particularised his damages by reference to the cost of rectification. The List Response simply denied that damage had been suffered. Mr Rogers said in opening:

18. [137]

    In his affidavit evidence, Mr Brown deposed as to the damage to Lot 71. He also said that he had been unable to sell the house because of ongoing issues. While Mr Brown was cross-examined about alleged discussions between him and Nick about rectification works (which he denied or did not recall), he was not cross-examined about whether he would actually undertake rectification works on Lot 71.

19. [138]

    Ms Saric deposed that the plaintiffs’ main reason for buying Lot 71 was to provide easier access for loading and unloading the van used for her business of repairing motorcycle leathers than was available in Sydney and to open up a market for customers from Newcastle and the Central Coast. They had planned to build a garage/shed on the eastern side of their house to use in the business.

20. [139]

    It was not put to either Mr Brown or Ms Saric in cross-examination that they did not intend to rectify Lot 71 or that, once the proceedings were over, they would sell Lot 71.

21. [140]

    In closing address, the following exchange took place between Nick’s counsel and the primary judge about damages:

22. [141]

    In her Honour’s reasons for assessing Mr Brown’s damages on the basis of the cost of rectification (J[271]-272], extracted above), the primary judge took account of the lack of challenge by the individual defendants to the plaintiffs’ intention to rectify Lot 71. Her Honour noted that it was not suggested to the plaintiffs that they had a “strong desire to move”. Nor were they asked whether they had been “looking around” for an alternative property. In my view, it was open to the primary judge to regard the failure of the individual defendants to put these matters to either Mr Brown, as the owner of Lot 71, or to Ms Saric, who lived with him there, as forensically significant and correct for her Honour to do so. This omission lends force to the primary judge’s finding that the damages ought be assessed on the basis of the rectification cost.

23. [142]

    The relevant principles appear from the authorities.

24. [143]

    In Evans v Balog, Mr and Mrs Balog, who owned a home in Bronte, where they lived, claimed damages against Evans, a developer of the neighbouring land. Evans had taken no precautions to protect Mr and Mrs Balog’s home from the excavation work which the developer was conducting on the neighbouring land. Their home cracked; a portion of the ceiling fell; and an extension for the living room split completely away from the rest of the building. At trial, Mr and Mrs Balog were awarded damages on the basis of the cost of rectification. Evans appealed, arguing that the highest and best use of the Balogs’ property was as a development site, with the consequence that there had been no diminution of value and that, accordingly, it was not reasonable to assess damages by reference to the cost of rectification.

25. [144]

    This Court (Samuels JA, Moffit P and Hutley JA agreeing) dismissed Evans’ appeal and held, at 39-40, that damages for tortious damage to a building may be the cost of reinstatement or diminution in value of land and improvements. The Court adopted the following passage from McGregor on Damages at p 713 as articulating the true criterion of the selection between diminution of value and the cost of reinstatement:

26. [145]

    The Court also said, at 40, that the statement “that a plaintiff may have the cost of restoration provided that it is not disproportionate to the diminution in value … is merely an alternative way of stating the principle expressed in McGregor on Damages.”

27. [146]

    In Sved v Woollahra Municipal Council, the council was found to have been negligent in issuing a s 317A certificate to Mr and Mrs Sved in respect of a residential property in Vaucluse which they purchased. Within a short time, defects emerged in the building. Giles J, the trial judge, found that damages ought be assessed on the basis of the cost of rectification rather than the diminution of value. His Honour said at 233-234:

28. [147]

    In this Court, Nick sought to distinguish Evans v Balog or Sved v Woollahra Municipal Council on the basis that it was not implicit that there was an intention on the part of Mr Brown to reinstate his property to its condition before it was tortiously damaged. Nick relied on the disproportionality between the cost of reinstatement and the diminution in value as well as the undisputed circumstance that, in March 2021, Mr Brown had been prepared to sell Lot 71 for $670,000. However, as Mr Brown’s intentions were not explored at all in cross-examination, I do not consider that it would have been fair for the primary judge to infer, when assessing damages as at 30 April 2025, that, Mr Brown, having lived on Lot 71 for another four years since March 2021 would simply sell up rather than rectify Lot 71. Such evidence as there was indicated that when Mr Brown tried to sell Lot 71, he was unable to due to “ongoing issues”. This answer was not explored in cross-examination.

29. [148]

    Further, where, as here and in Evans v Balog and Sved v Woollahra Municipal Council, the property in question is a residential home in which the plaintiffs live, concepts of reasonableness take on a different complexion. Indeed, in Evans v Balog, Hutley JA, at 41, described Evans’ appeal as “quite ridiculous”, which I take to be a reference to Evans’ submission that, as the highest and best use of the Balogs’ home was for development, they had lost nothing. This analysis harks back to the general principle that a party ought not be permitted to profit from its own breach: see generally, Hawkins v Clayton (1988) 164 CLR 539 at 590; [1988] HCA 15 (Deane J).

30. [149]

    I am not persuaded that the error alleged in ground 5 has been made out.

31. [150]

    As none of the grounds of Nick’s appeal has been made out, the appeal ought be dismissed.

32. [151]

    Mr Brown submitted that the primary judge was in error in apportioning the damages for trespass as they had established intentional trespass, which was not apportionable as the provisions of the Civil Liability Act which authorise apportionment did not apply to intentional torts.

33. [152]

    For the reasons given above with respect to ground 4 of Alex’s appeal, the cross-appeal ought be allowed. In the Court below, the plaintiffs established trespass as an intentional tort. The effect of the finding that the trespass was intentional is that the provisions relating to proportionate liability do not apply. Accordingly, Mr Brown is entitled to an order that each of the cross-respondents to his cross-appeals, Alex and Nick, is liable for the whole of the judgment, without apportionment.

34. [153]

    This result can be achieved by amending order (1) made by the primary judge to include Nick and Alex as parties who, with the developer, are jointly and severally liable for 100% of the damages awarded. It is not necessary to amend the substantive content of orders (2) and (3) as to apportionment since they preserve the apportionment as between Alex, Frank and Nick, on the one hand, and Kon, on the other. However, it is desirable to add the words, “being 70% of $2,172,232” at the conclusion of order (2) and “being 30% of $2,172,232” at the conclusion of order (3) to make clear that the amount of the judgment sum in the order corresponds with the primary judge’s apportionment as between Alex, Frank and Nick, on the one hand, and Kon, on the other. Further, order (2) not only limits Frank’s liability to the first plaintiff to 70% of the damages assessed but will enable him, if he pays more than a third of 70% of the damages assessed, to obtain contribution from Alex and Nick.

Proposed orders

1. [154]

   For the reasons given above, I propose the following orders in proceedings 2025/192733 and 2025/198389:

   1. (1)

      Dismiss the appeal.

   2. (2)

      Allow the cross-appeal.

   3. (3)

      Vary orders (1), (2) and (3) made by Rees J on 30 April 2025 as follows:

   4. (4)

      Order the appellant to pay the first and second respondents’ costs of the appeal.

   5. (5)

      Order the cross-respondent to pay the cross-appellant’s cost of the cross-appeal.