Rayman v Brown [2026] NSWSC 731 | Case summary | Zoe

NSWNSWSC

Rayman v Brown

[2026] NSWSC 731

Supreme Court of NSW|2026-09-25|Before: Ward P

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-09-25

Before

Ward P

Catchwords

TORT – negligence – duty of care at common law and under s 5B of the Civil Liability Act 1995 (NSW) – whether there was a breach of a duty of care by failing to take reasonable precautions to minimise or reduce the risk of damage to neighbouring property TORT – negligence – whether breach of the duty of care pursuant to s 177 of the Conveyancing Act 1919 (NSW) – whether s 177 imposes a non-delegable duty TORT – proportionate liability under s 35 of the Civil Liability Act 1995 (NSW) – whether concurrent wrongdoers – principles to be applied in apportioning liability DAMAGES – claim for diminution in value and consequential losses EVIDENCE – improperly obtained evidence – whether breaches of the Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) enliven s 138 of the Evidence Act 1995 (NSW) – whether the desirability of admission outweighs any undesirability

Catchwords

TORT – negligence – duty of care at common law and under s 5B of the Civil Liability Act 1995 (NSW) – whether there was a breach of a duty of care by failing to take reasonable precautions to minimise or reduce the risk of damage to neighbouring property TORT – negligence – whether breach of the duty of care pursuant to s 177 of the Conveyancing Act 1919 (NSW) – whether s 177 imposes a non-delegable duty TORT – proportionate liability under s 35 of the Civil Liability Act 1995 (NSW) – whether concurrent wrongdoers – principles to be applied in apportioning liability DAMAGES – claim for diminution in value and consequential losses EVIDENCE – improperly obtained evidence – whether breaches of the Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) enliven s 138 of the Evidence Act 1995 (NSW) – whether the desirability of admission outweighs any undesirability

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Rayman v Brown [2026] NSWSC 731

Hearing dates: 22, 27-31 October 2025, 20 March 2026, 17 April 2026

Date of orders: 25 September 2026

Decision date: 25 September 2026

Jurisdiction: Equity - Commercial List

Ward P

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Bower v Peate (1876) 1 QBD 321
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The redevelopment of the Brown Land comprised demolition of the then existing dwelling on the land and the construction thereon of a new three-storey dwelling with an inground swimming pool in the north-western corner of the site. Excavation works commenced on the Brown Land in April 2020 and, as will be explained in more detail below, a sheet pile shoring system was used as the temporary shoring system for the excavation. This involved the construction of retaining walls using interlocking steel sheet piles driven into the ground to form a continuous wall. This was contrary to the recommendation of the initial geotechnical engineer involved in the project that sheet piling not be used due to the risk of adverse vibrations causing harm to adjoining properties. That risk (clearly foreseeable and in fact both foreseen and the subject of a clear warning) unfortunately came to bear, causing damage to Ms Rayman’s home (the Rayman Home).
In essence, Ms Rayman’s complaint is that, in the course of engaging in the excavation works, the builder, Scopeview Projects Pty Ltd (Scopeview) removed support provided by the Brown Land to the Rayman Land, resulting in significant structural and other damage to her property. Ms Rayman contends, and the respective expert structural and geotechnical engineers agree, that the primary cause of the damage was the occurrence of excessive vibrations during the construction of the sheet pile walls. That damage was immediate.
There was some further damage, or exacerbation of the initial damage, over time. The structural engineer retained by Ms Rayman (Mr Anthony Dockrill) attributed this to the sheet piling wall having been constructed too close to the boundary of the Rayman Land and at too great a distance from the boundary wall of the home to be built on the Brown Land. The sole expert geotechnical engineer who gave evidence (Mr Patrick Wong), who was called by Scopeview, did not attach any significance to the distance of the relevant sheet pile wall from the boundary to the Rayman Land or from the boundary wall of the new property on the Brown Land. Rather, he attributed the subsequent damage to the delay in bracing of the sheet piles while they were in cantilever (upright) position, which caused deflection or lateral movement and expressed the opinion that the thinness of the particular type of sheet piles used for the temporary shoring contributed to the deflection which had occurred.
In September 2022, Ms Rayman commenced proceedings in the Technology and Construction List in the Equity Division of this Court, claiming damages against Ms Brown and against Scopeview, for breach of s 5B of the Civil Liability Act 2002 (NSW) (Civil Liability Act) and breach of s 177 of the Conveyancing Act 1919 (NSW) (Conveyancing Act).
Subsequently, a number of other entities were joined to the proceedings: Meso Solutions Pty Ltd (Meso), the third defendant, a shoring contractor that was engaged by Scopeview (see the first affidavit sworn 23 August 2023 by Scopeview’s director, Mr Doueihi at [19]-[21]), to design and install a temporary shoring system at the site of the excavation works; VMS Australia Pty Ltd (VMS), the fourth defendant, a specialist vibration management consultancy that was engaged by Meso (Agreed Fact [5]) to carry out vibration monitoring during the installation of temporary sheet piling and during the excavation (and, Scopeview alleged, to set vibration thresholds); In-ground Design & Consultants Pty Ltd (IDC), the fifth defendant, a design consultancy now in liquidation that was engaged by Meso to provide advice concerning the design of (or to design) a temporary shoring system at the Brown Land (Agreed Fact [6]); and El Australia Pty Ltd (EIA), the sixth defendant, a geotechnical engineering consultancy engaged by Meso to carry out geotechnical investigation and to provide an opinion on the suitability of the use of sheet piling for the proposed development (Agreed Fact [7]).
I interpose to note that EIA’s involvement was well after the decision had been made by Mr Doueihi, and endorsed by Mr Brown, to use a sheet piling shoring system and, as I explain in due course, was seemingly to address the difficulty posed by the fact that the approved structural plans the subject of the initial development consent for the project identified a contiguous shoring system not a sheet piling shoring system.
By the time of the hearing, Ms Rayman had settled her claims against each of Meso, VMS and EIA, leaving Ms Brown and Scopeview as the only active defendants in the proceeding. (IDC was never served with the initial process and played no part in the proceedings.) Nevertheless, the issue as to whether, and, if so, to what extent, the damage claimed to the Rayman Land was caused by the concurrent wrongdoing of the third to sixth defendants remained in dispute as between Ms Rayman and Scopeview.
Ms Brown filed two cross-claims in the proceedings. The first cross-claim, filed in December 2023, was brought against Scopeview, alleging breach of contract by reason of the alleged failure of Scopeview to take reasonable care. Scopeview’s response to that cross-claim pleaded concurrent wrongdoing on the part of each of Meso, VMS, IDC and EIA. The second cross-claim, filed in March 2024, was brought against Ms Rayman, claiming compensation for an encroachment on the Brown Land of a retaining wall between the respective properties and damages, being the cost of the removal, rebuild and fence replacement of the said retaining wall. The encroachment claim had nothing to do with the construction works the subject of Ms Rayman’s claim.
Ms Rayman entered into a contract for the sale of the Rayman Land in October 2024, completing the sale in February 2025. As a consequence, Ms Rayman amended her claim for damages to claim the diminution in value of the Rayman Land (as opposed to a claim for rectification costs). Noting that there is no pleaded failure to mitigate raised by any party, Ms Rayman seeks those damages in full in the form of special (rather than general) damages.
Shortly prior to the hearing, Ms Brown sought leave to amend her cross-claim against Ms Rayman in order to abandon the encroachment compensation/damages claim (which Ms Brown conceded was no longer sustainable following the sale of the Rayman Land – see the affidavit affirmed on 20 October 2025 by Ms Brown’s then solicitor, Mr David Rod, at [12]) and to bring a new claim based on an alleged breach of an oral agreement reached at a meeting on 17 September 2021 for Ms Rayman to pay a half share of the costs of the removal and reinstatement of the retaining wall the subject of the encroachment claim (the amount sought to be recovered being $69,853.56).
The proposed amendment to the cross-claim against Ms Rayman (confusingly referred to by counsel for Ms Brown as the first cross-claim – see 17/10/25; T 12) was first foreshadowed to the Court on 17 October 2025 and was then the subject of a notice of motion filed by Ms Brown on 21 October 2025, six days before the hearing was listed to commence. Ms Brown sought to rely on two affidavits in relation to that newly raised issue – an affidavit affirmed on 19 October 2025 by Mr Brown and an affidavit affirmed on 20 October 2025 by Mr Rod. I deferred ruling on the motion when it came before me on 22 October 2025 in order to permit Ms Rayman time to make enquiries as to what additional evidence relevant to the issue might be obtained prior to the hearing (which, as adverted to above, was listed to commence on 27 October 2025) (22/10/25; T 30.35).
Meanwhile, by email sent on 18 October 2025 at 2:33pm, Mr Rod advised the solicitor for Ms Rayman (Mr Ziv Ben-Arie) that Ms Brown abandoned the causes of action based on the Encroachment of Buildings Act 1922 (NSW) and Dividing Fences Act 1991 (NSW).
When the hearing commenced on 27 October 2025, I was advised that Ms Brown no longer pressed the application to amend her cross-claim against Ms Rayman and, indeed, no longer pressed her cross-claim against Ms Rayman at all (see 27/10/25; T 1.37). The notice of motion dated 21 October 2025 was therefore dismissed and the question of costs was reserved. As to the cross-claim by Ms Brown against Scopeview, that was settled between those parties. On the first day of the hearing, short minutes of order were handed up providing for the dismissal of that cross-claim with no order as to costs (with the intent that Ms Brown and Scopeview respectively bear her or its own costs of the proceedings).
Accordingly, by the commencement of the hearing, the only claims to be determined were those raised in Ms Rayman’s amended commercial list statement and the respective defences thereto of Ms Brown and Scopeview. The issues raised by those pleadings are summarised in due course (see [36]ff below).
The matter was heard over five days and judgment was reserved on 31 October 2025.
Shortly after judgment was reserved, by letter dated 12 December 2025 addressed to my associate, Mr Rod foreshadowed an application to reopen the hearing based on the “real risk” identified by Mr Rod of the Court’s pending judgment being based on evidence described by him as being inaccurate, incorrect and potentially misleading or materially incomplete, and his submission that it was in the interests of justice so to do. A directions hearing was sought for the purpose of determining a timetable for Ms Brown to file a notice of motion seeking leave to: apply to have the matter reopened for further evidence and, if so, in respect of what issues; the procedure and timetable for receiving the “corrected evidence”; and any further directions considered appropriate in that regard.
The matter was listed for directions in the first week of the new law term on 2 February 2026. Notwithstanding that Ms Brown’s solicitor had foreshadowed on 12 December 2025 an intention to seek leave to reopen the hearing, no notice of motion or affidavit evidence for that purpose had been prepared by the time the matter came before me for directions. I was informed that this was due to the serious ill-health of Ms Brown’s counsel (see 02/02/26; T 1.43). Directions were made on that occasion for the filing by Ms Brown of a notice of motion, affidavit(s) in support and submissions by 10 February 2026. Further directions were made on 12 February 2026 for any evidence and submissions from the respondents to the motion, and reply evidence, if any, from Ms Brown. On that date, the motion was listed for hearing on 20 March 2026. The timetable for filing of evidence/submissions was amended on 2 March 2026 but the motion remained listed for hearing on 20 March 2026.
On 17 March 2026, a letter was sent to my associate by another solicitor, Ms Jane Button, advising that she was “newly” instructed to act for Ms Brown in the proceedings and seeking leave for orders for a change of the timetable in support of an application for directions and for time to prepare and file further evidence.
In her letter, Ms Button advised that she had a “rudimentary” knowledge of the issues in the case and had assisted Mr Rod in the trial in relation to the collation of the court book. Ms Button advised that Mr Rod had informed her that he was unable to continue acting for Ms Brown as he had become a witness in the matter. (With respect, that should have been obvious to Mr Rod from at least 12 December 2025, if not before, when his very own letter contemplated seeking leave to adduce evidence from himself if the hearing were to be reopened but if there were any doubt about this it must have vanished when Mr Rod realised that Mr Doueihi was disputing Mr Rod’s account of the telephone conversation on 18 November 2025 that had apparently precipitated the application.)
Ms Button’s letter referred to the need for Mr Brown and Mr Rod to reply to the evidence that had by then been served from Mr Doueihi and Mr Maroun Sara (an employee of Scopeview), provision for which had been made in the extant timetable but not complied with. Ms Button stated that the evidence required an area of specialisation (not identified) that needed to be dealt with and was beyond her expertise and that of Mr Luitingh, counsel for Ms Brown. Ms Button stated that she had briefed (unnamed) specialist counsel on this (unidentified) aspect of the matter and could not file any reply evidence until she had received advice.
Ms Button proposed a revised timetable that contemplated the motion being set down for hearing “any time after 20 April 2026”. Ms Button also stated that the material (it is not quite clear whether that was a reference to the material proposed to be prepared in reply or to the material already in evidence as to the reopening or perhaps the hearing as a whole) was voluminous, though she conceded that “this is a discreet issue”.
The contents of that letter were replicated in an affidavit sworn by Ms Button on 18 March 2026 (which was annexed to an affidavit affirmed by Mr Ben-Arie, that was read on 20 March 2026).
On 20 March 2026, consistent with Ms Button’s letter, Mr Luitingh made an oral application for the hearing of the motion to be adjourned for a month. I dismissed that application. For completeness, I here record that I dismissed the adjournment application after balancing the factors identified in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (albeit there in the context of an application for leave to amend), including any explanation for the delay in making the application and the prejudice to the relevant parties of granting or disallowing the application.
In particular, I placed weight on the following matters: that it must have been apparent to Mr Rod from at least 12 December 2025 that there was a difficulty in him remaining as solicitor on the record for Ms Brown since it was contemplated that he would be a witness on the reopening application (and further hearing if that application were successful); Mr Luitingh himself informed me from the Bar table (20/03/26; T 1.46) that he had said “for some time” that Mr Rod could not continue to act in the matter; there was no explanation as to why Mr Rod had not ceased to act in the matter at an earlier time (but instead had obviously continued to act in the preparation of the initial affidavit evidence for the reopening application); Ms Button had been involved in the matter in at least some capacity at the hearing; Mr Luitingh, who had conducted Ms Brown’s case at the hearing, continued to be retained and was appearing on the hearing of the motion; and what was listed for hearing on 20 March 2026 was only the application to reopen (not the reopened hearing if that application were successful). I was unable to place weight on the possibility of some mystery evidence emerging, to which only cryptic reference had been made. Further, such an adjournment was to my mind inconsistent with the mandate for the just, quick and cheap resolution of the real issues in dispute.
The hearing of the motion then proceeded. Read on the hearing of the notice of motion were: an affidavit affirmed on 9 February 2026 by Mr Rod; an affidavit affirmed on 9 February 2026 by Mr Brown; an affidavit sworn on 26 February 2026 by Mr Doueihi; an affidavit sworn on 25 February 2026 by Mr Sara; an affidavit affirmed on 18 March 2026 by Mr Rod and an affidavit affirmed on 19 March 2026 by Mr Brown. The mysterious evidence in reply that was said to have required advice from specialist counsel did not ever materialise.
At the conclusion of the hearing of the notice of motion, I granted leave for a limited reopening of the hearing, for reasons to be provided in due course (those reasons appear at [457]ff below) and for the further evidence to be adduced but only in relation to the issue on which leave was granted. That issue (and the reopened hearing) was confined to the dispute between Ms Brown and Scopeview as to the content of the telephone conversation on 18 November 2025 between Mr Brown and, inter alios, Mr Doueihi as to the latter’s recollection (if any) of a conversation between Mr Brown and Mr Doueihi on 2 March 2020 about which evidence had been given at the hearing.
There was then a further full day’s hearing on 17 April 2026. Hence, the unfortunate delay in the final disposition of the proceedings.
In summary, I have concluded the following. Ms Rayman has established her claims in negligence against each of Ms Brown and Scopeview in relation to the decision to use sheet piling (and in the case of Scopeview in the carrying out of the excavation works for the temporary shoring using sheet piles) and Ms Brown’s contributory negligence claim against Ms Rayman fails. The duty not to remove support for the Rayman Land is not a non-delegable duty. The decision to use sheet piling was an act that caused the removal of support for the Rayman Land for the purposes of s 177 of the Conveyancing Act (and there was a breach by both Ms Brown and Scopeview in that regard but it adds nothing in circumstances where I have found that there was a breach of the common law and s 5B duty of care). The failure to notify Ms Rayman of the plans/notifications and commencement of excavation works until 24 April 2020 was an omission, not an act, and hence not a breach of s 177 of the Conveyancing Act. Each of Meso, IDC, VMS and EIA is a concurrent wrongdoer (for the purposes of the proportionate liability regime invoked by Scopeview but not Ms Brown). Scopeview’s proportionate liability for the damage is assessed at 15%. Finally, Ms Rayman is entitled to damages for the diminution in value of the Rayman Land (which I have found is $1.15 million, accepting the opinion of Mr Jason Field (the valuer called as an expert witness by Ms Rayman)) and some of the cosmetic repair costs (but not all of those costs in circumstances where I am not comfortably persuaded that all of those cosmetic repairs were required as a result of the excavation work). I have quantified Ms Brown’s liability as $1,164,782.20 plus interest and Scopeview’s liability as $174,717.33 plus interest. The issue of costs is to be determined, after brief written submissions, on the papers.

By her Further Amended Technology and Construction List Statement filed on 9 April 2025, Ms Rayman alleges that each of Ms Brown and Scopeview breached a duty of care owed to her pursuant to s 5B of the Civil Liability Act and/or s 177(2) of the Conveyancing Act and/or breach of a statutory duty arising from the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Environment Planning and Assessment Regulation 2000 (NSW) (EPA Regulations) and/or at common law by failing to take reasonable precautions to minimise or reduce the risk of damage to the Rayman Land and/or the Rayman Home (the home built upon the land) ([C.112]; [C.116]). At the hearing, the allegation of breach of s 4.2 of the EPA Act was not pressed (see 31/10/25; T 410-411; T 467.25).
Further and/or alternative claims, following the identification of alleged concurrent tortfeasors in Scopeview’s Amended List Response filed on 7 November 2023, are pleaded against each of the third to sixth defendants (see from [C.144] of the Further Amended Technology and Construction List Statement). As adverted to above, Scopeview contended in its List Response that such liability as it might have should be apportioned (pursuant to s 34 of the Civil Liability Act) on account of the involvement of the third to sixth defendants.
Ms Brown, in her defence, raised a claim of contributory negligence against Ms Rayman based on an allegation that the Rayman Home (and, in particular, the footings) was not in good condition, which allegedly contributed to Ms Rayman’s loss and gave rise to a positive duty on Ms Rayman’s part to advise Ms Brown of those matters ([C37]). Ms Brown also pleaded a contention of betterment ([C216]), namely that, if it were to be found that Ms Rayman had suffered loss caused or contributed to by Ms Brown and that Ms Rayman was entitled to a claim for restitution, then there should be an account given for betterment as a deduction from Ms Rayman’s loss, in that the restitution order would result in an improvement of the Rayman Home compared to its condition immediately prior to 27 April 2020, a benefit to Ms Rayman in excess of the cost of restitution, and an improvement in her financial position. Ms Brown did not invoke the proportionate liability regime (cf Scopeview) and confirmed this in her oral submissions. Nor did Ms Brown plead any failure to mitigate (and in oral submissions she positively disavowed any such case).
I consider in more detail the pleaded claims and defences thereto in due course.

The issues arising on the commercial list pleadings, as pressed at the hearing, may be summarised as follows.
First, whether Ms Brown and/or Scopeview breached a duty of care owed to Ms Rayman pursuant to s 5B of the Civil Liability Act and/or at common law by failing to take reasonable precautions to minimise or reduce the risk of damage to the Rayman Land and/or Rayman Home.
In the case of each of Ms Brown and Scopeview, the issue is whether she or it failed to exercise reasonable care in carrying out the construction works by: failure to implement the recommendations of the Martens Report (see [50] below); failure to implement the recommendations of the EIA Report (see [169] below); failure to comply with the conditions of the Modified Development Consent; failure to avoid causing vibration damage (during the installation of sheet pile shoring between 28 April and 2 May 2020); failure to maintain lateral support for the Rayman Land; and removal, reduction or destabilisation of the lateral support for the Rayman Land (see [C.112]; [C.116] of the further amended commercial list statement).
Second, whether Ms Brown and/or Scopeview failed to exercise reasonable care in doing something in relation to the Rayman Land (s 177 of the Conveyancing Act) by reason of one or more of the breaches alleged at [C.112]; [C.116]. This issue includes the question whether s 177 imposes a non-delegable duty.
Third, for the purposes of the claim against Scopeview (it being the only defendant to invoke proportionate liability), whether each of Meso, VMS, IDC and EIA was a concurrent wrongdoer.
Fourth, causation, i.e., whether damage was caused to the Rayman Land as a result of: one or more of the alleged breaches of Ms Brown and/or Scopeview (and, in the concurrent wrongdoing case by Scopeview, of Meso, VMS, IDC and/or EIA).
Fifth, related to the above, the issue of proportionate liability (the extent to which any of the concurrent wrongdoers contributed to Ms Rayman’s loss).
Sixth, damages: the claim for diminution in value of the Rayman Land and for consequential losses (costs associated with the ultimate sale in 2024, completed in 2025, of the property).

The Rayman Land was purchased by Ms Rayman in 2009 (Agreed Fact [12]) and the Rayman Home was renovated in 2010/2011 (Agreed Fact [13]). The scope of the renovation is not entirely clear. In a 2019 Dilapidation Report (prepared by the structural engineer retained by Ms Brown in relation to her redevelopment, Mr Martin Zimmerman) (see below) reference is made to the rebuild including the removal of walls and the addition of a new first floor brick veneer storey as well as a double garage to the street front. In Ms Brown’s submissions, reference is made to the renovation as including renovations in the basement and to the basement support.
Mr Zimmerman apparently had some involvement in the renovation of the Rayman Home (as the structural engineer involved in certifying alterations and additions to the property in 2010) (see the proposition put to Ms Rayman in cross-examination by counsel for Ms Brown – at 28/10/25; T 88). Mr Rayman gave evidence that he met Mr Zimmerman when the Rayman Home was renovated (28/10/25; T 124). It is clear from the 2019 Dilapidation Report that Mr Zimmerman knew of the existence of the basement (although there is no specific description of its condition). It seems inherently unlikely that Mr Zimmerman (who was clearly cautious or conservative in his approach to the question of the temporary shoring system to be used for the Brown Land excavation works) would have approved basement works to the Rayman Home that displayed the features criticised by the structural engineers in this case (and which form much of the basis of Ms Brown’s contributory negligence claim).
Ms Rayman’s evidence is that the renovation work was carried out by licensed contractors under the supervision of the builder engaged by the Raymans in accordance with approved plans (Ms Rayman’s affidavit affirmed on 30 January 2023 at [25]). However, it is not clear precisely what involvement Mr Zimmerman had, if any, in the actual carrying out of the renovation works and there is insufficient evidence of those 2010/2011 renovations to make any finding in this regard.
The significance that Ms Brown attaches to the renovation of the Rayman Home, as adverted to above, relates to her submission that Ms Rayman at all material times knew that the footings to support two floors above the sub-floor (storage room) or basement were “non-compliant, inadequate, defective and substandard”, such that Ms Brown contends that Ms Rayman had a duty to act reasonably and to inform her of the vulnerable state of the footings so that she (Ms Brown) could take measures to protect the Rayman Home. (The irony of this submission is that Ms Brown well knew, through her husband, what was recommended to ensure the integrity of adjoining properties – i.e., to use a contiguous piling system – and chose not to follow that recommendation.) There is no evidence that the state of the basement footings was the cause of the damage sustained during the vibrations that occurred during sheet piling (as opposed to the primary cause being the vibrations themselves, although the structural engineer retained by Ms Brown, Mr Mark Manning, considered that the state of the footings may have exacerbated the damage (30/10/25; T 345)). Nor is there any evidence that Ms Rayman actually knew that the footings were defective, although Mr Manning considered that this would have been obvious to a lay person (30/10/25; T 344).

MASQ commissioned a Preliminary Geotechnical Assessment by Martens Consulting Engineers (Martens Report). The Martens Report, dated 15 June 2018, prepared by Mr Kenneth Burgess, principal engineer at Martens, was submitted to Waverley Council with the application for development consent (see below). For completeness, I note that, although the construction certificate ultimately issued in relation to this development referred to a second Martens Report dated 17 October 2019, the only Martens Report in evidence was one dated 15 June 2018 and the expert structural engineer called by Scopeview (Mr Leigh Appleyard) confirmed that he had only ever been provided with one Martens Report (30/10/25; T 347.26).
The Martens Report relied on results from three bore hole samples using hand augers which went no further than 2.15 m at the front of the property, 2.9 m in the middle of the property and 3.2 m at the rear of the property.
In section 3.4 of the Martens Report, headed “Geotechnical Recommendations”, the first item dealt with is “Excavation and support”. The Martens Report stated that excavations “must be temporarily and permanently battered back / shored / retained to maintain excavation stability and limit potential adverse impacts on neighbouring properties / structures or other infrastructure”. The Martens Report stated that, for shoring below ground water level and/or inside the “zone of influence” of adjoining properties, cantilevered or anchored secant concrete pile walls may be adopted. The Martens Report recommended that an experienced piling contractor should be engaged to ensure good verticality of piles to limit gaps between piles and identified that care was required to limit structural distress to neighbouring structures.
Significantly, the Martens Report specifically stated that the use of driven piles and sheet piles was not recommended “due to adverse vibration impacts on neighbouring structures / infrastructure”. The Martens Report was prescient in its recommendation against the use of sheet piling (and its recommendation for low vibration limits – see below) since the primary cause of damage to the Rayman Home, as noted above, was vibration caused by the installation of the sheet piling.
As to vibration, the Martens Report stated that care was required to limit structural distress and settlement of very loose and loose foundation material. It recommended that an excavator should be limited to 8 tonnes and that ground vibration peak particle limit velocity (PPV) be limited to 3 mm/s. Pausing here, PPV refers to the movement within the ground of molecular particles. Effectively, the higher the number or frequency of vibrations travelling through the ground, the more likely it is that damage will be caused by the vibrations (cf the contrary opinion asserted by Scopeview’s director, Mr Doueihi, in the course of his evidence – 29/10/25; T 250; see [362] below).
The Martens Report noted that underpinning of neighbouring footings “may” be required prior to commencement of site works.
The Martens Report also noted that the Brown Land was in an area of silty and sandy soil, classifying the site as Class “P” due to the presence of “very loose and loose sands” up to approximately 2.0 m BGL (Below Ground Level). (Thus, Ms Rayman says that both Ms Brown and Scopeview, to each of whom the Martens Report was provided, were on notice that the sub-soil of the Rayman Land was susceptible to movement and/or subsidence if lateral support was removed. There can be no doubt about this.)

On 15 November 2019, a dilapidation report was issued by Mr Zimmerman’s firm (M Zimmerman & Associates Pty Ltd) recording the condition of Ms Rayman’s property (the 2019 Dilapidation Report). (Mr Zimmerman also prepared a dilapidation report in relation to the other adjoining neighbour’s land – the Stockley Land.)
The 2019 Dilapidation Report attached 61 photographs of the Rayman Home. There were no photographs of the basement or the piers supporting the house. Relevantly, the 2019 Dilapidation Report stated that the Rayman Home was internally in “a very good condition, showing some non structural cracking”; and that some external horizontal cracking could be observed (this was along the common boundary with the Brown Land – see photographs taken by VMS on 29 April 2020). The report suggested that it was likely that the external cracking related to the transition “between old and new” and referred to the potential that there was some weakness in the sandstone base. The report noted that the construction on the Brown Land required substantial excavation and stated that the excavation itself required a fair amount of expertise and consideration for the neighbourhood. The report noted that, to accommodate the integrity of the Rayman Home, a shoring system had been devised consisting of contiguous piering and strutting (i.e., as opposed to a sheet piling system). (I note that the reference in the report is to “contiguous piering”, not contiguous “piling”, but in the course of submissions there was reference to the latter. I have used those terms interchangeably as I do not perceive there to be a difference between the two.)
As noted above, the 2019 Dilapidation Report recorded the existence of a basement but made no express mention of its condition.
The 2019 Dilapidation Report confirmed that Mr Zimmerman was satisfied that the work shown on the structural drawings could be carried out without short or long term impact on the Rayman Home. However, Mr Zimmerman emphasised that it was important that the builder carry out the work in a competent manner and take all the skill and care necessary to carry out the work in a safe manner; and adverted to the need for correct interpretation of specifications and instructions.
Scopeview submits that there was nothing in the 2019 Dilapidation Report to suggest that the Rayman Home was unusually vulnerable to damage caused by settlement during shoring and excavation works. Nevertheless, it cannot be disputed that Scopeview was aware (by reference to the Martens Report) of the risk posed by vibrations during the shoring process if sheet piling were to be used and that the initial shoring design provided for contiguous piling as noted above.
Ms Brown notes that the 2019 Dilapidation Report does not address the lower ground level storage, and says that the approved plans do not give proper detail of the footings.

At some stage in December 2019, Mr Brown sought a quote from Mr Doueihi of Scopeview to carry out the construction works. Scopeview is a residential construction company operated by its director, Mr Doueihi. In 2020, it had three employees: Mr Doueihi, a construction manager (Mr Raymond Taroun) and a site supervisor (Mr Jason Maatouk) (see Mr Doueihi’s first affidavit in the proceedings sworn on 23 August 2023 at [4]).
On 18 December 2019, Scopeview was provided (electronically, through a dropbox link by email) with the Development Consent, the Modified Development Consent, the Martens Report and the 2019 Dilapidation Report (see Mr Doueihi’s first affidavit at [10]-[12]). Mr Doueihi’s evidence is that he read the Martens Report and noted, among other things, that Martens did not recommend the use of driven and sheet piles because of vibration impacts (see Mr Doueihi’s first affidavit at [12]). Mr Doueihi accepted that he understood that Martens had recommended a ground vibration peak particle limit of 3 mm/s (29/10/25; T 202.3). (Mr Doueihi gave evidence at the hearing, which Scopeview says should be accepted, that he was “no vibration expert” and, with respect, that is clear from Mr Doueihi’s misunderstanding as to whether 3 mm/s would mean a lower or higher frequency – see below.) Further, Mr Doueihi accepted that he understood that the Martens Report directed attention to the fact that vibrations could be a problem and that care would need to be taken when the excavation works were carried out (29/10/25; T 202.14). Mr Doueihi also deposed that he was provided with the Notice of Determination issued by Waverley Council and referred in his first affidavit to Conditions 13, 14 and 30 of the Development Consent (see his first affidavit at [13]-[16]).
As to the 2019 Dilapidation Report with which Mr Doueihi was provided, he deposed that he noted that the engineer was satisfied that the work could be carried out without short or long term impact on the Rayman Land and that the engineer stated that it was important that the works were carried out in a competent and safe manner taking skill and care (Mr Doueihi’s first affidavit at [18]). Mr Doueihi made no reference in his first affidavit to having noted that the 2019 Dilapidation Report stated that a shoring system had been devised consisting of contiguous piering and strutting; nor that this was to accommodate the integrity of adjoining structures (relevantly including the Rayman Home).
On 19 December 2019, Scopeview issued a quote to Ms Brown for a fixed price of $2,253,482.00 including GST. The quote included to “supply and install continuous [sic] piling to not [sic] undermine neighboring [sic] properties as per engineer details” at a fixed price of $224,800.00 including GST. Pausing here, it is clear that the engineering drawings prepared by Mr Zimmerman provided for contiguous (not sheet) piling and the reference to “continuous piling” must be understood in that context as a typographical error. The quote, which was expressed to expire on 10 January 2020, similarly must be read as making provision for contiguous piling. The amount of the fixed sum quote attributed to shoring and excavation was $224,800.00 including GST. The quote also included demolition (at a cost of $45,100.00 including GST).
On 15 January 2020, Mr Brown sent an email to Mr Doueihi, stating “Hi Cameron, found this report as well”, attaching a PDF copy of the Martens Report as well as a document described in the email as an Acid Sulfate Soils Advice also prepared by Martens. It is not clear why Mr Brown forwarded a PDF copy of the Martens Report to Mr Doueihi at that time (since it was contained in the Dropbox documents the link to which had earlier been provided to Mr Doueihi). However, Ms Rayman emphasises that this demonstrates Mr Brown’s awareness of the Martens Report at that time. Mr Brown’s evidence in cross-examination was that he presumed that Mr Doueihi had requested the documents but he did not know, adding that they must have been important (28/10/25; T 160) (see [288] below).

On 21 January 2020, Ms Brown and Scopeview entered into a NSW Residential Building Contract for New Dwellings (the Contract) for the construction of a new home on the Brown Land and to carry out the works shown in the Modified Development Consent, which involved excavation to approximately 3 m below existing ground level. Ms Brown signed the Contract as owner; Mr Brown did so as guarantor.
The fixed price specified in the Contract was reduced from that specified in the earlier quote to $1,765,982.00 including GST.
Schedule 2 to the Contract, headed “Progress Payments”, included as the first stage “Excavation” and provided for “Bulk Excavation, sheet piles completion” in the amount of $176,598.20. (Ms Rayman points out that this was at a much cheaper cost ($176,598.20) in lieu of the “continuous [sic] pile wall” specified in the quote ($224,800.00).)
Pausing here, in its opening submissions, Scopeview took issue with the suggestion by Ms Rayman that, by 21 January 2020, it had already agreed with “the Browns” to use a sheet piling system because it was cheaper. Scopeview submitted that Ms Rayman’s submission conflated the quoted price with the schedule of progress payments in the Contract, the purpose of which was to provide for milestone payments over the course of the works. However, I note that cl 17.2 of the Contract obliged the owner to pay the contract price progressively as claimed by the builder and that Schedule 2 clearly referred to “sheet piles completion”. That said, insofar as Scopeview takes issue with Ms Rayman’s suggestion that the decision to use sheet piling was because it was cheaper, then I note that Mr Doueihi’s evidence was that he did not believe it was cheaper (see below).
In cross-examination, Mr Doueihi accepted that, by the time he prepared the Contract, he had decided in his mind to use a sheet piling system (29/10/25; T 208.11). That is consistent with the specification of progress payments with reference to sheet piling. What is unclear is whether or to what extent that had been the subject of discussion with, or agreement by, Ms Brown (or her husband) prior to the Contract being signed (although Mr Doueihi’s evidence was that he had discussed the Contract with Mr Brown and had explained sheet piling to him – see below).
Further, the motivation for Mr Doueihi to use sheet piling (as opposed to contiguous piling) was also not clear. In cross-examination, Mr Doueihi said that: he understood the difference between a sheet piling system and a contiguous piling system (29/10/25; T 203); he understood a sheet piling system to be quicker to install than contiguous piling (29/10/25; T 215); and he had used a sheet pile shoring system once before, on a project in Matraville (29/10/25; T 201), but had not previously undertaken a project involving a contiguous pile wall shoring system (29/10/25; T 203). Mr Doueihi did not (unlike the structural engineers who gave evidence) understand the use of sheet piling to be cheaper than that of contiguous piling (29/10/25; T 215).
I note that, in his first affidavit, Mr Brown attributes the decision (by Mr Doueihi) to use sheet piling as due to the time that had been taken by the principal certifying authority (PCA) to get all the documentation “sorted out” and that the schedule was running behind (at [48]).
Clause 13.1 of the Contract (on which Mr Brown places no little weight) provided that the owner (Ms Brown) gives the builder (Scopeview) exclusive possession of the site to carry out the building works. Clause 2.1 provided that the builder must carry out and complete the building works in accordance with the contract. The term “building works” is defined in cl 1.1 as meaning the building works “to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents …”. “Contract documents” included the general conditions, any special conditions, the plans, the specifications and other documents specified in Schedule 5 (of which there were none).
Clause 39, headed “Statutory Warranties”, contained a warranty by Scopeview “to the extent required by the Home Building Act” that the building works will be done with due care and skill in accordance with the plans and specifications attached to the contract; and in accordance and compliance with the Home Building Act 1989 (NSW) (Home Building Act) or any other law.
Clause 40, headed “Mandatory Conditions”, provided under sub-cl 40.1 that, to the extent required by the Home Building Act and subject to sub-cl 40.2, the building works will comply with, among other things, (c) the conditions of any relevant development consent or complying development certified. (Ms Rayman points out that the development consent with which Scopeview was thus required to comply provided for contiguous piling not sheet piling.)

Mr Doueihi deposed that Mr Orr asked him to send the geotechnical report and plans (at [20]). At 10:11am on 31 January 2020, Mr Doueihi sent an email to Mr Orr attaching the Martens Report and a copy of the plans for the works (at [21]). Mr Orr responded to the 31 January 2020 email that it seemed like a “pretty good soil profile” and asked for the site survey.
Pausing here, in cross-examination Mr Doueihi said (for the first time) that he had had a conversation with Mr Orr prior to the signing of the Contract (i.e., prior to 21 January 2020) in which Mr Orr gave him verbal advice as to the feasibility of a sheet piling system for the site (29/10/25; T 209). Mr Doueihi’s evidence was that Mr Orr’s advice was that sheet piling “does work in North Bondi”. Mr Doueihi was challenged on the date this conversation took place.
For such a conversation to have taken place before 21 January 2020 is inconsistent with the terms of the conversation to which Mr Doueihi deposes at [20] of his first affidavit (which suggest that this is the first contact about this project). Moreover, if Mr Orr did indeed give any oral advice in relation to the project prior to the date of the Contract, then it must have been without the benefit of any plans or geotechnical report as there is no evidence that any of those documents had been provided to Mr Orr by then. Scopeview nevertheless submitted that the date “on or about 31 January 2020*”* in [20] of Mr Doueihi’s affidavit is likely to be incorrect (see 29/10/25; T 247.20). I am unable to make such a finding. The fact that Mr Doueihi sent the documents in relation to the project to Mr Orr on 31 January 2020 in my view makes it more likely that the conversation in which he asked Mr Orr to provide a quote for the project was on or about that date, not some ten or so days before.
As adverted to above, by the time Meso was engaged, the only geotechnical report (the Martens Report) was one which recommended against sheet piling and proposed a vibration limit level of 3 mm/s. As Mr Doueihi clearly recognised, the proposed design at that time was for contiguous piling. However, the signed Contract clearly contemplated sheet piling and the construction drawings subsequently issued by Meso set vibration levels at 8 mm/s and 10 mm/s (see below).

On 8 February 2020, Mr Orr sent Mr Doueihi a “Works Summary Document” setting out Meso’s proposed method of shoring (sheet piling). Mr Orr said this was to “share what we know, assume and what needs to be discussed, determined or refined”. Mr Orr asked Mr Doueihi to read this “and then let’s discuss and agree the final details” before he issued a formal Letter of Offer. Mr Doueihi’s evidence is that he read this document and he noted various of its contents (see his first affidavit at [26]-[29]).
In the Works Summary Document, Meso confirmed that it had been asked by Scopeview “to review the documents supplied [by Scopeview] and offer a shoring solution for that project”. The Works Summary Document confirmed that documents reviewed by Meso included the architectural drawings, structural drawings, site survey prior to clearance of the site and the Martens Report (which, as noted, recommended against sheet piling). The Works Summary Document confirmed that Meso’s costs estimate included, amongst other matters, design and certification, supply of all materials to site, placement of all sheet piles and bracing as per the shop drawings (i.e., the Temporary Shoring Plan prepared by IDC).
Under the heading “Vibration Management”, the Works Summary Document strongly recommended consultation with a vibration consultancy firm regarding the impacts of the construction on adjacent structures and in particular with regard to the properties immediately on the eastern boundary (i.e., the Rayman Land) and western boundary (i.e., the Stockley Land). Meso stated that it was also likely that “you will have at least one neighbour who insists that you are causing damage when you are fully complying with the Codes and Standards” (which may perhaps explain, though not justify, the rather dismissive attitude that Mr Orr seems later to have taken when use of sheet piling was queried with him and when simply relying on the vibration reports after damage had occurred – as to the latter, see [335] below – but this is simply speculation).
The Works Summary Document stated that the demolition stage was the stage which represented the highest risk of damage to adjacent structures “in particular the low frequency ground quake caused by the use of hydraulic hammers and falling concrete and the like”. (That observation proved incorrect.)
The Works Summary Document stated that the toe of the sheet pile wall would extend 2 to 3 metres below the bulk excavation level. Meso explained that it was “not really confident” with a cantilever higher than around 2.75 m and opined that any amounts greater than this must be supported either by soil anchors or internal bracing. Meso stated that there were pros and cons for each, but that Meso felt that bracing would be more expeditious. (Mr Doueihi deposed that he had no experience with soil anchors and that he understood they were cheaper but involved drilling into the neighbouring property (see his first affidavit at [27]).) Meso suggested that the basement slab, when constructed, should extend to the sheet piles to brace the sheets. (Mr Doueihi deposed that this was subsequently done when the slab was poured in July 2020 (see his first affidavit at [28]).) In oral submissions, it was suggested that the options of anchors or bracing would not be relevant if one were having contiguous piling (see 27/10/25; T 21) but Mr Appleyard (the expert structural engineer called by Scopeview) said that cross-bracing would be relevant for both types of shoring (30/10/25; T 357.35).
Meso recommended that it finish sheet piling placement prior to the excavation contractor establishing itself on the site given that it was a small site and stated that Meso proposed to use a “smaller” 14 tonne excavator to place the piles. (I note that the Martens Report had recommended that the excavator since be limited to 8 tonnes as it caused less vibration – see [54] above.) The reference to “smaller” in the Works Summary Document was explained by Mr Doueihi as being that Meso had initially proposed to use a 25 tonne excavator (29/10/25; T 214.48).
The Works Summary Document set out a sequence of works which included: the placement of offset pegs showing back of the permanent wall alignments; placing of sheet piles; excavation from the northern end back towards where bracing needed to be placed; excavation of soil to just below bracing level; placement of screw piles; placement of bracing; completion of bulk excavation; completion of detailed excavation and placement of slab on ground; and removal of the bracing. In his evidence at the hearing, Mr Doueihi accepted that it was his responsibility to determine the location of the external basement walls and the distance between the external basement walls and the temporary shoring wall. (Scopeview accepts that the shoring wall nearest the boundary with the Rayman Land was placed approximately 400-450 mm from the boundary. The complaint that is made by Ms Rayman in this regard is that the Temporary Shoring Plan called for the shoring wall to be placed hard up against the external basement walls which were to be built. As adverted to above, other than Mr Dockrill, the engineering experts placed no significance on any discrepancy with the plan in this regard.)
After explaining the sequence of works, Meso advised that the estimated duration of works would be three days for placement of sheet piles after Meso had established itself on site; and that placement of the bracing system would take one day. In fact, Meso took six days to install the bracing.
Scopeview submits that Meso’s Works Summary Document is consistent with Mr Doueihi’s understanding that Meso would undertake the design, certification and installation of the shoring as part of a “complete package” to deliver the shoring system for the works.

On 17 February 2020, Meso emailed to Scopeview a Design Certificate for the Temporary Shoring Design (IDC Design Certificate) and a Design and Analysis Report for the Proposed Temporary Shoring System (IDC Design and Analysis Report) both prepared by IDC. The former provided certification for the Sheet Piling Rev A Plans (which included the sheet pile drawings). The IDC Design Certificate identified that IDC had been provided with: IDC “Shop Drawing” (the Rev A Plans), the Martens Report, Mr Zimmerman’s structural drawings (Rev A) and MASQ architectural drawings (Rev F), as well as a site survey plan.
The IDC Design and Analysis Report noted that Scopeview had engaged IDC to design a temporary shoring system to “allow excavation and construction of the basement and its modelled effects on surrounding structures and utilities”. The IDC Design and Analysis Report was signed by Mr Chang, senior engineer. It recorded the soil parameters of the site as varying from very loose sand, loose sand and medium dense.
The IDC Design and Analysis Report confirmed that the builder (i.e., Scopeview) must ensure that Meso complied with the design considerations and recommendations. Mr Doueihi confirmed that he read the IDC Design Certificate and the IDC Design and Analysis Report (see his first affidavit at [39]). The latter report noted that the temporary shoring was to be required on site for less than six months.
The IDC Design and Analysis Report assumed an “allowable maximum deflection” of 0.5% times the excavation depth. (On Mr Appleyard’s calculations, IDC’s “allowable maximum deflection” equated to 19 mm.) IDC initially calculated the anticipated deflection of the braced sections of Wall 3H (the section of the shoring wall running along the common boundary with the Rayman Land where the excavation was deepest) at 5.54 mm. (Following the identification by EIA on 16 April 2020 of additional layers of dense and very dense sand, IDC revised its assessment of anticipated deflection downwards to 2.29 to 2.46 mm.)
As to the “impact assessment” in relation to existing buildings and utilities, the IDC Design and Analysis Report stated:

There is no evidence that Martens had agreed to “change” its report or had agreed to the use of sheet piling. The highest the evidence goes in this respect is that Mr Zimmerman (not of Martens) had said, in his 17 March 2020 email to Mr Brown, that “[w]e have in principle no issue to separate the shoring system from the structure”.
Further, it is not clear to whom Mr Brown was referring when he said in this email that he had consulted with another engineering company which had been doing sheet piling in the eastern suburbs for many years and which reckoned it was “perfect”. It seems likely that this was a reference to Meso but there is no evidence that Mr Brown had himself spoken with anyone from Meso (as opposed to Mr Doueihi having told Mr Brown that “we have a separate engineer who has signed off on it [sheet piling]”). Nor is it clear what in Mr Brown’s view had “transpired” (which he described as “a lot”) since he had spoken with Mr Quinton the previous night.
Relevantly, what the contemporaneous documents suggest had happened on or around 9 April 2020 was that there was a recognition (by Mr Doueihi) that Condition 13 of the Development Consent required a geotechnical report (containing the requisite statement regarding the stability of the site) and, it seems, a recognition (by both Mr Doueihi and Mr Brown) that the IDC documents providing for sheet piling were inconsistent with the Martens Report and the Zimmerman drawings which provided for contiguous piling. Hence, the need for a “new report” to comply with Condition 13 (and, by 14 April 2020, Mr Brown’s request for help from Mr Quinton to procure further amendment to the Zimmerman drawings – see below).
What is also clear on the face of Mr Brown’s email of 9 April 2020 was that he was (again) positively asserting that he wanted to use sheet piling. (In the witness box, Mr Brown insisted that he wrote this email on Mr Doueihi’s instructions and he did not himself want to use (or was indifferent to the use of) sheet piling but, if so, then he was clearly prepared to misrepresent the position to Mr Quinton since the email unambiguously says “I want to use the sheet piling” (my emphasis) (see cross-examination to this effect extracted at [307] below).)
As to the query in this email as to whether it was “ethical” to get a new certifier, Mr Brown explained this (unconvincingly in cross-examination as being simply a question of politeness on his part (not ethics) (see 28/10/2025; T 173; [308] below)).

On Friday 24 April 2020, at 2:02pm, Mr Weinberg sent an email to Ms McSeveny of BCA advising that drilling had commenced and no structural report on excavations had been received. The email attached a copy of the letter from Waverley Council. There does not seem to have been a response to this email from Ms McSeveny (who by this stage had been replaced as certifier). However, it seems likely that someone raised the issue of lack of notification with either Mr Doueihi or Mr Brown because otherwise the following communications would appear to have come out of the blue.
At 5:40pm on 24 April 2020, Mr Doueihi sent to Mr Brown a number of documents: certificates, the (Rev C) IDC Design Report and Analysis, the EIA Report and the Rev C Structural drawings.
At 6:08pm on 24 April 2020, Mr Brown sent an email addressed to Mr Doueihi attaching the 2019 Dilapidation Report for the Rayman Home and asking whether it was “OK to send”. Significantly, Mr Brown highlighted the fact that it stated that the shoring system that had been devised consisted of contiguous piering and strutting. It is clear from this that Mr Brown must have appreciated at the time that the 2019 Dilapidation Report reference to the design of the shoring system was inconsistent with what was about to take place on the site. (As already adverted to, Ms Brown seeks to explain the request as to whether it was “OK” to send these plans and reports on the basis that Scopeview had “control” of the site but that does not explain the highlighted reference to the difference in the shoring system that was proposed to be used from that referred to in the 2019 Dilapidation Report.)
At 6:23pm on 24 April 2020, Mr Brown sent an email addressed to Mr Weinberg and to Mr Rayman attaching: the Sheet Piling Rev C Plans; the (Rev C) IDC Design Certificate; the (Rev C) IDC Report; the EIA Report; and the 2019 Dilapidation Report (not, I note, the Martens Report).
At 9:33pm, Mr Weinberg sent an email to Mr Brown stating that “[h]opefully [he] will be able to get back to [Mr Brown] by Monday” (i.e., 27 April 2020). (Pausing here, although some criticism appeared to be made in submissions for Ms Brown to the fact that Mr Weinberg referred to being hopeful of getting back to Mr Brown by the following Monday, and it was suggested that Ms Rayman had ample opportunity to seek an injunction to restrain the sheet piling works, it should be noted that the Development Consent conditions required at least seven days’ notice of commencement of excavation works to be given (Condition 26). It is not clear that Ms Rayman, or for that matter her husband and father, appreciated or should have appreciated on the Friday evening that the works would start the following Monday, well before seven days from the provision of such notice had elapsed.)

It does not appear to be disputed that, at around 1:30pm on 28 April 2020, sheet piling commenced on Wall 3 close to the Rayman Home. At around 3:00pm, the vibration levels recorded at the middle of the western boundary of the Rayman Home exceeded the warning level of 8 mm/s. There is no record to suggest work stopped at that point when the alarm warning level was triggered.
Mr Doueihi was not sure if he attended the site on 28 April 2020 (he said in cross-examination that “possibly” he was (29/10/25; T 228)). In his affidavit, Mr Doueihi deposed that he attended the site at some stage on 29 April 2020 and spoke to Mr Blake (VMS) and that he asked Mr Blake for the vibration monitoring data.
The evidence of Ms Rayman and her husband is that huge vibrations were felt by the occupants of their home while the steel sheet piling occurred: paintings fell off walls and candlesticks fell onto the floor and broke; new cracks became visible in the wall above the front door, and basement area; brickwork in the basement became dislodged; the front door was not swinging on its hinges as the frame or floor appeared to have shifted; large gaps became visible between the dining room floor and wall closest to the worksite and between the external patio and wall closest to the worksite and a large crack appeared along the external western wall closest to the worksite.
Scopeview accepts that cracking was observed to the Rayman Home on 28 April 2020 and that the damage was immediate. Similarly, in opening submissions, counsel for Ms Brown said that there was no dispute that the Rayman Home was damaged as a result of the building activities (specifically, the vibrations) on the Brown Land (27/10/25; T 61-62); however, Ms Brown contends that the harm suffered was the responsibility of Scopeview.
Mr Rayman sent an email to Mr Brown at 8:22pm on 28 April 2020 complaining as to the damage to his front door after one day of sheet piling.
On 29 April 2020, sheet piling for Wall 3 continued from 7:00am to 3:30pm. Between 10:30am and 12:30pm, Mr Blake of VMS attended the site to investigate the vibration complaints from the Raymans. At around 12:00pm, the vibration levels recorded at the middle of the western boundary of the Rayman Home reached the halt level of 10 mm/s. Again, there is no record of work stopping at that time.
At 12:34pm on 29 April 2020, Mr Rayman sent an email to Mr Brown stating that the sub floor brick work had come loose beneath the front door section, the floor needed to be re-levelled and brickwork repaired. Mr Rayman said that the builder had asked them to wait for seven days for everything to settle and that then the builder would make repairs.
At around 2:00pm on 29 April 2020, the vibration levels recorded at the rear of the western boundary of the Rayman Home exceeded the halt level of 10 mm/s (a vibration level of 30.8 mm/s being recorded at the site). Again, there is no record of work stopping at that point.
At 2:37pm, Mr Blake sent an email to Mr Doueihi attaching the interim report for the vibration monitoring at the adjoining Stockley Land and confirmed that monitoring was currently being conducted at the Rayman Home. It was noted that on the Stockley Land the highest recorded vibration level was 8.2 mm/s, which Mr Blake said was “well below the corresponding vibration damage criterion of 14.6mm/s”. As to the monitoring at the Rayman Land, it was said that there had been no exceedance of the Operator Halt Site Control Level but one observed trigger of the Operator Warning Level (this seems to relate to the position as at 28 April 2020). However, the email noted minor movement on both neighbouring properties (including the front door of the Rayman Home). The email stated:

In early 2024, Ms Rayman decided to sell the Rayman Land and that cosmetic building works were needed to help maximise any potential sale price.
Ms Rayman adduced evidence of various costs incurred in “cosmetic remedial works” (invoices by Techbuild Projects Pty Ltd (Techbuild)) on 31 May 2024 in the sum of $1,072.50, on 30 July 2024, in the sum of $11,215.00, on 24 August 2024, in the sum of $12,604.00 (patching and painting, rendering brick work in wine cellar and removing and replacing mirrors on shaving cabinets, waterproofing to upstairs balcony, drip trays in garage ceiling, Sikaflex cracking around pool area) and on 19 September 2024, in the sum of $2,494.70 (quad around front of skirting due to lifting caused by movement in foundations and preparing and painting quads).
On 26 July 2024, Ms Rayman entered into a sales agreement with Sydney Southby’s International Realty to sell the Rayman Land, with an estimated selling price range of $6 million to $6.6 million. Marketing costs of $11,670.00 (including GST) were incurred.
On 12 August 2019, Ms Rayman incurred styling costs (including installation and removal of rental furniture) of $10,615.00 invoiced by Jon Paul Interiors.
On 21 September 2024, Daniel Decorations Pty Ltd issued an invoice for further cosmetic remedial works (rendering external work, fixed cracks, Sicaflex, patch up and painting) in the sum of $15,100.00 inclusive of GST.
On 23 October 2024, Ms Rayman entered into a contract for sale of the Rayman Land for $7.45 million. The contract of sale contained a special condition advising incoming purchasers of these proceedings. The purchasers were advised to direct all enquiries about these proceedings to Ms Rayman’s lawyer (Mr Ben-Arie). It appears that prospective purchasers were provided access to the property in order to obtain their own structural engineer’s report; and prospective purchasers were made aware of the nature and extent of the defects.
The ultimate purchasers confirmed on 1 October 2024 that the NAB had valued the Rayman Land, as part of the loan application, significantly below $7 million and said that this valuation “along with the identified building defects from our builder’s structural report” had formed the basis for their initial (lower than $7.45 million) offer, including changed market conditions and economic uncertainty; and they said that their builder had assessed costs for building rectification in the home at a minimum cost of $500,000.00. On 4 October 2024, they advised that they had absolutely no funds set aside for any necessary and planned rectification works. (Ms Brown says that this has no evidential weight; that it does not identify the rectification cost (whether old or new) or estimate; nor how the amount is calculated but she does point out that the letter establishes that a bank valuation was well below $7 million.)
On 27 February 2025, completion of the sale occurred.

Ms Rayman affirmed an affidavit on 30 January 2023. Ms Rayman deposed, among other things, to what occurred on 28 April 2020 when vibrations from the sheet piling caused damage to the house (at [50]-[51]) and to the fact that she was not given any notice of the heavy machinery works (at [50]; [53]). Ms Rayman also deposed to the fact that she did not receive any geotechnical report (at [77]), structural engineering report (at [81]) or notice of commencement of excavation (at [84]) prior to 24 April 2020 (referring to Condition 26 of the Development Consent).
A number of parts of Ms Rayman’s affidavit (addressing the opportunity she asserts she was denied to protect her home from possible damage by reason of the fact that reports and notices were not provided prior to 24 April 2020) were not read following objections thereto by both defendants pursuant to s 5D(3) of the Civil Liability Act. (This is relevant when considering the later submission by Scopeview to the effect that there was no evidence that the Raymans would have taken steps to stop the works had notification been made prior to 24 April 2020 (31/10/25; T 441.20).)
In cross-examination by counsel for Ms Brown, Ms Rayman accepted that she had generally left her husband to deal with the building activities when the Rayman home was renovated in 2010/2011 (28/10/25; T 88). Ms Rayman did not remember that Mr Zimmerman had done the engineering drawings for that renovation and did not really have any knowledge of those drawings (28/10/25; T 88).
Asked about the lower ground floor, Ms Rayman agreed that this was a storage room where her husband had kept wine for sale as part of his (then) business (28/10/25; T 90). Ms Rayman said that she did not frequently go down to the basement (it was her husband’s “domain”) (28/10/25; T 90.36). Pausing here, the lower ground area was referred to from time to time in the course of the evidence as the basement. It comprised two parts separated by a wall – a storage room at the back, where various articles such as suitcases were put, and an area in the front where Ms Rayman said that the wine was kept and where there was a freezer (28/10/25; T 90-91). Ms Rayman said that to her understanding the basement was “perfectly fine structurally” (28/10/25; T 94.30).
Ms Rayman said that prior to 28 April 2020 there was no mould in her home (28/10/25; T 100) but agreed that there was mould in the garage ceiling (the top left corner when looking at the house from the street) prior to that time and that this was to be addressed as a maintenance issue (28/10/25; T 101). Ms Rayman left this issue to her husband and father (28/10/25; T 101-102). Ms Rayman agreed that the mould had become worse over time (28/10/25; T 102) and that ultimately the mould deteriorated to the extent that the ceiling was removed (28/10/25; T 106).
Ms Rayman did not remember if she was shown the documents that were sent by Mr Brown on 24 April 2020 in relation to the excavation but knew that her father had made an enquiry to Waverley Council because there was a concern about sheet piling; and she said that her father and husband had concerns about that issue (28/10/25; T 107-108). Ms Rayman agreed that in her mind there was an immediate connection between the vibrations and the damage to her home (28/10/25; T 110). She described this as a traumatic time and said that she was in a panic (28/10/25; T 107; T 110). Ms Rayman said it was possible that there was a discussion with her father or her husband about stopping the vibrations and she thought that the solution was that they needed to get someone in to have a look at what was going on (28/10/25; T 109-111). Ms Rayman did not think they had thought to call Mr Brown but accepted that she might have had his phone number (28/10/25; T 112).
Asked about the back verandah, Ms Rayman accepted that (prior to 28 April 2020) it had deteriorated in its condition; the wooden support under the slab of the verandah had become exposed and the wood had started to deteriorate; that there was a waterproofing issue on the patio so the wood needed to be replaced; she could not remember how long that had been the case; but that it needed to be attended to and “that’s why we were repairing it” (28/10/25; T 112-113).
Ms Rayman was cross-examined as to a paragraph in her affidavit ([104]) that had not been read, in which she referred to discussing with her husband the possibility of selling her home because of the potential buoyant real estate market at the time (thus reading back into the evidence the paragraph to which objection had successfully been taken – see 28/10/25; T 113-114). Asked whether she had invested in the area because of the potential buoyant real estate market in North Bondi, Ms Rayman said that was not the only reason why they bought the house (28/10/25; T 114.28).
Questioned about whether it was ever her view that the house was in such a condition that it had to be demolished and rebuilt, Ms Rayman said that she was not sure how it was going to be repaired or what to do “because this was our investment” (28/10/25; T 119).

Mr Rayman affirmed an affidavit on 30 January 2023. Mr Rayman deposed that, where he sent an email in his own name relating to the Rayman Home he did so with the agreement of his wife, and that he considered himself a joint owner of the Rayman Home (at [7]). Mr Rayman deposed to the receipt of documents from Mr Brown on or around 24 April 2020 (at [25]) and to his concern that the proposed sheet piling was too close to the boundary wall (at [26]). He also deposed to his experience of the vibrations and observation of the damage sustained within minutes of the sheet piling starting (at [34]-[37]). Paragraphs of his affidavit going to the lack of opportunity to seek professional advice and as to what he would have done had he received professional advice as to the best way to preserve and protect the Rayman Home were not pressed following objection by the defendants thereto.
In a supplementary affidavit affirmed on 5 December 2024, Mr Rayman deposed to his wife’s entry into a contract for the sale of the Rayman Land on 23 October 2024 and to the costs incurred in relation to that sale. Mr Rayman deposed that he and his family would not have had to incur any of these costs had they not been forced to sell the Rayman Land as a result of the financial constraints which the litigation had placed upon them and the failure of the defendants to take due care in carrying out the construction works, excavation and ancillary works at the Brown Land (at [9]).
In cross-examination by counsel for Ms Brown, Mr Rayman said that Mr Weinberg had introduced him to Mr Zimmerman when the Raymans renovated the Rayman Home in 2010 (28/10/25; T 124). He met Mr Doueihi once or twice around the time of the excavation (28/10/25; T 125).
As to the basement where the wine was stored, Mr Rayman said he went there once or twice a week; probably once a week into the storage room (28/10/25; T 125).
Mr Rayman said that Mr Weinberg had explained to him the difference between sheet piling and contiguous piling; he said that his conversation with Mr Weinberg was to try and understand if the Browns were going to use a sheet piling system as they were not clear about that but that from his understanding sheet piling “was not going to be a good system for us” (28/10/25; T 126-127).
Mr Rayman said that he only knew that sheet piling was going to be used when he received the documents sent by email by Mr Brown on 24 April 2020 (28/10/25; T 128). He said that he had a discussion with Mr Weinberg about that; and that they were concerned about sheet piling and its proximity to their boundary (28/10/25; T 129). Mr Rayman said that after receiving the documentation “we were trying to ascertain what … we needed to do and if we needed to engage any … professionals to try and help us understand” (28/10/25; T 129). Mr Rayman believed that Mr Weinberg was following this up but did not recall what he did (28/10/25; T 129). Mr Rayman left the concerns about sheet piling to Mr Weinberg to deal with (28/10/25; T 129-130). Mr Rayman was at home when the sheet piling commenced and said that he assumed the damage to his home was a result of the vibrations (28/10/25; T 130). He agreed that the most certain way to stop further damage was to stop the vibration (28/10/25; T 130) and he contacted Mr Brown that day about the damage to the front door (28/10/25; T 130).
Mr Rayman agreed that he did not have a discussion with Mr Brown as to his concerns about excavation close to the boundary but said that they were trying to get information from Mr Brown as to what they were going to use (i.e., in terms of the shoring system) (28/10/25; T 133).
Mr Rayman did not recall that there was mould in the garage prior to 28 April 2020 (28/10/25; T 136); he said that the front balcony (over the garage facing the street) was not draining properly and there was a failure of waterproofing on the back balcony (which they were repairing prior to 27 April 2020) (28/10/25; T 137-138).
As to the Riverwall quote, Mr Rayman said that he could not understand it and Riverwall did not return his call to discuss it (28/10/25; T 141). Mr Rayman said that Riverwall was sent by Scopeview’s insurers to do the quote (28/10/25; T 141).

Mr Weinberg was a property developer and project manager in South Africa for about 37 years before he emigrated to Australia (see his affidavit affirmed on 24 January 2023 at [12]). Mr Weinberg deposed, among other things, to his observation of the Rayman Home during the period from 2010 to early 2020 (saying that he did not observe any significant damage but noting water staining on the ceiling of the garage which he assumed was the result of water ingress, from which he assumed that waterproofing on the balcony had failed at some point – see [29]-[30]). Mr Weinberg also deposed to his observations on 28 April 2020 and to events after that date. Mr Weinberg did not file any affidavit in response to the affidavit evidence of the Browns (in particular, as to the conversation to which Ms Brown deposed in which Ms Brown says he told her that if the Browns went ahead (with the works) they would build his daughter a new house – see [327] below).
In cross-examination by counsel for Ms Brown, Mr Weinberg confirmed that he had contacted Waverley Council in March 2020 because he understood that the shoring system was going to change (28/10/25; T 146). He said that Mr Zimmerman called him and told him that there was a change in the shoring system and that Mr Zimmerman said that it was going to cause problems (28/10/25; T 146). Mr Weinberg said that he did not ask Mr Zimmerman for the documents and did not try to locate the documents (28/10/25; T 146-147).
Mr Weinberg recalled seeing the documents sent by Mr Brown on 24 April 2020 (28/10/25; T 147). He said that when he received the documents he had a discussion with Mr Rayman and said to him that he had contacted the certifier to say that he had been advised that the system was not adequate and the certifier needed to investigate (28/10/25; T 147).
Mr Weinberg said that he was not aware, on the Friday (24 April 2020), that sheet piling was going to commence the following week (28/10/25; T 148).
Asked about the conversation to which Ms Brown had deposed in her affidavit (see below), in which she says Mr Weinberg said to her that the Browns would be buying his daughter a new house, Mr Weinberg recalled that Ms Brown had come to his house one day and they had a conversation (28/10/25; T 148). He disputed her account of the conversation but accepted that he had not disputed it in an affidavit (and he was not asked what his version of the conversation was) (28/10/25; T 148).
Asked about staining on the plasterboard ceiling in the garage, Mr Weinberg said he assumed it was the result of a waterproofing failure (28/10/25; T 146). He agreed that the condition of the Rayman Home was accurately depicted in the 2019 Dilapidation Report (28/10/25; T 149).
Asked about the damage to the home when the sheet piling started, Mr Weinberg said that he assumed that one way to stop further damage would be to stop the sheet piling (28/10/25; T 149). He said that he called the certifier that day and the certifier said that he had not given permission to start (28/10/25; T 149). (This presumably was a reference to BCA or Ms McSeveny – the former certifier since Mr Weinberg’s email of 24 April 2020 was sent to her and there is nothing to suggest Mr Weinberg was aware of Mr Chidiac’s involvement by then.) Mr Weinberg agreed that he had not included reference in his affidavit to such a conversation with the certifier. Mr Weinberg agreed that he did not speak to Mr Brown (28/10/25; T 149).

Mr Brown also deposed that Mr Doueihi said that he had done this a number of times and “just leave it to me” (at [48]).
Pausing here, the timing of this conversation (i.e., as early March 2020) is not consistent with the fact that the Contract itself provided for progress payments that included payment referable to sheet piling but in any event it is clear that by no later than 17 March 2020 Mr Brown’s attention had been squarely drawn to the distinction between sheet piling and contiguous piling (see his email on 17 March 2020 to Mr Doueihi). This conversation is also inconsistent with the submission made (for Ms Brown) that there was no “change” but only ever a recommendation in relation to the piling system to be used (31/10/2025; T 419).
At [56], in a paragraph read only for the fact of the conversation not its truth, Mr Brown deposed that Mr Doueihi advised him in early March 2020 that he had received engineering advice and that the sheet piling system was his responsibility and under his control using the best possible methodology. This seems likely to have been a reference to Mr Orr’s discussion with Mr Doueihi whenever that occurred.
At [98], referring to the email he had sent to Mr Doueihi on 1 March 2020 as to whether he could send to Mr Stockley a copy of the geotechnical report and details of bulk excavation in response to Mr Stockley’s query, Mr Brown deposed (as referred to above) that he also “telephonically ask[ed]” Mr Doueihi whether he could send the documents to the Raymans and that Mr Doueihi said “no, he would take care of it”.
As noted above, at [18] of his first affidavit, Mr Brown deposed that he did not read or understand all the reports submitted to the Council (for the development application). Cross-examined as to this, Mr Brown gave the following evidence. As to the Martens Report, Mr Brown said that he did not read it; that he “glanced through it” but that it was too complicated to understand (28/10/25; T 151). As to the Development Consent issued on 27 February 2019, Mr Brown said that he read it “most probably” (28/10/25; T 152). As to the Modified Development Consent issued on 25 September 2019, Mr Brown said that he definitely read this document and agreed that he understood it was an important document (28/10/25; T 153).
Mr Brown understood what a construction certificate was and understood in 2019 that he needed a construction certificate before he could start works (28/10/25; T 154).
Asked whether he took it upon himself to ensure that the development conditions were satisfied, Mr Brown asked me whether he could “intervene” and then said that he did not do this – that for a construction certificate “apparently you needed … thousands of documents”; that he employed MASQ “to get it all together” and that they “basically did the work” to arrange this and “they put it all together and sent me numerous bills to pay all these people” (28/10/25; T 154-155). Mr Brown described his role as being “kind of … getting this stuff together, making sure that they do it on my behalf, which they charged me for” (28/10/25; T 154-155).
Pausing here, this is one of a number of instances where Mr Brown appeared to argue his wife’s case; here, describing his role in effect as a paper pusher.
Asked whether his role extended in part to ensuring compliance with some of the conditions in the Development Consent, Mr Brown answered “[i]t was a while ago but I’m pretty sure, yes” (28/10/25; T 155). Mr Brown accepted that he had some role to perform in satisfying Condition 6 in relation to owner contributions (28/10/25; T 155). Asked whether he understood that Condition 13 required a geotechnical report to be provided to certain people (which Mr Brown accepted would include Ms Rayman), Mr Brown initially said that he could not recall it but then said “I did understand it. To the best of my knowledge - yeah, I did - I do - now that I’ve read it I kind of understand it a bit better” (28/10/25; T 156). Similarly, Mr Brown confirmed that he read Condition 14 back in September 2019 (28/10/25; T 156). He said that he did not understand back in 2019 what the term “principal certifying authority” meant, saying, “[a]t the time I didn’t understand who that person was. I figured - I, I did find out afterwards that that’s the person that MASQ was compiling all these documents for” (28/10/25; T 156). Mr Brown accepted that during the course of the project he gained an understanding that the term “PCA” was the certifier (28/10/25; T 156).
Taken to Condition 26, Mr Brown’s evidence was that he understood at the time what excavation meant and he understood the requirement in the document to give adjoining owners at least seven days’ notice before excavation occurred below the base of the building (28/10/25; T 157). Mr Brown added that (28/10/25; T 157):

Mr Brown said that he did not understand what a shoring system was (cf his evidence that Mr Doeuihi had explained the Contract to him before it was signed) and did not understand to what “contiguous piering and strutting” referred (28/10/25; T 158).
Mr Brown agreed that he had asked Mr Doueihi for a quote and had made available to him on Dropbox certain documents which he was “guessing” were the documents MASQ had completed to get the Development Consent (28/10/25; T 158). Mr Brown agreed that he read the quote issued by Scopeview on 19 December 2019 (albeit saying “[n]ot carefully, but I had read it), and he then volunteered that “the price was right” (28/10/25; T 159). Asked whether one of the most or more important aspects in his decision making with respect to this development was the price, Mr Brown gave the somewhat non-responsive answer that “[o]ut of the quotes that we had got already, this one was, this was the cheapest” (although he had earlier appeared to accept that this was the first time or one of the first times that he had been given a price for the project) (28/10/25; T 159).
Mr Brown was cross-examined as to the reference in the quote to shoring and excavation. He said, qualifying his earlier answer that he did not read the quote carefully, that “Okay, let me rephrase this. Sorry, your Honour. I did read this document. I did understand this document. 100%” (28/10/25; T 159). Mr Brown accepted that he read the information in the quote about demolition, shoring and excavation and concreting and that he saw that the builder, under “shoring”, proposed to install “continuous [sic]” piling (28/10/25; T 159). Mr Brown said that he did not understand to what that referred at the time (28/10/25; T 159).
When it was put to Mr Brown that he certainly understood that this “continuous [sic] piling” was not going to undermine the Rayman Land, because that is what the document was saying, Mr Brown (in another non-responsive answer) said, “I didn’t understand how buildings worked. I had employed someone to take a piece of property that we bought and put a house on it” (28/10/25; T 159.31-35).
Mr Brown agreed that he was content with the $2.25 million price that had been quoted (28/10/25; T 159).
Mr Brown estimated that in the Dropbox provided to Mr Doueihi there would have been more than 20 documents and he accepted that, on 15 January 2020 at 5:01pm, he had emailed to Mr Doueihi two of the documents extracted from the Dropbox (the Martens Report and an acid sulphate soils advice) (the email saying “Cameron, I found this report as well”) (28/10/25; T 160-161). Mr Brown was unable to say why he had emailed these documents to Mr Doueihi. Mr Brown presumed that Mr Doueihi had requested them, saying that (28/10/25; T 160):

Pausing here, in submissions it was argued for Ms Brown that all Mr Brown did was ensure that all the relevant parties were aware of the communications; it was said (echoing Mr Brown’s evidence that he was a conduit for communications) that Mr Brown had no expertise to make a decision, no basis for doing so and was “no more than a scribe” for Scopeview, who had assumed all the responsibility. For Ms Brown it was submitted that notification was the duty of Scopeview and that Mr Brown “diligently passed on” the notifications as soon as they were received.
Mr Brown appeared to accept that he knew that Mr Doueihi was asking him to arrange to have one consistent shoring design put to the certifier to certify it (saying, “Yes, … I guess you can only have one design being done”) (29/10/25; T 187). Mr Brown also then said that Mr Doueihi “asked me to do it. He didn’t pressurise me” (29/10/25; T 187) (cf his earlier evidence that Mr Doueihi “put a lot of pressure” on him to write the email to Mr Quinton (28/10/25; T 162; see [292] above)). As to the alleged pressure by Mr Doueihi on Mr Brown to write the 9 April 2020 email, Mr Brown subsequently resiled from this suggestion.
Mr Brown accepted that it was not Mr Doueihi’s role as the builder to tell the client which certifier to use and said that the issue with the original certifier (Ms McSeveny) was that it was taking too long to obtain a determination from her as at 9 April 2020 (29/10/25; T 187). Mr Brown accepted that Mr Doueihi provided him with Mr Chidiac’s details from Keystone as an alternative certifier but did not accept that ultimately it was him (either on his own or in conjunction with MASQ) who actually made the decision to engage Mr Chidiac (29/10/25; T 188).
Counsel for Scopeview then put the following propositions to Mr Brown arising from his evidence the previous day, each of which Mr Brown denied: first, that it was not the case that Mr Doueihi told him not to send the IDC structural engineering report and the 2019 Dilapidation Report to the Raymans and, second, that it was not the case that Mr Doueihi told him that he must not send those reports to the Raymans (29/10/25; T 188).
As will be seen, this was by no means the last evidence on the topic of what Mr Doueihi told Mr Brown as to the sending of documents to the Raymans.

Ms Brown swore an affidavit on 31 July 2023. Ms Brown deposed that emails written by Mr Brown in this matter were written on her behalf and with her consent, save as otherwise stated (at [2]); and, at [14], that emails written by her husband in this matter were on her instructions and/or in consultation with her. Ms Brown also deposed that at all material times her husband was instructed by her to attend to the administration of the proposed new Brown home and demolition of the old Brown home (at [15]). Ms Brown deposed that from time to time she would consult with her husband and the professionals in planning the design and concept planning for the new home but left all the details with her husband to record (at [16]).
Ms Brown deposed to a conversation with the foreman (Jason) prior to commencement of the earthworks in which she asked if he had notified the neighbours that the earthworks were about to start and he said that he had personally informed each one of the neighbours (at [23]). In context, this conversation must have been sometime around April 2020 (as the earthworks began in late April 2020). However, it appears that Ms Brown had notification of the neighbours in mind as early as 20 February 2020 since on that date she took a photograph on her phone of Condition 14(c) of the Development Consent and sent it to Jason (see [24] and Annexure A to her affidavit, that being a photograph of the requirement in Condition 14(c) of the Development Consent).
Ms Brown also deposed to a conversation with Jason (which she placed as being sometime shortly after 20 February 2020) in which she says he informed her that a Council member had just been there and the Council member had said he was contacted by Mr Weinberg.
Following this conversation, Ms Brown says she went to Mr Weinberg’s house (also on Gilgandra Road) and had a conversation with him (at [26]). Ms Brown’s account of the conversation is that Mr Weinberg told her that Mr Zimmerman was a personal friend of his and had told him of the proposed sheet piling. Ms Brown deposed that Mr Weinberg told her that he had not received any formal notice; that “I have a thick file on you already” and that “[i]f you go ahead, you will build my daughter a new house” (at [26]). Ms Brown deposed that she went home and called her husband and asked him to send a notification to Mr Weinberg about the sheet piling. (Pausing here, if this conversation was on or around 20 February 2020, then it is difficult to reconcile with the timeline of events in relation to the 2 March 2020 notification to Mr Stockley and the disputed 2 March 2020 conversation – since it makes no sense that Mr Brown would do nothing in response to such a request until prompted by an enquiry from one of his other neighbours about notification. However, no further light was shed on this.)
It was apparent from her oral evidence that Ms Brown had very little or no recollection (or, for that matter, understanding) of the documents relating to the development of the Brown Land. Ms Brown said that she had read the Development Consent but did not know the purpose of a construction certificate; Ms Brown did not remember seeing other documents (pp 14, 98 of the opening bundle); and Ms Brown said she had seen the quote from Scopeview but was not really involved in the build of the house or anything to do with the builder. Ms Brown had been involved in a previous property development some 24 or 25 years ago and had undertaken some kind of training session for owner/builders but did not think she ever did anything in relation to that build. Ms Brown accepted that she must have seen the notice of commencement that she signed but did not understand or read it and said she signed because she trusted her husband and the builder to take charge of everything to do with the house and “if he said sign something I did” (29/10/25; T 197).

Mr Doueihi swore an affidavit on 23 August 2023. In that affidavit, Mr Doueihi deposed to having received various documents through a Dropbox link by email prior to signing the contract with Ms Brown (the Martens Report, Development Consent and the 2019 Dilapidation Report) and to having read and noted various parts of those documents, including that Martens did not recommend the use of driven and sheet piles because of vibration impacts (at [10]-[18]).
Mr Doueihi deposed to having a conversation with Mr Orr of Meso on about 31 January 2020 in which Mr Doueihi says he said words to the effect that he had a bulk excavation project in North Bondi and “[a]t the moment, it’s designed as contiguous piles” and asked Mr Orr to quote for it (at [20]).
Mr Doueihi deposed that he received the temporary shoring plan from Mr Orr on 7 February 2020 and that it provided for the installation of sheet pile walls (at [22]-[24]). Mr Doueihi also deposed to receipt of the Meso Works Summary Document and that he noted various aspects of that document (at [26]ff). At [31], Mr Doueihi deposed that he noted that Meso expected the placement of the sheet piles to take three days from Meso establishing itself on site but that his recollection is that the piling works in fact took longer, approximately five days.
As referred to earlier, Mr Doueihi deposed that, having reviewed the temporary shoring plan and Works Summary Document, the IDC Design and Analysis Report for the Temporary Shoring System and the IDC Design Certificate for the Temporary Shoring Design, he made the decision to proceed with the shoring plan recommended by Meso (at [39]).
Mr Doueihi deposed that after receipt of an email exchange, copied to him, between Mr Orr and Mr Burgess of Martens, on 9 April 2020 he called Mr Orr and asked him to get approval from Martens and to speak to him about the sheet piles (at [42]-[44]). Mr Doueihi deposed that Mr Orr told him to send the Geotech Condition in the Council Development to show sheet piles are allowed by the Council (at [44]). Mr Doueihi deposed that he understood from Mr Burgess’ response on 14 April 2020 that there had been a conversation between Mr Burgess and Mr Orr (at [46]). After that, Mr Orr recommended engaging EIA to carry out the further geotechnical investigations recommended by Mr Burgess (at [47]).
As to the installation of the sheet piles, Mr Doueihi said that he was on site almost on a daily basis during the piling works and recalled one occasion (on a date he did not recall) where an alarm sounded and work stopped straight away (at [68]-[71]). Mr Doueihi deposed that he observed that a Meso representative on site made a phone call and (in evidence admitted for the fact of communication not its truth) that the Meso representative said words to the effect that: “It’s all fine. The alarm rang in error” (at [72]).
At [75], Mr Doueihi deposed to a conversation with Mr Orr on about 29 April 2020 about the complaint made by Mr Rayman as to damage to his front door, in which Mr Doueihi said that Mr Orr said “[e]verything is fine, we’ve got the vibration reports”.
In cross-examination by counsel for Ms Rayman, Mr Doueihi said that he had not had previous projects with MASQ (29/10/25; T 200); he had read previous geotechnical reports and understood their purpose to be for soil testing; he read that there was a “P” site classification and that the use of driven piles and sheet piles was not recommended due to adverse vibration impacts on neighbouring structures (29/10/25; T 201).
Mr Doueihi said he understood at the time what a sheet piling shoring system was (29/10/25; T 201). He had used one once before on a property in Matraville (29/10/25; T 201). He said that by 15 June 2018 he had probably built 10 to 12 new homes (29/10/25; T 201).
Mr Doueihi understood that Martens had recommended to limit excavator size to 8 tonnes and that Martens recommended a ground particle vibration limit of 3 mm/s (29/10/25; T 201-202). Mr Doueihi did not understand at the time what the latter meant (“I’m no vibration expert”) but did understand that vibrations could be a problem for the site and that care would need to be taken when the excavation works were carried out (29/10/25; T 202). Mr Doueihi said that he did “gaze over” the Development Consent but did not really read over it too much (but then suggested he did read it carefully) (29/10/25; T 202).
Mr Doueihi understood that the engineering drawings called for a contiguous pile wall shoring system but prior to 2018 he had never done a contiguous pile wall (29/10/25; T 203).
Mr Doueihi saw the Modified Development Consent and the 2019 Dilapidation Report before he provided his quote (29/10/25; T 204). He did not inspect the basement of the Rayman Home before commencing construction works (29/10/25; T 205).
Mr Doueihi and his project manager at the time created the contract document (29/10/25; T 206). Mr Doueihi suggested that the reference in the contract to sheet piles “could have possibly been an error at the time, maybe” (inconsistent with his evidence shortly after this that it was definitely in his mind as at that time to use sheet piling – see [342] below) but said that he was definitely in contact with the sheet piling contractor (i.e., Meso) at the time (i.e., at the time of the Contract) (29/10/25; T 207-208). Pressed as to whether he had spoken to the sheet piling contractor by 21 January 2020 (the date of the Contract), Mr Doueihi said (in an example of a somewhat contradictory response) “[c]ould have been, could have been, yes, maybe” before maintaining that in January 2020 he was in contact with the sheet piling contractor (29/10/25; T 207-208).
Mr Doueihi agreed that, by the time of the Contract (21 January 2020), he had decided to use a sheet piling system (which is inconsistent with the suggestion that the reference to sheet piling in the contract was in error at the time) (29/10/25; T 208). Mr Doueihi said that he did so with expert advice (notwithstanding, I note, that the Martens Report, the engineering plans and 2019 Dilapidation Report were all to the opposite effect) (29/10/25; T 208). Mr Doueihi said that, by 21 January 2020, Mr Orr of Meso had provided verbal advice to the effect that “we do a lot of work in North Bondi and sheet piling system does work in North Bondi” (29/10/25; T 208-209). Mr Doueihi was unable to say what plans or information Mr Orr had at that time but he was adamant that “in [his own] head” he (Mr Doueihi) had definitely decided to do sheet piling by 21 January 2020 (29/10/25; T 209). He acknowledged that this was against the express warning of Martens but said “I got other advice” (29/10/25; T 209).
Mr Doueihi did not raise vibration levels with Meso at the time (29/10/25; T 213). Mr Doueihi said that they could not put sheet piling up against the wall of the property and that usually they try to place it around 200 mm/s away for drainage (29/10/25; T 213-214). He said that use of a 14 tonne excavator was based on EIA’s Geotech report (and that it was originally a 25 tonne reduced to a 14 tonne excavator) (29/10/25; T 214).
Mr Doueihi accepted that sheet piling is quicker to install but said that, as to cost, the two shoring systems were on par (which is inconsistent with Mr Brown’s recollection that Mr Doueihi told him that sheet piling would cost more but he would do it for the same price) (29/10/25; T 215).
Mr Doueihi explained that he had asked the certifier to provide the staged demolition construction certificate (25 February 2020) urgently because the demolition contractor was waiting and he did not want to lose the booking time to get him in (29/10/25; T 216).
As to the Rev C drawings sent on 21 April 2020, Mr Doueihi said “we read them but not … in detail” (29/10/25; T 220).
Mr Doueihi said that he knew that Conditions 13, 14 and 30 needed to be satisfied prior to issuing a construction certificate and accepted that he was on notice on 1 March 2020 that Mr Stockley had contacted Mr Brown and had drawn his attention to those conditions (29/10/25; T 225-226). Mr Doueihi said that he was “not sure” whether, when the construction certificate was issued, he knew that excavation details had not been provided to the Raymans (29/10/25; T 225). He said he did not make any enquiries (29/10/25; T 225). His memory was that “we did do doorknocking on all the neighbouring properties letting them know that we will be starting construction, sheet piling and excavation” (29/10/25; T 226). Mr Doueihi accepted that he did not provide sheet pile drawings or plans to either of the neighbouring owners (29/10/25; T 226). Mr Doueihi was not sure whether that was something that he had to do under the Development Conditions but accepted that he understood that Conditions 13 and 14 had to be satisfied (29/10/25; T 226-227).
Mr Doueihi was not sure if he was on site on 28 April 2020 but said “possibly” he was (29/10/25; T 228). He said that his foreman, Jason, was definitely on site (29/10/25; T 229). Mr Doueihi did not attend the meeting referred to in the Meso internal record of 28 April 2020 (see above [187]) and his only source of information about that meeting was his foreman, Jason (29/10/25; T 229).
Mr Doueihi was then cross-examined by counsel for Ms Brown. He gave evidence that, when he first discussed the building project with Mr Brown, he had discussions with Mr Brown about the Contract; that both of them went through it together; and that he believed Mr Brown appointed a lawyer to go through the terms of the Contract (this last is consistent with Mr Brown’s evidence that he sent the Contract to Mr Rod – see above) (29/10/25; T 231-232). Mr Doueihi said that he sent Mr Brown the Contract by email and they discussed “payment terms” and “stuff” (29/10/25; T 232).
Mr Doueihi accepted that he had already included sheet piling as a contemplated shoring system in the Contract (29/10/25; T 233). He said that he discussed that with Mr Brown and that he explained to Mr Brown what sheet piling was (29/10/25; T 233). Asked if he had explained what the difference was between sheet piling and contiguous piling, Mr Doueihi said (29/10/25; T 233):

At the hearing of the notice of motion on 20 March 2026, objection was taken to portions of Mr Rod’s affidavit (on which I made rulings including as to portions that it was said, and I accepted, went beyond the scope of the limited leave to reopen). There was also an objection to the whole of the affidavit pursuant to s 138 of the Evidence Act 1995 (NSW) (Evidence Act) on the basis that the evidence had been improperly obtained in contravention of various rules under the Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Solicitors’ Conduct Rules) (r 22.4, prohibiting communications with a party represented by or known to be indemnified by an insurer (without the signified willingness of the party and the insurer); r 25.1, prohibiting communications with a person known to be represented by another practitioner (without that practitioner’s consent); and r 33.1, prohibiting a practitioner conferring with more than one lay witness at the same time about matters likely to be contentious at a future hearing). I formed the view that it was necessary to know more about the circumstances in which Mr Rod came to confer and communicate with Mr Doueihi in order to rule on the s 138 objection and deferred that until after the reopened hearing, treating it in the interim as provisionally admitted. I deal with that objection in due course. For the present, however, I summarise the contents of Mr Rod’s 9 February 2026 affidavit taking into account the rulings made to the more particular objections.
Mr Rod deposed to various matters relating to the settlement between his client and Scopeview and as to the hearing. (Those portions of his affidavit were in due course rejected as going beyond the scope of the leave.) Then, from [12], Mr Rod deposed to a “post-hearing telephone call from Witness”, that witness being Mr Doueihi. This was a reference to a telephone conversation on 18 November 2025.
Mr Rod deposed that, on 18 November 2025, Mr Brown called him and Mr Brown advised him that he was in a meeting with Mr Doueihi and that Mr Doueihi was very upset with the way in which he had been cross-examined and his responses to some of the questions put to him during cross-examination which were not accurate (at [14]).
Mr Rod deposed that, during the call, Mr Brown put his phone onto speaker phone mode and that Mr Brown asked Mr Doueihi to tell him what issues in his evidence were not correctly conveyed to the court (at [14]). Mr Rod deposed that he advised Mr Doueihi that it was not appropriate for him (Mr Rod) to talk to him or to advise him and that he should seek independent legal advice (at [14]). Mr Rod deposed that Mr Doueihi advised him that he had already obtained independent legal advice and that he simply wanted Mr Rod to listen to what he was saying (at [14]). Mr Rod deposed that Mr Doueihi said, “My evidence at the trial on 29 October 2025 was not accurate and could be misleading and I wish to correct those aspects of his [sic] evidence at the trial” (at [14]).
Mr Rod deposed that he again advised Mr Doueihi that he should be talking to his legal team and that Mr Doueihi said “I feel that the lawyers have let me down as they had represented their “real client”, the insurers and not consulted me about the terms of the Deed of Settlement” (at [15]).
At [17]-[18], Mr Rod deposed that Mr Doueihi said “I had a telephone conversation with [Mr Brown] on 2 March 2020, during which I said [Mr Brown] did not need to notify the adjoining owners at [the Rayman Land] of the proposed excavation works, and would provide that notification myself” and that Mr Doueihi stated that he now realised that such a conversation had occurred.
Mr Rod deposed that, as an officer of the Court and pursuant to the Solicitors’ Conduct Rules (rr 19-21), he considered that the court must be informed of these matters “as the evidence given by [Mr Doueihi] at trial was materially incorrect” (at [24]).
Annexed to Mr Rod’s affidavit was a typed note of the conversation. That typed note included that (after Mr Brown had said words to the effect that Mr Doueihi was very upset about the evidence he had given in court and wanted to speak to Mr Rod), Mr Rod started by saying “I have to let you know that I cannot speak with you. You need to obtain advice from an independent lawyer”; that Mr Doueihi said he had already consulted an independent lawyer; and that Mr Doueihi asked Mr Rod just to listen to what he had told Mr Brown.
Mr Rod’s note records that Mr Doueihi said “I was extremely uncomfortable with what had happened in court because I felt that the way I had phrased some of my responses did not accurately reflect what had occurred” and that “[Mr Brown] has given me a copy of the transcript of my evidence”; that he (Mr Rod) had said to Mr Doueihi that he was legally represented and needed to speak with his own lawyers; and that Mr Doueihi told him that he felt let down by his solicitors and felt they had pulled the wool over his eyes and were representing the interests of “their real client, the insurer” and that he was afraid that if he approached the solicitors to correct his evidence “the insurer will come after me”. Mr Rod’s note records that he said “I really think it be appropriate for you to again [sic] talk to your independent legal advice [sic]. If you are not happy with advice received to date, I can recommend several solicitors you could speak with”. The note goes on to record the following, framed as a quote of what Mr Doueihi is recorded as having said:

In his first reopening affidavit sworn on 9 February 2026, Mr Brown set out the following chronology of his communications with Mr Doueihi in November 2025.
At [4], Mr Brown deposed that, on 5 November 2025, when he was overseas, he received two missed calls from Mr Doueihi.
Mr Brown then deposed under the heading “11 – 13 November 2025”, that: on 11 November 2025, he and Mr Doueihi exchanged several calls in which they discussed their “impressions of the trial” (at [5]) and, on 13 November 2025, Mr Doueihi said to him “I want to correct matters which I believe have been inaccurately presented” (at [6]). Seemingly related also to the 13 November 2025 call (by reference to its context in the account here given), Mr Brown deposed that Mr Doueihi asked whether he (Mr Brown) could put him (Mr Doueihi) in contact with a lawyer who could provide him with advice about changing his evidence (at [9]) and said that “I am willing to do whatever is necessary to demonstrate that I was the responsible person and I need to correct the record without exposing myself to unnecessary risk” ([10]).
Mr Brown deposed that, during the same telephone conversation on 13 November 2025, Mr Doueihi said to him “I had assumed the certifier had handled neighbour notifications because I had seen an email suggesting they were aware of it” (at [11]).
Under the heading “17 November 2025 – Telephone Call”, Mr Brown deposed that, on 17 November 2025, Mr Doueihi said to him “[t]he failure to send neighbour notification emails was just an administrative error and that Scopeview had done everything “by the book”” (at [16]). Mr Brown deposed that Mr Doueihi said he recalled the conversation they had had on 2 March 2020 and that he said to Mr Brown “[d]on’t worry leave it with me” (at [17]). Mr Brown also deposed that Mr Doueihi said to him that he had consulted with an independent lawyer “and that independent lawyer had told him that correcting his evidence would not alter the case because the matter was based on facts and expert evidence and might expose him to legal consequences” (at [18]).
As to the conversation on 18 November 2025, Mr Brown deposed under the heading “18 November 2025 – Meeting with CD and DR”, that: Mr Doueihi came to his residence (with no mention of Mr Sara) and he, Mr Brown, called Mr Rod while Mr Doueihi was with him (at [20]); Mr Rod said “I cannot speak with [Mr Doueihi], he needs to consult an independent lawyer” (at [21]); Mr Doueihi “insisted” and said that he has consulted a lawyer (at [22]); and Mr Doueihi “confirmed” to Mr Rod that “during our call on 2 March 2020, when [Mr Brown] asked about notifying the neighbours, I said to [Mr Brown]: leave it with me” (at [23]).
Mr Brown deposed to another conversation with Mr Doueihi (under the heading “21 November 2025 – Two-Hour Call” in which he said Mr Doueihi said “I remember the 2 March 2020 conversation I forgot about that under cross examination” (at [26])).
Mr Brown deposed that between late November and mid-December 2025 he had many further calls with Mr Doueihi (at [27]). Under the heading “Meetings and Office Call (time frame)”, Mr Brown deposed that at a later in-person meeting Mr Doueihi said to him “[s]ome facts at trial did not come out as intended” (at [29]) and that on a speaker phone call to his (Mr Brown’s) office Mr Doueihi said “I want to correct my evidence” (at [30]).

Ms Brown then filed two affidavits in reply: an affidavit affirmed on 18 March 2026 by Mr Rod responding to various matters set out in Mr Doueihi’s affidavit of 26 February 2026 and an affidavit affirmed on 19 March 2026 by Mr Brown.
In Mr Brown’s reply affidavit, Mr Brown deposed as follows concerning the communications he had with Mr Doueihi following the hearing in these proceedings, stating that the purpose of his affidavit was to “place before the Court evidence which is relevant to assessing the evidence given by Cameron Doueihi at trial and in his affidavit, evidence of 26 February 2026” (at [7]). Parts of the affidavit in reply repeated content in his first reopening affidavit but there were some significant additions thereto.
Mr Brown deposed that, after the trial he went overseas and that he was contacted twice by Mr Doueihi while overseas and that he did not take his calls (at [8]). At [9], he deposed that “[e]ventually, on 13 November 2025 and 17 November 2025” he spoke to Mr Doueihi.
Mr Brown annexed telephone records that he said evidenced those calls (seemingly referring to the communications on 11 to 13 November 2025 as per the heading to [10]).
Mr Brown deposed that, on 13 November 2025, he had a conversation with Mr Doueihi in which he said words to the following effect, “I want to correct matters which I believe have been inaccurately presented” and “I am willing to do whatever is necessary to demonstrate that I was the responsible person and I need to correct the record without exposing myself to unnecessary risk” (at [11]). (This repeats what Mr Brown deposed to in the first reopening affidavit (see above).)
As to the 17 November 2025 conversation, Mr Brown deposed that it was a lengthy telephone conversation and that, during that conversation, Mr Doueihi made a number of statements which he (Mr Brown) clearly recalled: that Mr Doueihi had told his independent lawyer that he wanted “to make himself a bit more clear” (at [15]); that Mr Doueihi thought he had thrown Mr Brown “under the bus” (at [16]); and that Mr Doueihi wanted to give an “affidavit to his lawyers” to “rectify the wrong impression” he may have created and said “I really need to be careful what I say” (emphasis as per Mr Brown’s affidavit) (see [13]-[16]; [18]).
Mr Brown then referred to his evidence at the hearing as to the telephone conversation of 2 March 2020 and to the fact that it was put to him that his evidence that Mr Doueihi had told him to “leave it to me” (in response to his question “what about Errol and Avron?” was said not to be truthful (at [19]-[20])).
Mr Brown deposed that during the conversation on 17 November 2025 he said words to Mr Doueihi to the effect “Cam, I would have sent it … I wanted to send it to everyone … you said ‘leave it to me’” and that Mr Doueihi responded, “Yeah, that’s right Jonathan … that’s right … and even if I did say it and it did not get sent …” and that Mr Doueihi said that “the failure to send neighbour notification emails was just an administrative error” (at [22]).
At [24], (which I read subject to relevance), Mr Brown deposed that, on 17 November 2025, Mr Doueihi said to him that he did not want “another lawyer” but that he had spoken to an independent lawyer, whose name he would not say, and that this lawyer’s advice was “you have given your evidence and you shouldn’t be tampering with it”; and that he (Mr Doueihi) said that he later spoke to another independent lawyer for an hour; and, of this lawyer that “she is completely independent”; and said that “the judge put no weight on ‘leave it with me’” (at [24]).
At [32], Mr Brown referred to [44] of Mr Doueihi’s affidavit (as to the reason Mr Doueihi had come to his (Mr Brown’s) place on 18 November 2025) and said that the reason Mr Doueihi came to his place “was not only to inspect the planter box” but also because, on or about 13 November 2025, in a call with Mr Doueihi they were discussing what Mr Brown called the “deed of settlement covering letter”. Mr Brown agreed that Mr Sara was with Mr Doueihi and sat down at the dining room table with him (at [33]). Mr Brown deposed that his wife was also there but was not involved in the conversation and did not sit at the table (at [33]).
Mr Brown referred to [53] of Mr Doueihi’s affidavit, where Mr Doueihi disagreed that Mr Rod had said “I cannot speak with Cameron”, and deposed that Mr Rod “said directly to Cameron” that “[y]ou need to get independent legal advice” and that Mr Rod said to all of them “I cannot represent or advise Cameron” (at [35]).
Mr Brown then gave his account of the conversation that Mr Doueihi had recounted at [54] of his affidavit (at [36]):

As noted above, there was an application at the outset of the hearing of the notice of motion on 20 March 2026 to adjourn the hearing of the reopening application. I rejected this for the reasons already explained. I granted the application to reopen (confined to the limited issue already explained) for the following reasons.
I propose only briefly to summarise the various submissions made in support for and in opposition to the grant of leave to reopen. However, it is necessary to note the broader scope of the application as put by Ms Brown than that which was ultimately granted.
Ms Brown initially identified the issues the subject of the evidence she sought to adduce if the hearing were to be reopened as relating to the following matters: first, the responsibility of Mr Doueihi for giving and/or service of notice to adjoining owners of the Brown Land in relation to the works; second, Mr Doueihi advising Mr Brown to sign the Conditions of Development Consent; third, the authorship and circumstances of correspondence sent to the certifier (including correspondence for the attention of Mr Zimmerman) concerning the change of methodology to sheet piling on 9 April 2020 (referring in this regard to the transcript at 29/10/2025; T 239.14-15); fourth, the decision of Mr Doueihi to change to sheet piling; and, fifth, the settlement and conditions of settlement between Ms Brown and Scopeview.
As to the first four of those matters, Scopeview argued that: the first (responsibility for giving and service of notice to adjoining owners in relation to the works), is a question of law; the second (the circumstances in which Mr Brown signed the relevant Conditions of the Development Consent), if relevant to the pleaded issue of breach of statutory duty, was highly marginal; the third (authorship and circumstances of correspondence to the certifier concerning the change to sheet piling) was, again, if relevant to the pleaded issue, highly marginal; and the fourth (the decision making process and responsibility for change to sheet piling) was not in contest given that Mr Doueihi had accepted at the hearing that he made that decision (29/10/25; T 238.8-35) and that he had to comply with the conditions of the Development Consent (referring to 29/10/25; T 234); and referring to the closing submissions made for Scopeview on 31 October 2025 (31/10/25 T 440.41-47). As to the last of those matters (the settlement between Ms Brown and Scopeview), Ms Brown’s application was made in circumstances where the issue had been raised during the course of the hearing and it seems a forensic decision was taken not to pursue it at that stage.
Ms Brown candidly acknowledged that the application to reopen related to cross-examination of Mr Brown at the hearing. Ms Brown argued that, insofar as it was suggested in his cross-examination that Mr Brown had greater involvement in the building operations than Mr Brown contended, Ms Rayman’s case as conducted had expanded beyond the pleaded “notice” case “into a narrative of direct owner involvement”. Ms Brown argued that responsibility for notice therefore became central “not only to liability but also to a critical credibility contest”.
Ms Brown contended that the new evidence sought to be adduced was directly material, going to what she described as the “core forensic controversy” at the hearing (which she identified as being: whether she knowingly proceeded in breach of consent requirements; the accusation of untruthfulness on Mr Brown’s part; the credibility contest between Mr Brown and Mr Doueihi (referring to 28/10/25; T 170.5-17); and, as adverted to above, what Ms Brown described as Ms Rayman’s “expanded narrative of owner involvement in the construction”).
In her initial submissions on the reopening application Ms Brown argued that the “corrected evidence” materially affected the credibility contest and the proper evaluation of foreseeability, breach and causation; and Ms Brown argued that the matter should not be determined on the basis of evidence now admitted by Mr Doueihi to be inaccurate on a central issue. The force of that submission was of course greatly diminished when it became obvious from the affidavit sworn by Mr Doueihi on the reopening application that Mr Doueihi disputed any such acknowledgement of inaccuracy in his evidence.
What Ms Brown then argued, in reply submissions, was that the evidence she sought leave to adduce was not “merely directed to credit”, and was therefore not collateral (as the respondents to the motion contended); rather that it went to primary facts in issue, namely: who bore responsibility for neighbour notification; whether Mr Doueihi assumed that responsibility; who controlled the piling methodology; the allocation of contractual and practical responsibility; and Mr Doueihi’s discomfort at having given potentially misleading evidence. Ms Brown argued that these matters were central to liability (being relevant to foreseeability). Again, the last assumes acceptance of the accounts given by Mr Brown and Mr Rod on the reopening application. As I understood the submissions, Ms Brown, in substance contended that the negligence claim could not succeed on the issues raised as to “operational construction” matters and hence the weight she attributed to the new evidence as going to the only remaining basis of the pleaded claim – the failure to give notice to Ms Rayman of the excavation works within the required time and the failure to provide her with the requisite reports.
As to the rule in Goldsmith v Sandilands (2002) 76 ALJR 1024; [2002] HCA 31 (Goldsmith v Sandilands) (relied upon by Scopeview in resisting the application to reopen), Ms Brown argued that this rule applies to a contradiction of answers on pure credit issues and that the present case is fundamentally different (being, in her submission, “not merely impeachment material” but, rather, “admissions directly bearing on facts in issue”). Ms Brown argued that the material differences in the evidence filed on the reopening application as to what Mr Doueihi said in the conversations after the hearing in relation to his evidence at the hearing are material to the adjudication of the case.
Ms Brown rejected the propositions put by the respondents to the motion that: the application was an impermissible attempt to “re-agitate” matters; that the evidence was collateral or irrelevant; and that the threshold for reopening had not been met. Rather, Ms Brown contended that the evidence was fresh, reliable, contains admissions, went to the central issue or issues in the case (identified in supplementary submissions on the reopening in a slightly narrower way as who bore responsibility for giving notice to the adjoining owner; and whether Scopeview expressly assumed that responsibility; whether Mr Brown was told by Mr Doueihi to leave the notification to Ms Rayman to Mr Doueihi or whether that was untruthful evidence and that the interests of justice require it to be considered). Ms Brown asserted that the reopening was not sought to fill gaps or run a new case; rather it was directed to ensuring the matter was determined on an accurate evidentiary foundation.
Credibility was emphasised in the oral submissions for Ms Brown on the reopening application. Counsel for Ms Brown (Mr Luitingh) identified the issue as being whether Mr Doueihi was candid when he gave his evidence (20/03/26; T 16). Mr Luitingh submitted that credibility was an issue that had become heightened as a result of the evidence filed by Mr Sara as well as Mr Doueihi on the reopening application. Mr Luitingh contended that if Mr Doueihi could not be believed (as he contended was the case) in relation to the disputed 2 March 2020 conversation then that left only the version of events deposed to by Mr Brown and Mr Luitingh argued that if Mr Brown’s evidence was accepted this went to the issue of whether the damage should have been foreseen (20/03/26; T 16-17).
Mr Luitingh said that he did not have a basis to accuse Mr Doueihi of being “duplicitous” or “dishonest” when he cross-examined him at the first hearing because Mr Luitingh needed to clear up an issue in relation to the settlement deed that had been entered into between Ms Brown and Scopeview (20/03/26; T 15). In that regard, Mr Luitingh went so far as to suggest that he did not know if the matter had in fact been settled (on the basis that a condition preceded thereto was not met) but then said that he was not sure that the settlement in and of itself was the issue in the matter (20/03/2026; T 16).
In written submissions it was said that Ms Brown said could not have anticipated that Mr Doueihi would deny the various matters that he did in the witness box and that, once the denial was given, Ms Brown was not in a position to compel Mr Doueihi to “correct” his evidence mid-trial, as (in the light of the condition of settlement between Ms Brown and Scopeview) counsel did not know if Mr Doueihi was mistaken, did not understand the settlement or if there was a misunderstanding as to this issue.
Ms Brown submitted that no irremediable prejudice would be suffered if the reopening were confined to the discrete issue that she had identified and that any prejudice could be cured by: permitting Ms Rayman to cross-examine Mr Doueihi; permitting Ms Rayman to adduce short responsive evidence; and appropriate costs orders. On the other hand, Ms Brown submitted that refusal to reopen would risk serious injustice to Mr Brown by leaving uncorrected evidence which materially affected the credibility contest and the case advanced at trial.
The respondents to the motion argued that it should be refused but that, if granted, the reopening should be limited to the disputed 2 March 2020 conversation, the subject of the telephone call on 18 November 2025. The respondents further submitted that the costs of the reopening should be borne by Ms Brown, irrespective of the outcome of the final hearing (Ms Rayman, in particular, arguing that the reopening hearing had arisen through no fault whatsoever on her part and emphasising the desirability of bringing finality to the dispute; Scopeview arguing that Ms Brown was seeking an indulgence to re-agitate issues that ought to have been addressed at the hearing). Scopeview further argued that Ms Brown should pay the costs of Mr Doueihi obtaining separate legal advice and representation on the application for leave to reopen.
Ms Rayman argued that the disputed telephone call should not be used as a “back-door method” for Ms Brown to reargue her case (28/10/26; T 43) and now (for the first time) seek to impugn Mr Doueihi’s honesty and integrity with respect to the notification issue, particularly in circumstances where: Mr Doueihi’s evidence on the contested issue was not directly challenged in cross-examination; it was not squarely put to Mr Doueihi that he was not being honest when he gave evidence on the notification issue; and Mr Brown was present in court the entire time Mr Doueihi gave evidence. Ms Rayman argued that, if Mr Doueihi was not being honest, instructions could have been provided and direct propositions put to Mr Doueihi about his honesty and integrity on the notification issue and Ms Rayman pointed out that there is no affidavit evidence from Ms Brown or Mr Brown explaining why this step was not followed at that time.
Scopeview adopted Ms Rayman’s submissions on the reopening application (save with respect to costs) and argued that, in effect, Ms Brown was seeking a further hearing to adjudicate a fresh credit contest in order to adjudicate an existing credit contest. Further, Scopeview submitted that, depending on the findings made as to Ms Brown’s duty (i.e., whether any statutory duty on Ms Brown’s part to comply with the Conditions of the Development Consent in relation to notification to the neighbours was delegable or non-delegable), the further evidence Ms Brown sought leave to adduce may well be irrelevant to the case against her. In that regard, Scopeview submitted that the further evidence could only affect the outcome of Ms Rayman’s case against Ms Brown if this statutory duty was delegable (since, if the duty was non-delegable, whatever Mr Doueihi may have said to Mr Brown on 2 March 2020 and whatever responsibility Mr Doueihi may have assumed could not relieve Ms Brown’s liability for breach).
As already adverted to, Scopeview further argued that the evidence Ms Brown sought leave to adduce was directed to a collateral issue and said that leave to reopen should be refused on this ground alone. Scopeview identified the relevant fact in issue on the reopening application as being whether Mr Brown (on behalf of Ms Brown) delegated to Mr Doueihi the responsibility to notify Ms Rayman of the shoring works. Scopeview said that a fact relevant to that fact in issue is whether, having provided the shoring design to Mr Stockley, Mr Brown did not also provide the shoring design to Ms Rayman because Mr Doueihi assumed exclusive responsibility for doing so. Scopeview argued that the further evidence Ms Brown sought leave to reopen to adduce (that is, the evidence of the disputed conversations after the conclusion of the hearing) was clearly intended to attack Mr Doueihi’s credit in order to challenge the answers given by Mr Doueihi in cross-examination, and Scopeview maintained that this evidence was relevant only to a collateral fact and was not evidence that is relevant to a fact in issue or a fact relevant to a fact in issue (citing the High Court decision in Goldsmith v Sandilands in this regard). In reply oral submissions, Mr Luitingh harked back to the issue of credibility (saying that Counsel for Ms Rayman at the hearing, Mr Klooster, had opened Pandora’s Box in relation to this issue by accusing Mr Brown of being untruthful (20/03/26; T 50)) but rejected the suggestion that the nub of the application was the possibility that there might be an adverse credit finding against Mr Brown (20/03/26; T 50).
As to the fact that there was no challenge to Mr Doueihi’s evidence at the hearing, Ms Brown argued that it was circumspect not to raise that issue without enquiring whether the evidence was dishonest or made in error (referring to a without prejudice communication not admitted in evidence on the reopening application).
Insofar as Ms Rayman contended that the application is a “back-door method” to impugn honesty; Ms Brown argued that this ignored the critical distinction that the evidence was not constructed “for the purpose of attack”; rather, it arose from the witness’ own post-trial statements. Ms Brown maintained that the Court was not being asked to infer dishonesty indirectly; rather, to consider direct admissions by the witness himself (whether deliberate or inadvertent or due to a misunderstanding). (In fact, ultimately the submission put by Mr Brown seemed to be that Mr Doueihi’s evidence was dishonest and that he should not be believed – except insofar as the evidence was favourable to her case.)
As to the proposition that Ms Brown was impermissibly seeking to impugn the evidence of Mr Doueihi without having squarely put that proposition in cross-examination, Ms Brown argued that the obligation arising from Browne v Dunn (1893) 6 R 67 did not apply where there was not a fair opportunity and forensic basis to put a contradictory case at the time of hearing. Further, Mr Luitingh appeared to attach some significance to the fact that he had flagged at the time that there might be an issue about the settlement deed which might require an application for leave to reopen, pointing to the transcript where I had queried whether such an application was contemplated and had pointed to the procedure under the rules for a reopening application. (Pausing here, I do not believe that I could fairly be said there to have been inviting any such application and I was certainly not giving, nor could I have given, any indication that such an application if made would be successful.) Nevertheless, Ms Brown argued that the fact that such an application was discussed confirmed that the issue was recognised as potentially requiring further evidence and that her position was not foreclosed by the manner in which the cross-examination proceeded.
In summary, Ms Brown submitted that the proposed evidence: went to a determinative issue; might materially alter the findings made; and would ensure that the matter was not left to be determined on a potentially false factual premise. Ms Brown maintained that her application was confined and targeted, that it did not seek to re-litigate the case, but to correct a critical evidentiary gap and that any prejudice to the opposing parties could be cured, whereas refusal would carry a substantial risk of injustice for her.

The heavy burden on a party seeking to reopen a case was emphasised in De L v Director-General, Department of Community Services (NSW) (No 2) (1997) 190 CLR 207 by Toohey, Gaudron, McHugh, Gummow and Kirby JJ (at 215).
The relevant considerations include: whether the evidence is fresh or could not reasonably have been obtained earlier; whether it is credible and apparently reliable; whether it is material to the outcome; and the extent of any prejudice to the opposing party. The discretion is directed to ensuring that the Court’s decision is made on the true factual position, particularly where credibility is engaged (State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3 at [75]-[78]).
Having regard to the factors relevant to consider in deciding whether to accede to an application to reopen (see, for example, Bailey v Palonso [2020] NSWSC 1209 at [28]); the interests of justice (including the integrity of the fact-finding process); any prejudice to other parties; the reasons why the evidence was not led in the first place; whether or not it was a deliberate or tactical decision not to call the evidence at the time; any delay in making application; and the importance, relevance, probative value of proposed new evidence to issues in the case, I ultimately acceded to the application but, as noted earlier, I limited the grant of leave to reopen and to adduce further evidence to the issue of the disputed 2 March 2020 conversation.
I accept that evidence of what was said in the 18 November 2025 conversation was necessarily fresh evidence, in the sense that it emerged only after the hearing. While I considered it clear from what was said in submissions made at the hearing that a deliberate forensic decision had been taken not to challenge Mr Doueihi’s truthfulness at the hearing as to the point now in issue (see 31/10/25; T 415-417) and I accepted that there was no little force in the observation that Mr Luitingh could have taken steps at the time to obtain instructions on that issue (albeit that this would presumably have involved a request for an adjournment or to recall Mr Doueihi during the course of the hearing itself), I accept that Mr Luitingh considered he could not properly do so absent clarification of the issue concerning the so-called condition precedent to the settlement deed.
As adverted to above, I do not accept that I encouraged the making of a reopening application after judgment was reserved simply by querying what Mr Luitingh was proposing in relation to the issue he had raised as to the settlement deed and pointing to the available procedure for such an application.
While finality of litigation is an important consideration, here the reopening application was made before judgment in the matter, which to a large degree attenuates the concern as to the finality of litigation.
Delay, while unfortunate, was not to my mind a determinative factor in this case as judgment was still reserved and the application was foreshadowed very shortly after the hearing (albeit regrettably not progressed with any expedition – due, I was told, to Mr Luitingh’s ill-health).
As to the question of prejudice to the other parties, I considered that this could largely be met by costs orders, the ability to cross-examine the witnesses (including Mr Rod and Mr Brown) on their affidavit evidence and setting a tight timetable for the reopened hearing.
Insofar as Scopeview argued that the evidence might be irrelevant if any statutory duty of the kind it is alleged Ms Brown owed is non-delegable, I accepted that at the time of the reopening application that finding was yet to be made. Ms Brown, in her submissions argued that, even if the duty were non-delegable, the evidence remained relevant to factual causation, apportionment, credibility, and findings as to conduct and responsibility.
While I accepted that there was a question as to whether the proposed new evidence was tainted by the same credibility issues that it was sought to be relied upon to resolve and that the evidence was not obviously so probative that it was not open to question, and while I accepted the undesirability of reopening the hearing on an issue in substance as to credit (noting the caution in Goldsmith v Sandilands) and the force of the submission that this was evidence going to a collateral fact, ultimately the determinative factor in my mind was the concern as to the integrity of the evidence on which my judgment was to be based (and the concern as to the serious issues raised in respect of the conduct of an officer of the Court if parts of Mr Doueihi’s affidavit evidence were to be accepted).
There was a direct contest between Mr Rod and Mr Brown on the one hand and Mr Doueihi and (less directly) Mr Sara on the other hand as to what was said in the 18 November 2025 conversation in relation to the disputed 2 March 2020 conversation. Moreover, that dispute raised real issues as to the conduct of a solicitor, as an officer of the Court, in participating in the conversation and then taking steps in relation to the reopening application (in which he was to be a critical witness) up to only shortly before the “newly instructed” solicitor took over the conduct of the matter as the solicitor on the record. In those circumstances I considered it incumbent for me to accede to the application for reopening notwithstanding that it raised credit issues (and had the flavour of an attempt to re-agitate and improve Ms Brown’s case).
For that reason, I granted the limited leave to reopen. I did not allow the reopening to extend to issues in relation to the settlement deed (as that was not fresh evidence and could clearly have been dealt with before the conclusion of the first hearing even if that would have entailed an adjournment application at that stage) nor did I grant leave as to matters going to issues in the case already dealt with in evidence and in closing submissions (such as the circumstances in which the conditions of the Development Consent were certified by Mr Brown to have been complied with) or conceded at the hearing (such as Mr Doueihi’s acceptance that he made the decision to change to sheet piling – though as I have already noted Mr Brown clearly endorsed that decision; hence what turns on Mr Doueihi’s acceptance of that matter is by no means axiomatic).
In hindsight, having heard the reopened evidence, I consider that the application should probably have been dismissed since it became abundantly clear that it was in essence an exercise in seeking to restore (to the extent that it was thought to have been undermined) Mr Brown’s credibility. Mr Brown’s evidence during cross-examination made that very clear.
As to costs, I ordered that Mr Rayman’s costs of the reopening application should be borne by Ms Brown (subject to any application that might be made by Ms Brown, after the reopened hearing, that those costs be borne by another party – Scopeview or, as Ms Brown suggested she might seek, Mr Doueihi himself). That was because the reopening application was in no way attributable to any conduct on the part of Ms Rayman and it had been accepted in submissions for Ms Brown that an award of costs (and the opportunity to cross-examine Mr Doueihi) would ameliorate any prejudice occasioned by the reopening. That order for costs should extend to the hearing on 17 April 2026 itself. I hasten to add that I do not accept that Counsel for Ms Rayman bore any responsibility for the reopening (the suggestion that he opened Pandora’s Box in the metaphorical sense) nor do I accept that there was any impropriety in the questioning of Mr Brown’s truthfulness in the course of cross-examination. In that regard, it is important to focus on the aspect of Mr Brown’s evidence that was being impugned – it was Mr Brown’s evidence (given for the first time in cross-examination) that Mr Doueihi told him not to send or that he must not send notification to the Raymans. That was not the evidence he had given in his affidavit nor was there any suggestion of this in any contemporaneous objective documents and, to my observation when it was given, had all the hallmarks of embellishment.
As to the costs of Scopeview of the reopening application, I ordered that those should be reserved until after the reopened hearing since I accepted that the outcome of the evidence to be given at that hearing might have a bearing on who should pay the costs of the reopening. (I indicated that if there were then to be any application that Mr Doueihi personally pay those costs, he would need to be notified.) I deal with those costs in due course as part of these final reasons.

In cross-examination, Mr Rod confirmed that he was the solicitor on the record for Ms Brown from approximately December 2022 until sometime in April 2026, and that he was aware throughout that time that Mr Doueihi was the director of Scopeview, that Scopeview was represented by an insurer and that Wotton Kearney were on the record as solicitors for Scopeview (17/04/26; T 2).
Mr Rod said that he first became aware of a suggestion that Mr Doueihi wished to change his evidence a few days after the hearing (17/04/26; T 3). He said that Mr Brown telephoned him to advise him that Mr Doueihi had contacted him on a number of occasions to say that he was extremely upset about the outcome and the evidence that he had given (17/04/26; T 3). Mr Rod said that he was not aware on or about 5 November 2025 that Mr Brown was proposing to send transcripts of Mr Doueihi’s evidence to Mr Doueihi and that he became aware on or about 18 November 2025 when he spoke to Mr Brown that Mr Brown had sent the transcripts to Mr Doueihi (17/04/26; T 3).
Mr Rod said that he was not aware that Mr Brown was proposing to send the email dated 5 November 2025 (Annexure A to Mr Doueihi’s affidavit; Ex 11) to Mr Doueihi and that he was not aware that Mr Brown was proposing to send the email dated 11 November 2025 (Annexure B to Mr Doueihi’s affidavit; Ex 12) to Mr Doueihi (17/04/26; T 4).
Mr Rod said that he had discussions with Mr Brown where he said that if Mr Doueihi was unhappy he should consult an independent lawyer. In his second affidavit (at [5.1]), Mr Rod deposed that Mr Brown had asked him for the names of three independent lawyers and that he (Mr Rod) had given Mr Brown the name of Ms Jodie Gwynn-Jones of Harper Jones Lawyers. Mr Rod obtained that name from Ms Button (at [5.1]), who commenced acting for Ms Brown when Mr Rod ceased to act. Mr Rod said he provided the name to Mr Brown some time before 18 November 2025; possibly before 14 November 2025 (17/04/26; T 5). He said that Mr Brown arranged for payment of Ms Gwynn-Jones’ fees (17/04/26; T 5); that Mr Brown just instructed him to ensure her fees were paid and that it was Mr Brown’s idea to pay those fees (17/04/26; T 6).
As to the conversation with Mr Doueihi and Mr Brown on 18 November 2025, Mr Rod said it was over the speakerphone. He was in his office at his desk. He thought it was in the morning but did not recall (17/04/26; T 6).
Mr Rod confirmed that he said “I cannot talk to you” and “I cannot give you advice” (17/04/26; T 6). Mr Rod’s typed notes of the conversation were exhibited to his affidavit (Ex DR-3) (see [14] of his affidavit). His handwritten notes were in due course provided to the court (in the cross-examination bundle handed up by Mr Luitingh). Mr Rod said he prepared his typed notes some time after the conversation, at the time he prepared his affidavit, based on some of his handwritten notes (17/04/26; T 6-7).
Mr Rod confirmed that words in quotation marks in his first affidavit at [17] recorded the actual words he recalled Mr Doueihi using (including “adjoining owners” and “proposed excavation works”) (17/04/26; T 7). (Mr Doueihi in his affidavit denied using those words.)
Mr Rod accepted that there was a distinction between giving notice about the proposed works about to be undertaken and the conditions of the Development Consent and, in particular, Conditions 13 and 14 (17/04/26; T 8). In particular, he said that excavation and demolition were two different things and he accepted that one could interpret this as being different to complying with Conditions 13 and 14. He made a reasonable concession in this regard (17/04/26; T 8.26-34). Mr Rod conceded that what was recorded in his file note (where he attributes to Mr Doueihi a statement referring to Conditions 13 and 14) was not consistent with what he had set out in his affidavit (where he refers to “excavation”) (17/04/26; T 8-9). In the witness box, Mr Rod said he thought he used the word “excavations” in his affidavit incorrectly but that Mr Doueihi did refer to Conditions 13 and 14 and notification (17/04/26; T 9). Mr Rod said that when he looked at the file note the affidavit was probably incorrect (cf his evidence at T 8.3 that he believed that his affidavit set out the words actually used) (17/04/26; T 9).
Mr Rod accepted that when he told Mr Doueihi that it was not appropriate for him (Mr Rod) to talk to him he was there referring to the solicitor’s conduct rule that forbids communicating with another practitioner’s client unless the practitioner has consented and he accepted that he was aware that it is not appropriate to confer or deal with a party that is represented by an insurer unless both the party and the insurer have indicated their willingness to that course (17/04/26; T 9).
However, Mr Rod resisted the proposition that it was improper for him to proceed to confer with Mr Doueihi on 18 November 2025, saying “I do not agree with that entirely, no” (17/04/26; T 9). Asked the reason for that response, Mr Rod said (17/04/26; T 9):

Mr Rod said that it was not apparent to him as he was speaking with Mr Doueihi that this matter might go further and result in some sort of application and that each of Mr Brown and Mr Doueihi might become witnesses in any future application (17/04/26; T 11). Mr Rod was adamant that he did not believe the matter would go further at that stage and that he did not anticipate during this conversation that there was going to be an application to reopen or some similar application in the proceedings (17/04/26; T 11).
Mr Rod was then questioned about the circumstances in which he came to draft a letter to come from Mr Doueihi. Mr Rod denied that he had asked Mr Doueihi to write a letter about changing his evidence (cf the evidence of Mr Doueihi and Mr Sara). In his second affidavit at [5.7], Mr Rod had deposed that he said to Mr Doueihi “Cameron, if you want to correct the record you either need to talk to Wotton + Kearney or address a letter to me outlining the issues as you described them to me”. Asked whether he accepted that, at least to that extent, he had proceeded to give Mr Doueihi some advice, Mr Rod said that his advice was to go to Wotton Kearney or to write a letter to him (17/04/26; T 12).
Mr Rod accepted that in his file note prepared at the time of his first affidavit there was no mention of any conversation, discussion or suggestion that a letter or a draft letter be written; nor did he refer in his first affidavit to any such letter or that he had, in fact, prepared a draft letter but he accepted that he did, in fact, draft a letter, which he sent to Mr Brown, the same day as the 18 November 2025 conversation (17/04/26; T 12-13).
In his second affidavit at [5.11], Mr Rod had deposed that he agreed, at the request of Mr Brown, to draft a letter, which Mr Brown would then discuss with Mr Doueihi. In cross-examination, Mr Rod said that Mr Brown requested during the conversation that he draft this letter, and said that Mr Brown said words to the effect “[w]ould you help us prepare a letter, setting out the issues as [Mr Doueihi] has them?” (17/04/26; T 13).
Asked whether he accepted that, if he were giving a full and frank account in his affidavit of the conversation, he ought to have mentioned the fact that he was asked to draft a letter setting out the evidence that Mr Doueihi conveyed to him on 18 November, Mr Rod said, “I probably - I probably should have put it in my affidavit. Yes, I do accept that, your Honour” (17/04/26; T 13).
Mr Rod seemed to accept the proposition that not only did he confer with another solicitor’s client, but he proceeded to draft a letter setting out the content of that evidence with the expectation that Mr Brown would then further discuss that evidence with Mr Doueihi, saying, “I agree that I prepared a letter at the request of Mr Brown, which he wanted to discuss with Mr Doueihi. Yes” (17/04/26; T 13).
However, Mr Rod resisted the proposition that, at the point of time when he was being asked to draft a letter setting out the account of a witness in an existing proceeding, it was apparent to him that the purpose of doing so was, at least, to take the matter further in some way (17/04/26; T 13). In answer to that proposition, Mr Rod said (17/04/26; T 13):

Mr Rod agreed that he was familiar with the solicitor’s conduct rule that prohibits or forbids solicitors conferring with two prospective witnesses simultaneously but added that during that phone call he did not consider them (i.e., Mr Doueihi and Mr Brown) to be witnesses (17/04/26; T 15).
Mr Rod did not remember at what time his telephone discussion with Mr Doueihi ended (17/04/26; T 15). He did not recall but accepted that he might have had a number of telephone calls with Mr Brown that afternoon after he had spoken to Mr Doueihi (17/04/26; T 15). Mr Rod was shown some telephone records that Mr Brown had produced, on which Mr Rod identified his mobile phone number ending 075. Those records disclosed that there were a number of telephone calls on 18 November 2025. Relevantly, at 11:34am, there was a telephone phone call by Mr Brown to Mr Rod’s mobile number lasting 14 seconds (which Mr Rod accepted was likely to indicate a message left on his phone “or he might have let it ring”) and, at 1:12pm, a 28 second call to Mr Rod’s number (which he believed would be another message being left on his mobile) (17/04/26; T 15-16). Mr Rod did not recall but accepted that it was possible that his conversation with Mr Doueihi occurred sometime between those two times (17/04/26; T 16). He agreed that generally if Mr Brown phoned him he would then phone him back at the first available opportunity (17/04/26; T 16). The next entry after 1.12pm was at 1.51pm, a call lasting two minutes and one second to Mr Rod’s mobile number, which Mr Rod said “would have been a conversation of some sorts”; then a four second phone call at 2.18pm and another four second phone call at 2:23pm (likely messages) (17/04/26; T 16).
Mr Rod did not recall speaking with Mr Doueihi after those two phone calls on that afternoon (17/04/26; T 16).
Mr Rod accepted that he prepared a draft letter that afternoon based on what he said Mr Doueihi told him during the telephone conversation and that he emailed that to Mr Brown at 6:32pm that evening (17/04/26; T 16-17). Mr Rod believed that the words in this letter were a combination of his own words and Mr Doueihi’s words (17/04/26; T 17). Mr Rod did not accept that he wrote parts of the draft letter to protect his position (the statements “you have advised me to speak to my solicitors or get the advice of an independent solicitor” and “I confirm I do not wish to do that. I also confirm that you advise me your barrister informed the insurance company’s solicitor that I’m not to speak to Mr Brown”) (17/04/26; T 16). Mr Rod said that he wrote the first because “I said it to Mr Doueihi when I spoke to him in the telephone call of 18 November. It was the first thing I said to him, and it was just a confirmation” and disagreed with the proposition that the second was written to have Mr Doueihi make concessions that he considered would assist Ms Brown’s case (17/04/26; T 17).
As to the statement in the draft letter that “Mr Brown advised me that he did not wish to speak to me, but he would send me the transcript, which he did”, Mr Rod was asked what his knowledge or understanding was, as at the time he drafted this letter, of when was the first time that Mr Doueihi spoke to Mr Brown about changing his evidence (17/04/26; T 18). Mr Rod said (17/04/26; T 18):

In cross-examination, Mr Brown accepted that he understood when preparing is affidavits that it was important to give and full and frank account to the Court of: the events and contents of the discussions that occurred after the conclusion of the hearing of this matter; all the communications that he says he had with Mr Doueihi after the hearing; and all of the events leading up to each of those conversations (17/04/26; T 23).
Mr Brown was taken first to the letter dated 12 December 2025 from Spectrum Legal to the Court, which he accepted was on his instructions (17/04/26; T 23), in particular to [1.1] of the letter which gave an account of what happened following the conclusion of oral evidence at the hearing, including that he had refused to take calls from Mr Doueihi but had “eventually” spoken to him.
In cross-examination, Mr Brown said that there were two calls from Mr Doueihi that he did not take; that he was at a wedding at Fiji; and that he took the third call. Mr Brown was unable to say what the time period was between the calls he did not take and the one he did take but that they were all on the same day (17/04/26; T 24).
It was suggested to Mr Brown that the word “eventually” in the 12 December 2025 letter gave a misleading impression that some considerable time passed between him not taking Mr Doueihi’s calls and him taking Mr Doueihi’s call (17/04/26; T 24). Mr Brown accepted that the calls happened within a space of approximately an hour or two (adding that “I guess you’ve got his phone records so you could make that judgment yourself”) (17/04/26; T 24). Mr Brown said that he never looked at the incoming calls on his phone records but only the outgoing calls (17/04/26; T 24).
When asked whether his evidence was that, when he did take Mr Doueihi’s call, Mr Doueihi volunteered certain admissions that were inconsistent with the evidence that he gave at the hearing of this matter, Mr Brown confirmed that this was his evidence and went on to say “It’s not - not necessarily only on that call. There were numerous calls throughout this period” (17/04/26; T 24-25).
Taken to his first reopening affidavit, it was pointed out that at [4] Mr Brown said that “[o]n 5 November, while I was overseas, I received two missed calls from [Mr Doueihi]” but there is no reference in that affidavit to having taken a third call made by Mr Doueihi that day. Instead, at [5], Mr Brown deposed that they exchanged several calls on 11 November 2025 in which they discussed their impressions of the trial and then, at [6], Mr Brown deposed that “[o]n 13 November 2025, [Mr Doueihi] said to [Mr Brown] “I want to correct matters which I believe have been inaccurately presented”” and Mr Brown went on to add further paragraphs about the things that he said Mr Doueihi said to him on 13 November 2025.
When it was put to Mr Brown that the account he was giving in those paragraphs of his affidavit was that the first occasion on which Mr Doueihi suggested to him that he wished to correct his evidence was on 13 November 2025, Mr Brown said that “[f]urther on in my affidavit is the third call of 5 November” (17/04/26; T 25). However, Mr Brown then accepted that it was not until the second affidavit (filed in response to Mr Doueihi’s affidavit) that he gave an account of the 5 November 2025 telephone conversation with Mr Doueihi (17/04/26; T 25-26). Mr Brown accepted that, to that extent, his affidavit of 9 February 2026 did not give a full and frank account of his communications with Mr Doueihi about the matters about which he was now giving evidence (17/04/26; T 26).
At [6] of his first affidavit, Mr Brown deposed that the first occasion on which Mr Doueihi said anything to him about correcting matters which had been inaccurately presented was on 13 November 2025. Mr Brown accepted that he had said that in his first affidavit and that he stood by that evidence (17/04/26; T 26).
Mr Brown was then taken to his second affidavit, where he referred to the conversation of 5 November 2025 at [37], there referring to Mr Doueihi’s affidavit at [55]. Mr Brown there deposed that “[t]here was more to this conversation, and it took place at the beginning of our call” and set out various matters in the following subparagraphs.
At subparagraph (a), Mr Brown deposed that the reason that he got Mr Rod on the call (referring to the speakerphone call that took place around the kitchen table in his house on 18 November 2025) was because Mr Doueihi “had had a long conversation before this one on 5 November 2024 which I recount below”. There was then the first reference to a third call on 5 November 2025, which Mr Brown had taken. Mr Brown set out that conversation, including that he had said to Mr Doueihi that “I was rather disgruntled with the way you had replied to your questioning in the witness box regarding the conditions that were set out by council (clause No13 [sic]), notifying Errol and Avron”. Mr Brown then deposed at subparagraph (c) that “[w]e briefly discussed the telephone call we had on 2 March 2020”. At subparagraph (e), Mr Brown refers to “[i]n this conversation on 18 November 2025”.
It was put to Mr Brown that it was not entirely clear from the way in which this paragraph had been set out, which parts were referring to the conversation with Mr Doueihi on 5 November 2025 and which parts were referring to the conversation on 18 November 2024 (17/04/26; T 28). There was then no little confusion in Mr Brown’s attempt to identify those parts of the conversation which he said had taken place with Mr Doueihi on 5 November 2025. Mr Brown started by saying (17/04/26; T 28):

Mr Brown agreed that he actually spoke to Mr Doueihi for about two and a half hours on 5 November 2025 (17/04/26; T 29.36). He said that it was “an intense, long conversation about our feelings of what transpired in the case” and he seemed to accept that it was not something he was likely to have forgotten by 12 December 2025, when his lawyers sent the letter to the Court (17/04/26; T 29.48).
What was then suggested to Mr Doueihi was that the 12 December letter that was sent to the Court gave the somewhat inaccurate impression that he was reluctant to take Mr Doueihi’s calls and that he eventually took Mr Doueihi’s call sometime after 5 November 2025 (17/04/26; T 30). Mr Brown said “[i]f that’s what it implied, that’s not true. I did speak to Mr Doueihi on 5 November. I said I took the third call that he called, your Honour” (17/04/26; T 30).
Mr Brown was then taken to a Vodafone tax invoice for the period 23 October to 22 November 2025 and shown a series of entries. First, an incoming call on 5 November 2025 at 11:27:10am which Mr Brown presumed was Mr Doueihi telephoning him (17/04/26; T 32). (There was another incoming call at 11:31am presumably also from Mr Doueihi.)
At 12:00pm there was a call recorded to Mr Rod’s number. Mr Brown did recall trying to call Mr Rod on 5 November 2025 (17/04/26; T 31). He said that he did speak to him and that he said, “Cameron’s trying to get hold of me. Must I take the call?” (17/04/26; T 31). Then at 12:01pm and 12:02pm, there are calls to Mr Doueihi’s number. Mr Brown said that was an indication of him calling Mr Doueihi (17/04/26; T 32).
At 12:43:59pm the invoice records an incoming call with a duration of two hours 31 minutes and 51 seconds. Mr Brown said that this was the call with Mr Doueihi (17/04/26; T 33).
Then at 4:21:02pm, there was a call from Mr Brown’s mobile number to Mr Rod’s number lasting 23 minutes 45 seconds.
Mr Brown said he thought there was a discussion with Mr Doueihi on 5 November 2025 about him changing his evidence and he said that he definitely had a discussion with Mr Rod about that topic on 5 November 2025 (17/04/26; T 34).
Mr Brown said that he asked Ms Button to send him the transcript of evidence on the last day of the trial (31 October 2025). He did not recall being in Fiji and sending an email attaching the transcript (17/04/26; T 34).
At 5:02pm on 5 November 2025 Mr Brown sent an email to Mr Doueihi that said “[p]lease read through transcript in your section” (giving him some page numbers) and Mr Brown asked Mr Doueihi to “see if there are any answers you might want to change or amend” (17/04/26; T 34). Questioned as to this email, there was the following evidence (17/04/26; T 35):

Mr Brown did not accept that the purpose of drafting this letter to be signed by Mr Doueihi was to have him adopt Mr Brown’s words that this is the most important issue (17/04/26; T 47). Mr Brown said “[n]o, Mr Doueihi asked Mr Rod to construct a letter which he said he would amend or change but he just wanted the outline or the gist of it to do, your Honour” (17/04/26; T 47).
Taken to the words “on his letter dated”, Mr Brown did not accept that the word “letter” was his word (17/04/26; T 47-48). Mr Brown did not agree that he often refers to emails as letters, saying that he thought he was quite good “with that type of stuff but it’s possible that one can make an error along those lines” (17/04/26; T 48).
Counsel then asked a series of questions putting to Mr Brown the versions given by Mr Doueihi, which Mr Brown denied. In particular, Mr Brown denied that he made the initial approach to Mr Doueihi to have him change his evidence (17/04/26; T 49). As to whether he sent Mr Doueihi the transcript of his evidence on 5 November 2025, for the purposes of asking him to change or amend the evidence that he had given at the hearing, Mr Brown said, “I sent him the transcripts. He wanted to put into ChatGPT” (17/04/26; T 49).
When it was suggested to Mr Brown that what Mr Doueihi said to him in conversations which occurred on either, or some, or all of 5, 11, 17, 18 November 2025 was that Mr Doueihi may have said to him (Mr Brown) in a phone call on 2 March 2020 “[l]eave it with me,” but that he (Mr Doueihi) did not recall that conversation, Mr Brown said he did “recall that sentence” (17/04/26; T 49). Asked if he also agreed with the proposition that Mr Doueihi said he did not recall the conversation on 2 March 2020, Mr Brown said “[i]nitially, he said that, but then he seemed to have recollection of it” (17/04/26; T 49).
In cross-examination by counsel for Ms Rayman, Mr Brown was taken to his evidence as to the most important issue he was concerned about. He accepted that that included notification of the neighbours (17/04/26; T 50). When reminded that he had said that it was the only issue he was concerned about, Mr Brown said (17/04/26; T 50):

Having summarised above the evidence given as to the circumstances in which the evidence on the reopening application was obtained by Mr Rod, I now deal with the objection taken by Scopeview pursuant to s 138 of the Evidence Act to Mr Rod’s evidence on the basis that it had been improperly obtained.
As adverted to above, preliminary rulings on the evidentiary objections to the various affidavits read in support and opposition of the notice of motion were made on 10 April 2026. To the extent that there were provisional rulings made in relation to the affidavit of Mr Brown sworn 9 February 2026 (10/04/26; T 2), I have not changed my view and those will be treated as now unqualified (I refer in this regard to my provisional rejection at that time of [19] (whole paragraph) and [22] (the words, “from this discussion” through to “I changed the...”)). As to the affidavit of Mr Brown sworn on 19 March 2026, the same applies (10/04/26; T 2-3), including my then provisional rejection of the second quoted paragraph in [11] on the ground of relevance. (Similarly, I made rulings in relation to the affidavit sworn 26 February 2026 of Mr Doueihi (10/04/26; T 5-6), some provisional (see [25], the words, “it is true that I had assumed” through to the end of the second sentence; [30]-[33], where the objection was that these went beyond the scope of the leave; and [43]), which I now confirm, and to the affidavit sworn 25 February 2026 of Mr Sara (provisionally allowing [13]), which I again now confirm. It is not necessary here to record those rulings, which should be clear on the transcript.)
The more contentious issue related to Scopeview’s objection to the whole of the affidavit of Mr Rod affirmed on 9 February 2026 on the ground that the evidence had been obtained improperly within the meaning of s 138 of the Evidence Act. I deferred ruling on the objection until judgment, given that I needed a better understanding of the circumstances in which the evidence had been obtained and, if improperly obtained, I needed to carry out the balancing exercise under s 138(3) of the Evidence Act in order to make a ruling in relation to that provision. In the event that the evidence was not ultimately rejected on the basis of the s 138 ruling, I made various other rulings on portions of that affidavit and Mr Rod’s subsequent affidavit affirmed on 18 March 2026 (10/04/26; T 5).

The term “party” is not separately defined in the UCPR; rather, “active party” is defined as meaning “a party who has an address for service in the proceedings…”. Under the Solicitors’ Conduct Rules, “party” is defined in the Glossary of Terms as including “each one of the persons or corporations who or which is jointly a party to any matter.” Scopeview, a corporation, is the named party to the proceedings. The question is whether Mr Doueihi, as the sole director of Scopeview, is captured within the meaning of “party” for the purpose of the Solicitors’ Conduct Rules.
Scopeview refers in this context to the guidance provided by the former conduct rules in New South Wales, and regulatory guidance issued by the Law Institute of Victoria and the Queensland Law Society, which treat directors and senior officers of a corporate party as falling within the protection of the rule on the basis that a director or senior manager of a company being sued who is responsible for giving instructions about the litigation is within the class of persons that opposing solicitors may not contact directly (Law Institute Victoria Ethics Guideline, The Obvious Error of Another Communicating with Another Solicitor*’*s Client, 2022; Queensland Law Society Guidance Note No 29, applying the “no contact rule” when the other party is an organisation). That guidance is as follows.
Rule 18 of the Revised Professional Conduct and Practice Rules 1995 (NSW), being the former conduct rules of New South Wales, contained a specific rule in cases where the opposing party was a corporation, prohibiting a solicitor from conferring with, or interviewing “any person authorised to make admissions on behalf of the corporation, or to direct the conduct of the proceedings” unless the practitioner acting for the other person had agreed to the interview. Scopeview submits that the current rule (in relation to contact with a party represented by another legal practitioner), r 33.1 – see below – has been interpreted consistently with r 18 of the former conduct rules.
The Law Institute of Victoria issued guidance to the profession in 2022 (Ethics Guidelines, “Communicating with Another Solicitor’s Client”) which states (at 2):

Dal Pont explains (in the Solicitor’s Manual) each of the above rules as “a measure to prevent the relationship between lawyer and client being undermined” and that the rules “also have a rationale in preserving the integrity of the evidence” (at [23,005.15]).
Mr Rod was cross-examined as to the time at which he first realised or became aware that there was a possibility that there might be an application to reopen the hearing. Mr Rod’s evidence (see above) was that he did not appreciate this, nor that there might be grounds for an application to reopen, until after the conversation with Mr Brown and Mr Doueihi on 18 November 2025 and, in particular, “after consultation” that afternoon with Mr Luitingh. With respect, that is difficult to reconcile with Mr Rod’s recollection that Mr Doueihi used the word “rectify” a number of times in the conversation in relation to the evidence he had given at the hearing particularly as Mr Rod accepted that, as a solicitor, he was aware that for evidence to be “rectified” an application to reopen would be necessary. I accept that such an application would not necessarily be one by Mr Rod’s client – it might well have been an application brought by Scopeview if Mr Doueihi had raised that issue with his solicitors, or Mr Doueihi himself (although ordinarily one would not expect an application by a witness in this context) had Mr Doueihi obtained advice in relation to such an application from an independent solicitor.
However, the point remains that the possibility of a reopening application should have occurred to a solicitor in Mr Rod’s position as soon as the conversation raised the possibility of rectification of evidence that had already been given in court. For that reason (and the breach of the earlier rules), Mr Rod’s initial reluctance to speak with Mr Doueihi was well-founded. Mr Rod should not have done so without the consent of Scopeview’s solicitor.
In any event, the position is put beyond doubt when Mr Rod consulted with Mr Luitingh after the 18 November 2025 conversation but on the same afternoon. Although, for obvious reasons, there is no evidence as to the content of that conversation, Mr Rod’s evidence was that after this consultation he was aware that there might be grounds for an application to reopen so there must have been some discussion about that topic.
Moreover, Mr Rod did more than just listen to Mr Doueihi (as he says, but Mr Doueihi disputes, Mr Doueihi asked him to do). Mr Rod went further. He took a file note of the conversation (good practice for any solicitor) and then proceeded to use it to draft a letter for Mr Doueihi to send back to him setting out what Mr Rod seems to have understood Mr Doueihi’s account to be and, in due course, to draft the first affidavits for use in the reopening application. It is difficult to see how that could be thought to have been appropriate in all of the circumstances. (And it has the insuperable difficulty, in my view, that this account is one which, on Mr Brown’s own evidence, was the product of numerous discussions or conversations between Mr Brown and Mr Doueihi, to which I will shortly come.)
As noted earlier, Mr Luitingh informed me from the Bar table on 20 March 2026 that he had said “for some time” that Mr Rod could not continue to act for Ms Brown (presumably a reference to the reason given to Ms Button that he could not continue to act – because he was going to be a witness in the proceedings) (20/03/26; T 1). It is not clear (since I, quite properly, do not know what transpired in the conversation between Mr Rod and Mr Luitingh that afternoon) whether Mr Luitingh gave that advice during the conversation in the afternoon on 18 November 2025. Giving Mr Rod the benefit of the doubt, I will proceed on the basis that Mr Luitingh did not (since otherwise it is difficult to see how Mr Rod could have considered it appropriate from that time for him to continue to act).
Nevertheless, I consider that it was not appropriate for Mr Rod to draft the letter proposed to be sent by Mr Doueihi not only because this was doing so for another solicitor’s client but also since Mr Rod must by then have appreciated that he might himself have to give evidence on any reopening application. While I accept that Mr Rod may well have been prevailed upon to do so by Mr Brown (after all, it was Mr Brown who telephoned Mr Rod and who, on Mr Rod’s account, did not accept Mr Rod’s initial position that he could not speak to or advise Mr Doueihi; and who, on Mr Doueihi’s evidence, requested that the letter be drafted), Mr Rod should have stood his ground on that issue (and he accepts, in hindsight, that he should have done so).

As noted above, I have concluded that the impugned evidence was improperly obtained. The question then, as the authorities above make clear, is whether the desirability of admitting the evidence outweighs the undesirability of its admission.
As to the probative value of the evidence, ultimately in my opinion this is very low due to the manner in which it came about that Mr Doueihi spoke to Mr Rod after so many discussions and conversations with Mr Brown. The chronology of events that emerges from the cross-examination of Mr Brown and the contemporaneous documents leads to the overwhelming inference that it was Mr Brown who was pressing Mr Doueihi to recast his evidence on the issue of the 2 March 2020 conversation – Mr Brown was “disgruntled” at the evidence Mr Doueihi had given; Mr Brown sent Mr Doueihi the transcript inviting him to indicate anything he wanted to change or amend; Mr Brown sought or obtained Mr Rod’s involvement in the matter (both in the telephone call and the subsequent drafting of the letter – which, extraordinarily, was sent to Mr Brown in draft); and Mr Brown offered to pay for the independent solicitor’s advice. In those circumstances, even before considering Mr Doueihi’s evidence on the issue, there is serious doubt as to the weight that could be placed on whatever Mr Doueihi subsequently said about his recollection of the 2 March 2020 conversation.
Where there is the appearance of, or an inference may be drawn as to, collusion between witnesses in question, it is well recognised that this may diminish the weight or credit accorded to the evidence of those witnesses (see, for example, Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 at [90] and Seamez (Australia) Pty Ltd v McLaughlin [1999] NSWSC 9 (Seamez)).
In Seamez, Sperling J explained the reasons for this (in circumstances where his Honour was satisfied, having regard to a high degree of similarity in content, detail, terminology and sequence, particularly in relation to conversations, between the affidavits of three witnesses, that their affidavits could not have come into existence without direct or indirect collaboration) (at [40]):

In Day v Perisher Blue, the Court of Appeal (Sheller JA, with whom McColl JA and Windeyer J agreed) similarly pointed to the process by which evidence is taken as having been seriously undermined where witnesses had discussed their evidence with other witnesses. There, Sheller JA identified the risk in what had been done (a teleconference with witnesses discussing amongst themselves the evidence that they would give) as being (at [30]) that “evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true”.
Here, there is evidence from Mr Brown himself that there were numerous discussions (at least one being lengthy) between him and Mr Doueihi in relation to the proceedings and the evidence that had been given. There is an obvious risk that Mr Doueihi’s evidence about matters relevant to the disputed 2 March 2020 conversation has been coloured by those discussions and communications.
As to the conversation on 18 November 2025, the most troubling aspect of the account given by Mr Doueihi in his affidavit on the reopening application (and supported at least in terms of Mr Sara’s general impression of what occurred) was the suggestion that Mr Rod was coaching a potential witness as to his evidence. So, for example, on Mr Doueihi’s account, Mr Rod suggested what Mr Doueihi could say in a letter to be drafted by Mr Rod and sent to Mr Brown (including that Mr Doueihi was struggling to sleep at night). In particular, the reference to Mr Doueihi struggling to sleep since he gave his evidence in Court is concerning – if Mr Rod was in fact suggesting to Mr Doueihi statements he could make in support of an application (whether by Mr Doueihi or Mr Brown) to “correct” his evidence, without Mr Doueihi having told him that this was the case, it is tantamount to coaching a witness. I hasten to add that Mr Rod strongly rejects that he suggested to Mr Doueihi that he say this and I make no adverse finding against Mr Rod on this issue.
There does not appear to be a reference to Mr Doueihi having trouble sleeping in Mr Brown’s accounts of the conversation on 18 November 2025 (or any earlier conversation about Mr Doueihi’s evidence); nor in Mr Brown’s (“on the same page”) email. However, there is reference to Mr Doueihi being “unable to sleep” in Mr Rod’s handwritten note (and subsequent undated typewritten note) of the 18 November conversation.
The suggestion that Mr Doueihi (who did not have the transcript of his evidence until it was provided to him by Mr Brown) had been struggling to sleep at night because of a concern that his evidence at court may not have been complete or as forthright or clear as it could have been, or that it may have been misleading, is difficult to accept. Mr Doueihi in cross-examination referred to wanting to have “peace of mind” and to clarifying his evidence with the independent solicitor; but he was also insistent that he thought his evidence was clear and he was not upset about it. The evidence as to wanting “peace of mind” is readily explicable to my mind by a concern on Mr Doueihi’s part, arising from Mr Brown’s dissatisfaction (or disgruntlement) expressed in his conversations with Mr Doueihi, that Mr Doueihi had said something that upset Mr Brown (and this is consistent with Mr Doueihi’s account, albeit limited, as to what the independent lawyer had said about this).
The person who (on his own account of his conversation with Mr Doueihi) was disgruntled about Mr Doueihi’s evidence was Mr Brown (see [37](b) of Mr Brown’s 19 March 2026 affidavit).
It is difficult to avoid the conclusion that what happened after the hearing (commencing during the two hour telephone conversation on 5 November 2025 about which neither participant gives much content – and to which Mr Brown originally did not even refer) is that: Mr Brown was concerned as to the impression I would form as to the conflict in the evidence on the neighbour notification issue; Mr Doueihi (who said Mr Brown was a good client with whom he had become friends) was concerned as to Mr Brown’s well-being and wanted to reassure him; and there were then various conversations in which Mr Brown pressed for Mr Doueihi to change (or “rectify”) his evidence to address a number of matters that Mr Brown (and, I emphasise, Mr Brown not Mr Doueihi) considered of importance to the case or which he was concerned may have undermined his own credibility.
That is supported by the fact that Mr Brown: sent Mr Doueihi the transcript on 5 November 2020 (he said on the basis of a request which Mr Doueihi denies) inviting Mr Doueihi to consider what he thought he might wish to change or amend; prepared an email setting out Mr Brown’s account of what Mr Doueihi had said to see if they were “on the same page”; pressed for Mr Rod to listen to what Mr Doueihi had to say on 18 November 2025; was involved in or forwarding (and seemingly amending or updating) the draft letter prepared by Mr Rod; and then offered to pay the fees of the independent lawyer whose name was suggested by Mr Brown or Ms Button for giving advice to Mr Doueihi.
In any event, it is not necessary for me to form a concluded view on this. Suffice it to note that, on Mr Brown’s own account, there were numerous calls between him and Mr Doueihi about the hearing (including as to the evidence Mr Doueihi gave at the hearing) which means that the accounts given by both Mr Brown and Mr Doueihi on that issue are seriously devalued (for the reasons given, and having regard to the authorities referred to, above).
The whole exercise of reopening the hearing (or at least the most important issue in Mr Brown’s eyes) was to address the aspersions cast on his truthfulness during his cross-examination. The unfortunate result of the manner in which the evidence on reopening was obtained means that, far from vindicating or restoring Mr Brown’s credibility as a witness, it casts doubt as to the genuineness of the evidence that was ultimately relied on in the reopened hearing.
As I make clear in due course, I make no finding adverse to Mr Brown’s truthfulness but the above will be relevant when considering costs of the reopening application and the reopened hearing to the extent that it is necessary to address those separately or differently from the costs of the proceedings as a whole.
Moreover, the probative value of the evidence must be evaluated in circumstances where it went to an issue of credibility, not directly to a substantive issue in the proceedings. Its importance in the proceedings was not as central as Mr Luitingh on numerous occasions insisted. The evidence as it rested at the conclusion of the hearing on 31 October 2025 was that Mr Doueihi accepted that it was possible that he had said “leave it with me” in relation to notification to the neighbours (as it was an expression he commonly used) although he did not recall the 2 March 2020 conversation and did not recall saying it in such a conversation. As I understood it, Mr Doueihi accepted that if he had said “leave it with me”, he would have meant it, in the sense that Mr Brown could rely on that but, again, he did not recall saying that Mr Brown must not send it to the Raymans and could not tell why he would say that.
Further, if Mr Doueihi’s account on reopening were not to be believed this would not have compelled acceptance of Mr Brown’s account (as Mr Luitingh seemed to suggest) – it might simply mean that I would be unable comfortably to be persuaded as to what in fact was said during the 2 March 2020 conversation that Mr Doueihi accepts occurred; nor would it have compelled the wholesale rejection of Mr Doueihi’s evidence (as Mr Luitingh urged).
As to the gravity of the impropriety, this is not a situation of illegality (as was the case in Kadir) nor would I describe the breach of the Solicitors’ Conduct Rules which here occurred as being of the same character as, for example, the breach of fundamental duties by the barrister deplored in Mokbel.
As to whether evidence of this kind could have been obtained in another (proper) way, the answer to that must be yes – as Mr Rod appears to have understood when advising Mr Doueihi to seek independent advice. (Of course, whether it would have been so obtained is another question, since Mr Doueihi ultimately gave evidence contrary to that which was the subject of Mr Rod’s account. In any event, as I have already noted, the impugned evidence here sought to be relied upon would clearly not have been obtained but for the breaches of the Solicitors’ Conduct Rules.)
Balancing the above, while I would not describe the breaches of the Solicitors’ Conduct Rules as a minor contravention and I certainly do not condone such conduct, I accept Mr Rod’s evidence that it was unintentional and thoughtless. And, while ultimately its probative value turned out in my opinion to be very low, that emerged only when the evidence was tested. The disputed evidence did go to the integrity of the evidence that had been given earlier at the hearing. I am thus persuaded (albeit with some hesitation) that the desirability of admitting the evidence outweighs the undesirability of its admission having regard to the manner in which it was obtained and I rule accordingly.

Mr Sara was also a lay witness of course, though only when the hearing was reopened. I accept that Mr Sara’s evidence was vague and general in its terms (and that little can be gained from evidence that “something” was said “about something”). Mr Sara was unable to recall exactly what was said or to put into direct speech words the effect of what was said at the critical conversation but, to his credit, he made that clear in his affidavit. Mr Luitingh criticised Mr Sara’s evidence as being “reconstruction” rather than memory or recollection. To some extent there is force to that criticism. However, where Mr Sara deposed to the contents of the conversation as being that something like that was said, this is not much different (if at all) from the witnesses who gave evidence of conversations using the well-known (but by some judges deplored) formula of “words to the following effect”. I do not here propose to enter into the judicial fray as to the legitimacy of such a method of drafting affidavits save to note that I do not accept that the course here adopted was either unprofessional or unethical. What Mr Sara (as did those who deposed to conversations taking place in “words to the following effect”) was making clear was that he could not recall the precise words that were said or the whole of the conversation. Mr Sara, in particular, was conveying his general impression of the topic or topics of conversation and what was being conveyed in the conversation (not reconstructing, in the sense of making up, the conversation). The weight which can be attached to that is another matter.
I accept that little weight can be attached to much of Mr Sara’s evidence, which was broadly his impression or understanding of what had occurred, without being able to test how that impression or understanding had been formed (by reference to what had been said or done to give rise to that impression or understanding). Where Mr Sara deposed that he did not hear or recall things being said, that may have some weight but given the limited recollection he had of the meeting I would ultimately place little weight on this. I accept that in giving his evidence Mr Sara was genuinely trying to assist the Court and I make no adverse credit findings (nor were any sought). However, beyond his general impression as to the communications during the meeting (which is consistent with Mr Doueihi’s account but which cannot meaningfully be tested), Mr Sara’s evidence can take the matter no further. I reject, however, the proposition put in submissions for Ms Brown that Mr Sara had been “brought along” by Scopeview “to support [Mr] Doueihi but under extremely dubious circumstances” (17/04/26; T 123.8-9). As a person present at the critical 18 November 2020 conversation, one can readily surmise that Scopeview would have been criticised had evidence not been obtained from Mr Sara as to his recollection of the meeting.

As to Mr Brown, as I have already observed when summarising his evidence at the first hearing, he had a tendency in the course of cross-examination to say things seemingly off the top of his head (such as his speculation as to the reason that he attributed to Mr Doueihi for telling him not to send the relevant reports to the Raymans) or without careful consideration (such as his assertion on two separate occasions that he did not know who Martens was, when he accepted that he must have known of Martens by reference to communications to which he was then taken); and a tendency to make broad assertions (such as his assertion that he did not understand, and still did not understand, documents such as the Martens Report, when not only were parts of that report readily comprehensible to a lay reader, but he also was clearly aware of the recommendation not to use sheet piles since he made the point to Mr Doueihi and Mr Quinton that while it was not recommended it was not “disallowed”).
Mr Brown also had a tendency to seek to argue the case (of which I have given examples already). On occasion, he was somewhat defensive (“if you want to pin me as guilty so be it” – see 28/10/25; T 167; “if I’m guilty of it, I’m guilty of it” – see 28/10/25; T 173); and Mr Brown was clearly affronted when it was suggested he was giving untruthful evidence in relation to the neighbour notification issue (as became even more apparent at the reopened hearing).
Those aspects of his evidence cast doubt not so much on Mr Brown’s credit as a witness but on his reliability as a witness. Where the tendency to say things off the top of his head and without careful thought became most evident was in the cross-examination of Mr Brown on the reopened hearing as to what parts of his affidavit evidence referred to what was said in the 5 November 2025 conversation as opposed to the 13 November 2025 conversation. Mr Brown’s evidence on this was contradictory and casts doubt as to the reliability of his recollection of the events that occurred following the hearing at least in the period from 5 to 13 November 2025.
Also problematic is the fact that Mr Brown’s account in his first reopening affidavit left out important aspects of the events post-hearing: his first account did not refer to him having actually spoken to Mr Doueihi (at some length) on 5 November 2025 (his first account being simply that he had not taken two calls from Mr Doueihi on that day), nor did it refer to Mr Brown having spoken (for just over 20 minutes to Mr Rod on that day) or to Mr Brown having sent to Mr Doueihi the transcript of the latter’s evidence at the trial (with the invitation to consider what he might wish to correct or amend). The use of the word “eventually” when referring to the 13 November 2025 conversation in his first reopening affidavit (repeated in Mr Rod’s letter to the court dated 12 December 2025) conveys (intentionally or otherwise) that there was a gap (of more than mere minutes) between the missed calls on 5 November 2025 and when he spoke to Mr Doueihi, which was not the case. It was not until the second account of events was given by Mr Brown (after Mr Doueihi’s affidavit) that the 5 November 2025 conversation was acknowledged by Mr Brown.
Further, Mr Brown’s recollection of the numerous conversations that he says he had with Mr Doueihi over that period is not set out in any detail in his affidavits. The criticism made by Mr Luitingh of Mr Doueihi’s evidence (that he did not recall very much) can equally be levelled at Mr Brown. On his own account of events, there were numerous calls between him and Mr Doueihi over the period from late November to December 2025. Much must have been said that has not been recounted by either of the participants to those conversations.
The above makes it difficult for me to place reliance on the account given by Mr Brown of his conversations with Mr Doueihi. It is not necessary to make any findings of dishonesty or untruthfulness. Rather, Mr Brown’s evidence, and the way it emerged, piecemeal, on the reopening of the hearing bears all the hallmarks of a witness who has rehearsed in his or her mind the course of events so many times that he or she is convinced of the accuracy of his or her recollection of what was said and then presents that as the fact. In that regard, the caution as to the fallibility of human memory is apt (see Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) at 319).

As to Mr Doueihi, his evidence was the subject of strident criticism by Mr Luitingh – that it was evasive and not candid (17/04/26; T 123) – who submitted at one stage that none of his evidence could be accepted. It was suggested that Mr Doueihi’s evidence was “to deny any aspect of liability that he may have attracted” and, as adverted to above, he was criticised for having “after a considerable period of time where there are many conversations” giving evidence of “nothing other than he can’t remember” (17/04/26; T 123). (That last criticism is somewhat selective in the sense that Mr Brown himself gave very little evidence of the numerous conversations he said he had with Mr Doueihi, including the approximately two and a half hour conversation on 5 November 2025 that was not referred to in his first reopening affidavit.)
Ms Brown submits that Mr Doueihi was a poor communicator and points out that, save for his communications with the subcontractors, there is little or no correspondence with Mr Brown, contrary to his assertion that he communicated with Mr Brown through emails. (On my review of the material before the Court, there were around a dozen emails from Mr Doueihi to Mr Brown in evidence.)
Insofar as Mr Doueihi stated that in his view it was the PCA that had to give notice (29/10/25; T 235), Ms Brown says that he was unable to demonstrate that he had at any time advised the PCA about the status of the build. Ms Brown argues that his normal modus operandi was to ignore his obligations and focus on the core building activities under the contract and under the law to the exclusion of his administrative obligations.
In support of the submission that Mr Doueihi lacked candour, Ms Brown gave as an example that Mr Doueihi “concealed” from Mr Brown the fact that he always intended to use sheet piling and failed to explain to him the consequences of a shoring system that Ms Brown appears to accept was, according to the experts, far riskier. Ms Brown’s submissions seem to go further insofar as she says that there is some force in Ms Rayman’s suggestion that there was a deliberate attempt to conceal when and exactly where the sheet piling activities were going to take place but Ms Brown attributes this suggestion of concealment to Scopeview (Mr Doueihi).
My impression of Mr Doueihi in the witness box was that he was not a sophisticated witness; that he was careful (indeed anxious at times) to ensure that he gave truthful evidence; and that where he did not recall saying things he said so. Mr Doueihi readily accepted that it was possible that he said certain things that were put to him (such as “leave it with me”) but seemed to me to be genuinely bemused by the proposition that he would have told Mr Brown not to send the reports/plans to the Raymans. And Mr Doueihi also seemed to me quite genuine in his explanation as to why he did not respond to either Mr Brown’s email (sent, Mr Brown says, to ensure they were “on the same page”) or Mr Rod’s draft letter. His account that he was uncomfortable with what was being proposed was credible and rang true. Mr Brown was Mr Doueihi’s client and Mr Doueihi regarded him as having become a good friend. On Mr Doueihi’s account, which seems plausible, he was concerned that Mr Brown was upset at the way the hearing had gone (which Mr Brown confirms when he recounts a conversation in which he said he was disgruntled at Mr Doueihi’s evidence) and Mr Doueihi wanted to reassure him.
Mr Doueihi cannot fairly be said to have denied everything that might attract liability. He readily accepted, for example, that he had made the decision to use sheet piling, for example, and he accepted that he was required to comply with the conditions in the Development Consent (though he expected the PCA to do so or assumed that compliance was met by the issuance of the construction certificate).
I accept that the generality of some of Mr Doueihi’s evidence means that it may carry less weight but I do not accept that it should be rejected as dishonest or evasive (as Ms Brown contends). Where the veracity of part of a witness’ evidence is not accepted (or is in doubt), a careful assessment of the rest of that evidence is required in order to determine its honesty and reliability (see Malco Engineering Pty Limited v Ferreira & Ors (1994) 10 NSWCCR 117 – that being a case where a finding of perjury had been made on one part of the evidence), but this does not mean that the balance of that witness’ testimony can never be accepted without corroboration (Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [35]).

Ms Brown says that the assertion by Ms Rayman that Mr Brown was the “driver” of the project, and was therefore material to the construction activities on the Brown Land, is baseless.
In relation to the communication between Mr Brown and Mr Quinton (of MASQ) regarding the request to change Mr Zimmerman’s drawings, Ms Brown notes that Mr Doueihi conceded that those were his instructions and that it was his decision to construct using sheet piles. As to the latter, I note this below; as to the former, Mr Doueihi’s evidence was somewhat qualified – at first he said “possibly, yes” but then he accepted as correct a proposition that he passed the information (that he wanted Mr Zimmerman to remove contiguous piling from his drawings) to Mr Brown to ask him to ensure that the drawing complied with what he intended to do (see 29/10/25; T 238).
In relation to the letter (actually an email) that Ms Brown identifies as being at the centre of the controversy in the credibility dispute between Mr Doueihi and Mr Brown, where Mr Brown points out that there is a duty under Conditions 13 and 14 to notify the neighbours, Ms Brown submits that a homeowner who reads the Development Consent and asks the builder whether or not it is being complied with is not “directing” the builder. Emphasis is placed on the final sentence in the email in which Mr Brown asks “[c]an I send these documents to him”. Ms Brown says that this is a clear indication that Mr Brown is seeking a direction from the person who has possession and control of the site. As I have already indicated (see [130]), I do not accept that in this email Mr Brown is seeking approval from Scopeview as the entity in control and possession of the site. The query is framed by reference to whether approval from the PCA is necessary.
Focusing on the dispute between Scopeview and Ms Rayman, Ms Brown submits that Ms Rayman’s attempt to connect Mr Brown to the engineering and building activities of Scopeview does not succeed as it became clear during the course of cross-examination that not only was Mr Doueihi in complete control of the marshalling of subcontractors on the site but that he did so to the express exclusion of Mr Brown. It is submitted that this can be seen by the many emails exchanged between the subcontractors into which Ms Rayman is not copied.
Ms Brown points out that Mr Brown visited the site once or perhaps twice a week. Ms Brown submits that Mr Brown could not possibly have known what activities were being carried on and, on that account, would not be in a position, practically and physically, to give notice to the neighbours, unless he was specifically told by Scopeview to do so. (That submission fails to take into account that it was perfectly practical for Mr Brown of his own volition to have obtained the documents from Mr Doueihi in order to comply with the notification requirements without any direction to do so.)
Ms Brown says that, even when Mr Brown was provided with the 2019 Dilapidation Report, he asked Mr Doueihi if it was “OK to send” (see [183]). Ms Brown submits that this clearly suggests that Mr Brown looked to Mr Doueihi to provide him with guidance and instruction on what functions to perform (and that this is counterintuitive to the submission made on behalf of Ms Rayman that Mr Brown was the “driving force”). I consider, however, that Mr Brown’s query in this regard seems most likely to be due to his recognition that the document was inconsistent with the type of piling system to be used.
Ms Brown submits that it was quite apparent that Mr Brown was unsure of what he was to do and looked to Mr Doueihi to give him advice because, under cl 13.1 of the Contract, Scopeview was in exclusive possession and control of the site. Further, Ms Brown argues that this was apparent from Mr Brown’s answers under cross-examination when it was put to him that he was deliberately downplaying his knowledge of the contract regime (see the extracts from his cross-examination above).
Ms Brown characterises Mr Brown as being “at the mercy of his ignorance” and says that he was naively persuaded to put forward the proposition that they should proceed with sheet piling when in fact that decision was driven by Mr Doueihi, and that, by that conduct, Mr Brown was made vulnerable. I have difficulty accepting that Mr Brown was naively persuaded to put forward any such proposition. That is inconsistent with Mr Brown’s involvement in the project (evidenced by the contemporaneous emails) and his conduct after the hearing in pressing Mr Doueihi as to him changing or rectifying his evidence to accord with Mr Brown’s recollection of events.
My conclusion is that, as between Mr and Ms Brown, Mr Brown was clearly the driving force behind the project. That is hardly a surprising conclusion. It emerges from Ms Brown’s own evidence as to the trust and confidence she reposed in him. Mr Brown was the person communicating with Mr Doueihi in relation to the project (and with others, such as his emails to Mr Quinton). Further, Mr Brown was (and represented himself to Mr Quinton as) the person who endorsed the decision of Mr Doueihi to use the sheet piling.
In that sense it is clearly correct to say that Mr Brown was the driving force behind the project. However, by this I do not mean that Mr Brown was the “driver” or driving force behind the construction and excavation activities on the Brown Land per se. There is no suggestion that Mr Brown was consulted, for example, as to how or when the installation of sheet piles was to occur or the particular type of sheet piles that were to be used or how the vibration limits were to be set or monitored; nor as to where the sheet pile walls were to be located. Mr Brown was not involved in the day-to-day direction or supervision of sub-contractors on the site. Thus, I accept that Mr Brown was not involved in the operational aspects of the project. That said, I do not understand this to be what is here contended by Ms Rayman.
Where the dispute as to Mr Brown being the “driver” of the project comes into play is in the context of the (accepted) non-compliance with the relevant conditions of the Modified Development Consent in relation to the provision of the respective reports/plans to Ms Rayman and notification of commencement of the excavation works. It cannot be disputed that (in a practical sense) Mr Brown assumed responsibility for notifying Mr Stockley, since that is what he did (albeit after first asking Mr Doueihi if he could send the document(s) to him or whether he needed to check first with the PCA). And it was Mr Brown who eventually provided notification to the Raymans. Mr Brown did not query with Mr Doueihi whether the latter had done so. Nor did he complain as to why Mr Doueihi had not done so when taking it upon himself to send the documents to the Raymans on 24 April 2020. In any event, I deal with the issue as to where the obligation to notify lay (and whether it was delegated to Mr Doueihi in due course).
Therefore, as to this finding, I find that Mr Brown was indeed the driving force, in the sense described above, behind the project (but not in an operational construction sense).

Ms Rayman contends that Mr Brown’s evidence that the Martens Report was “too complicated for [him] to understand” (28/10/25; T 151.47), that the report “scared” him (28/10/25; T 161.11), that “to this day” he did not understand it (28/10/25; T 161.11) and that its terms are “illegible stuff” and “totally meaningless” to him (28/10/25; T 161.7), should be rejected.
In that regard, Ms Rayman notes that Mr Brown resiled from that evidence after being presented with objective evidence demonstrating that he did, in fact, understand its terms and had communicated this understanding in writing to Mr Quinton of MASQ on 9 April 2020 (see 28/10/25; T 163, where he said “I obviously do understand”). Further, Ms Rayman points out (and I agree – as indicated earlier) that the recommendation in the Martens Report (see at [53] above) against the use of driven or sheet piles due to the risk posed by vibrations is conveyed in plain language. Ms Rayman further argues that the content of Mr Brown’s affidavit and the language and content of the written communications from him in evidence demonstrate a level of sophistication sufficient to understand the Martens Report. I agree. (Ms Rayman also argues that, if it was the case that the Martens Report was meaningless to Mr Brown, this ought to have been raised in Mr Brown’s evidence-in-chief. It is not necessary to go this far. I draw no adverse inference from the fact that this was only raised in Mr Brown’s evidence in cross-examination.)
I do not accept Mr Brown’s evidence that the Martens Report was too complicated for him to understand. As Ms Rayman has pointed out, Mr Brown resiled from such a proposition in the course of his cross-examination (and his evidence as to it being illegible, meaningless and the like seemed to me at the time to be a generalised overstatement consistent with a tendency to make such statements). While I have no difficulty accepting that Mr Brown, not being a builder or a structural or geotechnical engineer, may have had no understanding at the time he received the Martens Report as to the difference between sheet piling and contiguous piling (and in oral submissions Ms Rayman accepted this (see 31/10/25; T 392)), what any reasonably literate lay person must have understood from a review of the Martens Report was that sheet piling (or more precisely the use of driven and sheet piles) was not recommended due to the risk of harm to adjoining properties of adverse vibration consequences of its use.
Moreover, Mr Brown clearly understood, at least by the time that he was adamantly stating to Mr Quinton (in his 9 April 2020 email) that he wanted to use the sheet piling, not only that there was a difference between the two types of shoring systems but also that the use of sheet piling was not recommended (though he asserted in the email that it was not “disallowed”). Indeed, the fact that Mr Brown was asserting that the use of sheet piling was not “disallowed” by the Martens Report makes clear that Mr Brown was quite capable of reading and understanding what the report said (and seemingly relying on that to encourage Mr Quinton in relation to the request Mr Brown was asking him to make of Mr Zimmerman).
As I have explained when addressing the credibility and reliability of Mr Brown’s evidence, Mr Brown had a tendency at times to advocate his wife’s case and to make broad or generalised assertions seemingly off the top of his head to advance that case. I regard his protestation that the Martens Report was unintelligible and meaningless to him as most likely falling within that category. I do not need to go further and make any finding that Mr Brown deliberately downplayed his level of sophistication. Suffice it to find, as I do, that at least by 9 April 2020 Mr Brown well knew that the Martens Report did not recommend sheet piling and, by then or shortly thereafter, that there needed to be a change to the shoring plans and drawings to reflect that.

Ms Rayman next seeks a finding that Mr Brown read and understood Conditions 13 and 14 of the Modified Development Consent (which was received by Mr Brown on or around 25 September 2019) and that Mr Brown understood that: first, a construction certificate was needed before works could start; second, that certain conditions needed to be satisfied prior to the issuance of a construction certificate; third, that his role extended (in part) to ensuring compliance with some of the conditions in the Modified Development Consent; and, fourth, that complying with the notice requirements to neighbours (Conditions 13 and 14) was an important issue.
Mr Brown’s own evidence was that he “most probably” read the Modified Development Consent around the time it was issued (28/10/25; T 152). Mr Brown admitted that he read and understood Conditions 13 and 14 (28/10/25; T 156). Indeed, he extracted and sent them to Mr Doueihi on 1 March 2020. And, as noted in the chronology I have set out above, Ms Brown herself appears to have read at least part of Condition 14 as she took a photograph on her phone of that condition and sent it to the foreman (Jason) in February 2020 (before any request had been made by Mr Stockley on 1 March 2020 as to the provision of the relevant reports).
Mr Brown accepted that he understood what a construction certificate was and that it was needed before works could start (28/10/25; 154.25-30). Further, Mr Brown must have understood that certain conditions of the Modified Development Consent needed to be satisfied prior to the issuance of a construction certificate because he (as was Ms Brown) was asked to sign a declaration in relation thereto.
Mr Brown also accepted that his role extended at least to ensuring compliance with the owner’s contribution levies requirement in the Modified Development Consent, since this was the context in which he made the request of Mr Doueihi on 30 January 2020 for the exclusion of demolition costs and provisional sums (to reduce the amount payable by way of owner’s contribution levies) (see [92] above).
I therefore find that Mr Brown read and understood Conditions 13 and 14 of the Modified Development Consent and that Mr Brown understood the first three of the four particular matters set out at [729] above as to his understanding.
As to the last of the four particular matters (that Mr Brown understood compliance with the notice requirements to neighbours to be an important issue), that conclusion may also readily be drawn from the fact that Mr Brown personally forwarded the relevant documents to Mr Stockley (after checking that it was “OK” to do so with Mr Doueihi) and he also, eventually, personally sent those documents to Mr Rayman and Mr Weinberg. Furthermore, by mid-November 2020, Mr Brown had received four documents warning of the risk of damage to adjoining properties (the Martens Report, the Development Consent, the Modified Development Consent and the 2019 Dilapidation Report) from which he must have understood the importance of notification to his neighbours of information in relation to the excavation works to be undertaken on the Brown Land.
In any event, whether Mr Brown thought compliance with the notice requirements in the Modified Development Consent was an important issue is not to my mind to the point. Rather, the relevant questions are as to whose obligation it was under the Modified Development Consent to comply with those conditions (see below at [1084]) and whether that obligation or duty was delegable (and, if so, whether it was in fact delegated to Mr Doueihi) (see below at [1085]). Ms Brown’s position in that regard is that the obligation to comply with the Development Conditions (whether that be hers alone, as owner, or one that also bound Scopeview, as part of its obligation under the Contract to carry out the works in compliance with the Development Consent) was delegable and had either been delegated to Mr Doueihi or he had assumed responsibility for compliance with it. I deal with this issue in due course.
Were it necessary to make a finding as to whether Mr Brown understood that compliance with Conditions 13 and 14 was an important issue, I would conclude that, at least by March 2020, he did.

Ms Rayman seeks a finding that Mr Brown read the 2019 Dilapidation Report received on 15 November 2019 and understood from its terms that: the proposed development involved “substantial excavation”; the excavation itself required a fair amount of expertise and consideration for the neighbourhood; and that, to accommodate the integrity of the Rayman Home, a shoring system had been devised consisting of contiguous piering and strutting.
There is no doubt that Mr Brown must have understood at the time of the 2019 Dilapidation Report that the development required substantial excavation and he surely must have appreciated that the redevelopment required both expertise and consideration for adjoining properties. As already noted, the proposed development involved excavation for a new three-story building and in-ground pool; Mr Brown (on behalf of Ms Brown) had, through Scopeview, engaged various consultants to provide advice and to perform work in relation to the development; and the Development Conditions themselves required that there be reports confirming that damage to adjoining properties would not be caused by the excavation or earthworks associated with the development.
As to whether Mr Brown understood, at the time he received and read the 2019 Dilapidation Report, that it made reference to a contiguous piering system, and that this differed from a sheet piling system, I repeat the observations in relation to the fourth of the factual findings sought by Ms Rayman above. Certainly, by no later than the time he sent his email dated 9 April 2020 (saying “[b]asically, I want to use the sheet piling”), Mr Brown was aware that there was a difference between the two shoring systems (even if he did not understand precisely what the difference was) and he clearly knew that the Zimmerman temporary shoring drawings made provision for something other than sheet piling because this was the subject of the request he made (he says under Mr Doueihi’s direction – which Mr Doueihi accepts was likely) of Mr Quinton to ask Mr Zimmerman to amend those drawings.
I therefore find that, at least by 9 April 2020, Mr Brown was aware that the 2019 Dilapidation Report (and Mr Zimmerman’s temporary shoring drawings) made provision for contiguous piering and strutting and that this was different from sheet piling.

Ms Rayman seeks a finding that a decision was made on around about 15 January 2020 (when Mr Brown emailed Scopeview a PDF copy of the Martens Report that had already been included in the Dropbox folder sent earlier to Mr Doueihi in December 2019) to change the shoring system from contiguous piering to sheet piling.
Ms Rayman seeks such a finding for the following four reasons: first, that between 19 December 2019 (when the quote providing for “continuous” [sic] piling was issued) and 21 January 2020 (when the Contract was signed including a progress payment relating to sheet piling), the price of the works had decreased; second, that Mr Brown accepted that he “possibly” had conversations with Mr Doueihi around this time about piling and that something had triggered him to send the Martens Report to Mr Doueihi (which he guessed was the piling (see 28/10/25; T 164-165)); third, that all experts agreed that sheet piling was cheaper than contiguous concrete piering (though I note that Mr Doueihi himself did not think it was cheaper); and, fourth, that there would be no need to email the Martens Report to Mr Doueihi unless there were going to be some change to the piling.
Ms Rayman points to Mr Doueihi’s evidence that there were discussions between him and Mr Brown about the Contract prior to entering into it; that they went through the contract together; that he explained what sheet piling was to Mr Brown before the Contract was entered into (see 29/10/25; T 231-233); and that, by 21 January 2020, he (Mr Doueihi) had decided to use sheet piling.
Ms Rayman thus contends that, by 21 January 2020, when the Contract was signed making specific reference to sheet piles, both Mr Doueihi and Mr Brown had agreed to use a sheet piling system. Ms Rayman submits that the evidence by Mr Brown in cross-examination that this was the first time (i.e., in the witness box) that he had seen this in the Contract (28/10/25; T 165) should be rejected in light of Mr Brown’s evidence that the Contract was a “very important” document (28/10/25; T 164) and that he had obtained legal advice with respect to whether it is “okay to sign” (28/10/25; T 165).
In closing submissions for Ms Brown, it was disputed that there was a decision “to change” the shoring system from contiguous piering to sheet piling. Specifically, Mr Luitingh said that there was no change; that there was only ever a recommendation (not to use sheet piling) (see 31/10/25; T 419). However, on any view of things, the provision to Scopeview of the Martens Report recommending against sheet piling and of documents providing for contiguous piering and strutting, followed by the provision by Scopeview of a quote that encompassed “continuous” piling (which was clearly a typographical error meaning “contiguous”) followed by a Contract specifying progress payments including for sheet piling is ample evidence of a change at that stage in the proposed temporary shoring system to be used for the development. The suggestion that this was not a “change” because the Martens Report was only a recommendation is no more than a semantic quibble.
In any event, Ms Brown says that it is clear that the real issue in dispute in this regard is between Ms Rayman and Scopeview; and Ms Brown says that the decision to proceed with sheet piling was clearly that of Scopeview.
Ms Brown accepts that at some time during March and April 2020 a conversation must have taken place between Mr Doueihi and Mr Brown in relation to the use of sheet piling because Mr Brown sent the 9 April 2020 email to Mr Quinton expressing the view that he would like to use the sheet piling. However, as to the choice to use sheet piling, Ms Brown points to Mr Brown’s explanation for this as being that they had lost time and that, according to Mr Doueihi, they could make that up by using sheet piling which was quicker to install. Ms Brown says that it is clear that Mr Doueihi wanted to use the sheet piling from the outset because he was unfamiliar with contiguous piling and that it was further clear that Mr Doueihi did not appreciate the risks of sheet piling versus contiguous piling (so Ms Brown argues that Mr Doueihi could not have explained that to Mr Brown).
The significance of the time at which (and by whom) the decision to use sheet piling was made is that, in Ms Rayman’s oral submissions, her case was identified as being that the failure to take reasonable care commenced in the period from 19 December 2019 through to 21 January 2020 (see at 31/10/25; T 397). Ms Rayman emphasises in this regard that, at the time the Contract was signed, there was no advice from any third party or any alternative geotechnical report addressing the suitability of contiguous piering or piling (as opposed to sheet piling). Ms Rayman thus argues that there was nothing that would permit someone (acting reasonably) to ignore the warnings in the documents that had been issued up to that point.
In that regard, as already noted in the chronology of events above, Mr Doueihi, in the witness box, gave evidence that before the Contract was signed he had obtained a verbal opinion from Mr Orr of Meso to the effect that sheet piling could be used in the North Bondi area. As Ms Rayman points out, there is no evidence that Mr Orr at that stage had plans or information as to the site or the proposed development. He did not have the Martens Report or Zimmerman drawings until 31 October 2020.
As to who made the ultimate decision to use a sheet piling system, Scopeview accepts that Mr Doueihi’s evidence was that he made a decision in his mind to use sheet piling prior to finalising the Contract in January 2020. However, Scopeview submits that, insofar as Mr Brown sought to present himself as having made no decision on the matter, Mr Brown’s evidence should be rejected. Scopeview refers in this context to Mr Brown’s 9 April 2020 email to Mr Quinton in which Mr Brown stated “[b]asically, I want to use the sheet piling”.
Scopeview also argues that its role was to execute the works in accordance with the instructions of the Browns. Scopeview says that, other than Mr Doueihi being more familiar with sheet piling than he was with contiguous piling and sheet piling being quicker than contiguous piling, Scopeview did not obtain a particular advantage in using sheet piling. Scopeview submits that Mr Brown’s evidence that his statement “I want to use the sheet piling” should be construed, not as an instruction from him, but as an instruction from Mr Doueihi, should be rejected. Scopeview further submits that Mr Brown’s explanation (that his use of the first person in the statement “I want to use” was a “pronunciation of authority … for MASQ Architect I wanted to make as if the instruction came from me” (29/10/25; T 187)) should be rejected. In that regard, Scopeview submits that, taken at face value, Mr Brown’s explanation suggested that he was attempting to convey a false impression to his architect to engineer an outcome that he could easily have achieved by simply telling Mr Quinton that it was Mr Doueihi who needed a single set of shoring plans to be approved by the certifier.
As to this factual issue, the objective evidence makes clear that the initial proposal (recorded in the Zimmerman 2019 Dilapidation Report) was for the use of contiguous piering and strutting (or contiguous piling) as the temporary shoring system. Mr Doueihi’s initial quote was for “continuous” ([sic], contiguous piling) but the Contract contemplated the use of sheet piling. Mr Doueihi admitted in cross-examination that, in his mind, by the time of the Contract, he had “definitely” decided to use sheet piling.
I find that at some time between 19 December 2019, when the quote was issued, and 21 January 2020, when the Contract was signed, a decision had been made at least by Mr Doueihi to use sheet piling (and Mr Brown was aware of that to the extent that Mr Doueihi had discussed with him the use of sheet piling).
Such a decision by Mr Doueihi is perhaps unsurprising in circumstances where Mr Doueihi had never previously used contiguous piering or piling for a development project (although it should be noted that he also had limited experience in the use of sheet piling – one project in Matraville – at that stage). Further, if Mr Doueihi’s evidence that he spoke to Mr Orr prior to the Contract about the use of sheet piling in the North Bondi area (see [96] above) were to have been accepted (cf [97] above) this would also be consistent with Mr Doueihi having decided to use sheet piling at that stage.
What is not clear, however, is that Mr Brown appreciated at the time the Contract was entered into that the shoring system proposed to be used had changed from contiguous piering or piling to sheet piling (since it is not clear that the difference between the two systems was explained to him at the time).
Certainly, by signing the Contract which made provision for sheet piling (in the specification for this as one of the milestones for a progress payment), it can be said that Ms Brown endorsed the decision to proceed with sheet piling but I do not consider that the evidence establishes that Mr Brown appreciated this or its significance at the time.
The fact that the fixed price for the construction works had decreased (by reference in large part, it may be inferred, to the change to sheet piling) does not lead me to conclude that Mr Brown appreciated that this was due to a change to the proposed shoring system. The fact that the experts all agreed that sheet piling would be cheaper goes nowhere because on Mr Doueihi’s evidence he did not understand this and, to the extent that he discussed this with Mr Brown at the time, it is unlikely that the decrease in price would have been the explanation for the decision. As to the submission that there would have been no reason for Mr Brown to send a PDF copy of the Martens Report on 15 January 2020 unless there were going to be a change to the piling, I am unable to conclude that this was the reason Mr Brown did so. Certainly, Mr Brown “guessed” that it had something to do with the piling but that answer had the flavour of speculation.
Thus, while I find that Mr Doueihi had made a decision sometime between 19 December 2019 and 21 January 2020 to use sheet piling and that Ms Brown, by signing the Contract, endorsed that decision (since she must be taken to have agreed with its terms, which provided for a progress payment in relation to sheet piling), I do not find that Mr Brown (whose conduct is to be imputed to Ms Brown – see [709] above) had made such a decision prior to entry into the Contract.

Ms Rayman seeks a number of findings in respect of the 1 March 2020 email Mr Brown sent to Mr Doueihi. First, that Mr Brown extracted Conditions 13 and 14 from the Modified Development Consent, turned his attention to those conditions and understood that he (Mr Brown) had to comply with them. Second, that no instruction or direction was given by Mr Brown to Scopeview to comply with Conditions 13 and 14. Third, that Mr Brown took it upon himself to satisfy Conditions 13 and 14 and was asking Mr Doueihi whether he could send certain documents to Mr Stockley. Fourth, that Mr Brown understood that it was important to notify adjoining neighbours, including Ms Rayman.
As to the first of the findings sought by Ms Rayman in relation to the 1 March 2020 email, I accept that Mr Brown must have turned his mind to Conditions 13 and 14 at this time because he extracted them and sent them to Mr Doueihi. As to whether Mr Brown understood that he (or, more precisely, his wife) needed (as owner) to comply with them, the 1 March 2020 email does not make this clear. Rather, I consider that what can be drawn from this email is that Mr Brown understood that there needed to be compliance (by someone – whether the owner, Ms Brown, or Scopeview) with those conditions and that Mr Brown was proposing that he do so.
As to the second of these findings, I consider that one cannot discern from this email any instruction or direction given by Mr Brown to Mr Doueihi (i.e., Scopeview) to comply with Conditions 13 and 14; and, in the absence of any other evidence that he did so, I find that no such instruction or direction was given.
As to the third, as already noted, I find that Mr Brown took it upon himself to satisfy Conditions 13 and 14 insofar as Mr Stockley was concerned. That is abundantly clear from the 1 March 2020 email. As to Mr Brown’s evidence that he asked Mr Doueihi if it was “OK” to send the documents this because Mr Doueihi (or Scopeview) had “control of the property” (28/10/25; T 181), I do not accept that this is the most plausible reason for the query. The more plausible reason, which emerges from the 1 March 2020 email itself, is that Mr Brown wanted to know if he was required to check first with the PCA before so doing. Why he had a query as to whether it was necessary to check this with the certifier was not explored (and Mr Brown’s evidence as to why he checked later if it was “OK” to send the documents to the Raymans suggested that he thought there might be a problem doing so since they showed an inconsistent shoring system). In any event, I cannot accept that the fact that Scopeview had “control of the property” was the reason for Mr Brown’s enquiry in the 1 March 2020 email.
I note that Ms Brown submits that it is apparent from this email (and other evidence, such as Mr Doueihi’s concession that he provided Mr Brown with information to send to other people such as the communication that he wanted to relay to Mr Zimmerman to change the drawings from contiguous piles to sheet piles and to remove the reference to contiguous piles adding the words “to be done by others”) that Mr Brown did “not take a step” without asking Mr Doueihi. (Ms Brown contends that Mr Brown was adopting the same modus operandi as he did in relation to the request for amendment to the Zimmerman drawings, when he asked whether or not he should send the documents to Mr Stockley.) I have already addressed the nub of this submission when dealing with the contention that Mr Brown was the “driving force” behind the project.
Therefore, as to the last of the findings sought by Ms Rayman in relation to this email, were it necessary to make a finding on this issue, I would have concluded that Mr Brown understood at least by March 2020 that it was important to notify adjoining neighbours (and that this notification extended to what was required for compliance with Conditions 13 and 14).

The two primary findings that Ms Rayman seeks both relate to the contents of this conversation. First, that Mr Doueihi did not tell Mr Brown on or around 2 March 2020 that he must not send the geotechnical report and/or details of the proposed sheet piling to Raymans. Second, that Mr Doueihi did not tell Mr Brown that he (Mr Doueihi) had complied with Conditions 13 and 14 prior to the issuance of the construction certificate on 22 April 2020 (see 31/10/25; T 400).
Ms Rayman relies in support of such findings on the following seven matters.
First, that Mr Brown gave inconsistent evidence when asked why he did not send the Martens Report and details of the proposed sheet piling to Ms Rayman on 2 March 2020: initially saying that Mr Doueihi told him that he (Mr Doueihi) would take care of it; then saying that Mr Doueihi expressly instructed Mr Brown not to send it to Ms Rayman; and, finally, saying that Mr Doueihi was in the middle of changing from one shoring system to the other at this time.
As to this last reason (which was put forward by Mr Brown himself as speculation (28/10/25; T 171)), Ms Rayman argues that this cannot be the case as both parties had agreed to use sheet piling by 21 January 2020. I have addressed that contention in relation to the factual finding under the heading when and who made the decision to change to sheet piling above. The decision by Mr Doueihi to use sheet piling was indeed made by 21 January 2020 (and endorsed when the Contract was signed) but that does not lead to the conclusion that Mr Brown could not have had an understanding as at March 2020 that Mr Doueihi was in the middle of changing to sheet piling – especially since it was at about this time (specifically, as at 9 April 2020 and 14 April 2020) that attempts were made to have changes to the Zimmerman drawings to remove reference to perimeter piles and to the reference to the shoring design to be certified by others. Thus, whenever the decision to use sheet piling was originally made, as the chronology of events set out above shows what was occurring at around 9 to 14 April 2020 was that attempts were being made to obtain revised plans which could be certified for construction of a sheet piling temporary shoring system.
The inference I draw from the chronology of events set out earlier is that, after Mr Weinberg raised the issue with the duty planner at Waverley Council as to a concern that there was a proposal to use sheet piling (first by telephone in March 2020 and then by email in April 2020), and in any event when it was appreciated by Mr Doueihi that certified construction drawings (for sheet piling) were required in order to obtain a construction certificate for the excavation and construction works, it was realised (by Mr Doueihi and by 9 April 2020 also by Mr Brown) that it was necessary to remove the reference to contiguous piling from the Zimmerman drawings. This prompted the request made by Mr Brown of Mr Quinton (at, Mr Brown says, Mr Doueihi’s request, which Mr Doueihi appears to accept) to which I have already referred for amendment to the Zimmerman drawings. Understood in this context, the suggestion by Mr Brown that at around March 2020 Mr Doueihi was in the throes of changing from one piling system to another at this time makes sense even if the decision to use sheet piling had been made at a much earlier stage (as I have found it was).
The second matter here relied on by Ms Rayman is that Mr Brown’s evidence that Mr Doueihi told him that he had provided the geotechnical report and details of the proposed sheet piling to Ms Rayman arose for the first time in the course of Mr Brown’s cross-examination and is not supported by any objective evidence. Ms Rayman argues that, if truthful, ought to have been raised in Mr Brown’s evidence-in-chief.
The third matter relied on is that there would be no need for Mr Brown to provide Mr Doueihi’s contact details to Ms Rayman (via Mr Rayman and Mr Weinberg) on 24 April 2020 when notification was provided if he genuinely believed that Mr Doueihi had already provided written notice to Ms Rayman. Relatedly, the fourth matter relied on is that there would be no reason for Mr Brown to ask Mr Doueihi on 24 April 2020 whether Mr Brown could send the dilapidation report to the Raymans if he had already been told that Mr Doueihi would notify Ms Rayman.
The fifth matter relied on is Mr Doueihi’s evidence that he could not recall saying to Mr Brown that he should not send the geotechnical report and details of the proposed sheet piling to Ms Rayman but that he could not “see” himself or “picture” saying that Ms Rayman submitted that this was a measured answer, was consistent with the objective evidence and had the ring of truth. I agree.
The sixth matter relied on is that all the objective evidence indicates that it was Mr Brown who notified his neighbours. I accept that this is the case. Mr Doueihi’s “memory” as to disclosures related solely to neighbourhood “doorknocking” (by Scopeview employees) at about the time that excavation works were about to commence (29/10/25; T 226). The only statement that Mr Doueihi had told Mr Brown that he had done so came in the course of Mr Brown’s cross-examination (29/10/25; T 175-176) and appears to be contradicted by other evidence of Mr Brown to the effect that he had not understood that Mr Doueihi had notified the Raymans (see above at [310]-[311]).
Ms Rayman argues that the fact that Mr Brown personally emailed the geotechnical report and other documents to Mr Stockley four weeks prior to the construction certificate being issued shows that it was always within Mr Brown’s capacity both to understand and to comply with the Modified Development Consent Conditions. Ms Rayman says that there was no need for Mr Brown to enlist the assistance of Mr Doueihi to achieve compliance with Ms Brown’s duty to supply those documents to Ms Rayman within that timeframe.
The seventh matter relied on is that it is consistent with Ms Brown’s evidence that the first person she instructed to provide sheet piling details after discussing it with Mr Weinberg was Mr Brown (not Mr Doueihi), notwithstanding that she had Mr Doueihi’s contact details.
Ms Rayman argues that if an agreement, as contended for by Mr Brown, did in fact take place in the 2 March 2020 telephone conversation, then such a matter of importance relating to critical earthworks would logically be supported by a text, email or other contemporaneous document created in March 2020 and sent by Mr Brown to Mr Doueihi confirming acceptance by Mr Doueihi of this statutory burden; and Ms Rayman emphasises that there is none.
Scopeview, in its submissions, emphasises that Mr Doueihi consistently rejected the suggestion that he told Mr Brown not to send the geotechnical report and the like to the Raymans. Scopeview submits that Mr Doueihi had no reason to tell Mr Brown not to provide the reports, and that no reason was advanced as to why Mr Doueihi would wish Mr Brown to do so.
The first of the findings here sought by Ms Rayman (that Mr Doueihi did not tell Mr Brown that he must not send the documents to the Raymans) squarely raises the contest explored in the reopened hearing, so I deal with that first.
I am unable to conclude on the evidence before me that Mr Doueihi told Mr Brown on 2 March 2020 (or at any other time) that he (Mr Brown) must not send the geotechnical report or details of sheet piling to the Raymans. It is not plausible that Mr Doueihi gave such an instruction or direction in relation to the Raymans when he had not given any such instruction or direction in relation to Mr Stockley. Mr Doueihi’s evidence that he saw no reason why he would have said that makes sense. It is difficult to see what Mr Doueihi would have thought he might gain by not disclosing it.
As I indicated in the course of cross-examination in the first hearing (see 29/10/25; T 265), in relation to the dispute as to whether he had told Mr Brown not to send documents to the Raymans, Mr Doueihi said consistently that he did not recall saying it to Mr Brown and that he did not see himself saying that. In these circumstances, any concession that it was possible that he had said is one on which I could place very little weight.
It was put to Mr Brown in effect that he wanted to conceal these documents from the Raymans (which he denied). Perhaps ironically, Mr Brown himself suggested that Mr Doueihi may have sought to do so for similar reasons (see 28/10/25; T 171), while in the throes of changing the plans to reflect that sheet piling was to be used. As to Mr Doueihi’s remark that “I don’t see why I would say that”, Ms Brown submits that it was obviously because Mr Doueihi wanted to proceed with the sheet piling and not raise it as a contest between himself and the neighbours, particularly the one neighbour that was likely to complain, and in the light of the fact that Meso had advised him that the neighbours were more than likely to complain. Ms Brown submits that Mr Doueihi had “every reason” to tell Mr Brown not to send the documents to Ms Rayman. I do not accept this. It is by no means apparent to me that Mr Doueihi would have any interest in so doing – or indeed that Mr Doueihi attached any real significance to the inconsistency between the IDC reports (which had been provided to Mr Stockley in response to his request and the 2019 Dilapidation Report or Zimmerman documents which referred to contiguous piering and strutting).
As I have said, Mr Doueihi’s response that he did not see why he would tell Mr Brown not to send that material rang true to me.
What is abundantly clear from the evidence on the reopening, as I have referred to above, is that Mr Brown not only discussed with Mr Doueihi on numerous occasions the evidence given at the hearing, but also presented Mr Doueihi with his (Mr Brown’s) account of what he says Mr Doueihi had said to him to make sure they were “on the same page”. That account was then incorporated or reflected in the draft letter Mr Rod prepared and sent to Mr Doueihi.
That gives me great difficulty in accepting that Mr Brown’s evidence as to what Mr Doueihi said on 18 November 2025 (even if Mr Doueihi did say this) is a reliable account of events (as opposed to one produced as a result of numerous discussions in which Mr Brown had been involved). It must be noted that Mr Doueihi had no obvious interest in “rectifying” the record of his evidence as opposed to Mr Brown who seems to have been focused on vindicating his credibility as a witness.
On his own version of events, Mr Doueihi had the discussion about sheet piling prior to the signing of the Contract and did not explain the difference between sheet piling and contiguous piling to Mr Brown prior to the signing of the Contract but nevertheless included it in the Contract notwithstanding the fact that the Martens Report called for contiguous piling. Ms Brown says that Mr Doueihi concealed from Mr Brown the fact that he always intended to use sheet piling and that Mr Doueihi concealed it from Ms Rayman and her husband. I do not find that the evidence supports a finding that Mr Doueihi actively or intentionally concealed his intention to use sheet piling from Mr Brown. Mr Doueihi accepted when it was put to him that he had discussed sheet piling with Mr Brown before the Contract was signed (see [349]-[350] above).
Adopting a charitable view, I consider that Mr Brown’s evidence that Mr Doueihi did tell him not to send (or that he must not send) the geotechnical report and sheet piling details to the Raymans (which was given for the first time in cross-examination and struck me at the time as having the flavour of an overstatement perhaps by way of emphasis to disclaim any responsibility for notification) is most likely due to Mr Brown’s subjective interpretation as to what was conveyed by the statement he first attributed to Mr Doueihi, namely “leave it with me”.
That said, as I have already indicated, I do not make a finding that Mr Brown’s evidence on that issue was untruthful. I simply have concluded that Mr Doueihi’s evidence better accords with the contemporaneous documents (none of which refers to any such positive direction by Mr Doueihi not to send the documents) and with the common sense logic of events (as well as the fact that Mr Brown only proffered this evidence in the witness box for the first time).
One witness’ evidence may be preferred over another on a particular topic without making any finding of untruthfulness. As indicated above, the more charitable explanation for Mr Brown’s assertion that Mr Doueihi positively instructed him not to send the documents to the Raymans (as adverted to above) is that Mr Brown in his own mind interpreted “leave it with me” as an instruction not to do so (an interpretation which Mr Doueihi consistently rejected despite persistent attempts by Mr Luitingh to obtain such a concession and an interpretation which I reject).
Mr Doueihi’s evidence was consistently that he did not recall having a conversation with Mr Brown that he should leave notifying the neighbours to Mr Doueihi but that if “such a conversation occurred” he may have said “leave it with me” as that is an expression he commonly used (see [41] of his 26 February 2026 affidavit). Therefore, while I accept that it is possible that Mr Doueihi said to Mr Brown words to the effect “leave it [i.e., the notification of the Raymans] with me”, I cannot accept that Mr Doueihi positively instructed or directed Mr Brown not to make such a notification.
As to the questions put to Mr Doueihi in cross-examination about what Mr Doueihi meant by the expression “leave it with me”, I do not consider that this assists in determining the issue of liability – rather, the question (insofar as that goes to the foreseeability of risk of harm as Ms Brown contended it did) is what a reasonable person in the position of Mr Brown would have understood was being conveyed to him.
In that regard, I do not accept that a reasonable person would understand the words “leave it with me” to amount to a positive direction not to do that which was said could be left with the speaker. I accept that the expression would convey an assurance that something would be done and that the reasonable person could well understand this to be an assumption of responsibility on the part of the person saying “leave it with me” but I do not accept that this amounts to a direction proscribing the doing of that very thing. Mr Doueihi was adamant that he did not tell Mr Brown not to send the notifications to the Raymans. I accept his evidence on that issue. There seems to me no logical reason for Mr Doueihi to have given such an instruction in circumstances where he had no apparent objection to Mr Brown providing the relevant notification or reports to Mr Stockley.
Therefore, I find on the balance of probabilities that Mr Doueihi did not tell Mr Brown that he must not send the geotechnical report and sheet piling details to the Raymans.
As to the second aspect of the finding here sought by Ms Rayman (that Mr Doueihi did not tell Mr Brown that he (Mr Brown) had complied with Conditions 13 and 14 prior to the issue of the Construction Certificate on 22 April 2020), I am comfortably persuaded that such a finding should be made. Mr Brown’s evidence that Mr Doueihi said he had done so was contradicted by other evidence and it makes no sense that Mr Brown would have enquired whether it was “OK” for him to send the details to Mr Stockley if he had been told at that time that Mr Doueihi had already done so. Significantly, if Mr Brown thought that Mr Doueihi had told him that he had notified the neighbours as required by Conditions 13 and 14, it makes no sense that Mr Brown would not have made some complaint at the time he learnt that Mr Doueihi had not done so.
Related to the finding here sought, is the question whether Mr Doueihi assumed responsibility, vis à vis Ms Brown, to notify the neighbours. The highest that the evidence goes is that Mr Doueihi may have said “leave it with me” and if he did he would have intended to do so. To my mind, that is not a delegation by Mr Brown of responsibility to Mr Doueihi nor is it a clear assumption of responsibility by Mr Doueihi for notifying the neighbours (although I accept that, if it had been said, it would convey or represent that he would do so). Relevantly, however, Mr Brown’s email to Mr Stockley does not suggest that Mr Doueihi had assumed responsibility for this (since it included the contact details for the builder). Any belief by Mr Brown that the responsibility for notifying neighbours had been delegated to, or assumed by, Mr Doueihi does not explain the communication, seemingly out of the blue, in late April 2020 by Mr Brown asking whether he could send the 2019 Dilapidation Report to the Raymans.
The evidence as to the circumstances in which the Browns signed the declaration as to compliance with the conditions of the Development Consent does not support the conclusion that they did so on the basis of confirmation from Mr Doueihi as to compliance with the conditions.
Mr Doueihi simply on-forwarded the document he received from PCA to the Raymans for signature. It seems clear from Mr Doueihi’s evidence that he believed that the issuance of the document by PCA amounted to some kind of confirmation by the PCA that the conditions had been satisfied, which cannot have been the case. That was the very issue on which the PCA wanted certification from the Browns. Nor is there any basis for Mr Doueihi’s apparent assumption that the PCA certificate would amount to notification of the neighbours. That was one of the conditions which had to be satisfied prior to commencement of the works. However, if Mr Doueihi did have that belief at the time then it makes it even more unlikely that Mr Doueihi would have told Mr Brown that he had notified the neighbours in compliance with the conditions.
Therefore, I find that Mr Doueihi did not tell Mr Brown that he had complied with Conditions 13 and 14 prior to the issuance of the Construction Certificate on 22 April 2020.

Ms Brown contends for a finding that Mr Doueihi accepted responsibility to inform the neighbours and failed to maintain proper records of what had been done; and for the further finding that, in practical terms, Mr Doueihi was the only person that could ensure compliance with the notice provisions because he was in exclusive possession and control of the site and of the build. Ms Brown argues that there is no evidence adduced by Mr Doueihi to show that he, being the person on site, had provided information to either Mr Brown or the PCA to enable them to provide the notices. (Thus, Ms Brown contends that the failure to provide notice was entirely the function and failure of Scopeview.) This finding has largely been addressed when considering the previous findings as to the disputed content of the 2 March 2020 telephone conversation but, for completeness (and for ease of reference), I address it again briefly here.
As to the first aspect of the finding for which Ms Brown has here contended, Mr Doueihi himself accepted in cross-examination that he had an obligation to notify neighbours of the excavation works but his evidence was that he assumed that the certifier had the same obligation. The extent to which it may be said that Mr Doueihi accepted at the time that he had the responsibility to notify neighbours is therefore somewhat unclear. But if what is meant by this particular finding sought by Ms Brown is that Mr Doueihi assumed responsibility in a legal sense for notification of (or took it upon himself to notify) the neighbours, in the sense that he communicated this in some way to Mr Brown, this comes back to the disputed 2 March 2020 conversation (“leave it with me”) – see above at [771]ff.
I have concluded that Mr Doueihi did not assume responsibility, in a legal sense, vis à vis Ms Brown, for compliance with Conditions 13 and 14 of the Modified Development Consent. Mr Doueihi’s acceptance of the possibility that he may have said “leave it with me” goes no further than raising the possibility that he did so, based on this being an expression he commonly used. He was adamant that he did not recall saying this in the 2 March 2020 conversation (including when under no little pressure from Ms Brown’s camp to do so). The fact that Mr Doueihi’s evidence was that, if he had said this, he would have intended to do what he said takes the matter no further. And the fact that Mr Doueihi actually took no steps after 2 March 2020 to notify the Raymans makes it far more likely (and certainly more likely than not) in my opinion that he did not say this during the conversation on 2 March 2020; and I so find.
As to the proposition that Mr Doueihi failed to keep proper records, that forms part of the pleaded issues and I would not be in a position to make any finding on that issue in the absence of any evidence as to what records were maintained and what one would expect to be maintained in relation to neighbour notification.
As to the further proposition that Mr Doueihi was the only person who could, in practical terms, ensure compliance with the notice provisions, that is belied by the fact that ultimately it was Mr Brown who did so. The contention by Ms Brown that there is no evidence that Mr Doueihi provided information to Mr Brown to enable him to provide the notices goes nowhere, since Mr Brown was clearly able to obtain the relevant documents from Mr Doueihi; and able to do so on 24 April 2020.

Ms Brown submits that, when it came to her attention and that of Mr Brown that notice had not been provided to “the neighbour” (presumably, Ms Rayman), they took immediate steps to ensure that notice was given. Ms Brown refers in this regard to the fact that she personally went to see Mr Weinberg to determine the status of notification and that, upon learning that certain documents had not been delivered to Mr Rayman, Mr Brown immediately forwarded the documents that had not been provided by Scopeview as soon as he received them on 24 April 2020.
Assuming (which is not clear) that these are factual findings for which Ms Brown contends, it is by no means apparent that the factual basis for the first (that Ms Brown went to see Mr Weinberg to determine the status of notification) is established. Ms Brown’s evidence is that she went to see Mr Weinberg when she learnt that someone from the Council had been at the site. It is not clear that she did so upon learning that documents had not been delivered to Ms Rayman (or Mr Rayman for that matter). Nor is it clear when that conversation with Mr Weinberg occurred, although at one stage it was suggested that this was in March 2020. Given that Mr Weinberg’s first (verbal) enquiry with Waverley Council was in mid-March 2020, this seems logical but for all I know it could have been an entirely unconnected enquiry or it could have been not until after Mr Weinberg followed up his verbal enquiry with the written email. Interestingly, as Ms Rayman points out, when Ms Brown had that conversation with Mr Weinberg it was to her husband (not Mr Doueihi) that Ms Brown went to ask that the neighbours be notified of the works.
As to the second (that when Mr Brown learnt that the documents had not been sent to the Raymans he immediately forwarded them on 24 April 2020), it is not clear when Mr Brown became aware that notification had not been served by Mr Doueihi on the Raymans. Certainly, Mr Brown knew that he, himself, had not done so. According to him, when he learnt that Mr Stockley was enquiring as to notification, he asked Mr Doueihi the following day (2 March 2020) as to whether he could send the documents to the Raymans. Mr Brown certainly did not take immediate steps to notify the Raymans at that stage (i.e., when he learnt that the other neighbour, Mr Stockley, had not been notified). He did not do so until 24 April 2020. If the conversation between Ms Brown and Mr Weinberg was the source of Mr Brown’s awareness that the Raymans had not been notified, then there is still no basis to find that Mr Brown at that stage took immediate steps to notify them (unless, which is not suggested, that conversation took place on 24 April 2020).
Accordingly, I do not make these findings.

Relevant to the question of causation on the failure to notify issue, Ms Rayman contends for a finding that, had she, her husband and her father been afforded seven days’ notice of commencement of excavation works (and the required documents) they would have engaged professional consultants (she says most likely Mr Zimmerman) and would have acted in accordance with the advice provided by those professionals; and that the advice would have been to take some form of action either to prevent the excavation works from commencing or to take steps to protect the Rayman Home given the obvious deficiencies in the shoring plans including, inter alia, the inflated alarm and halt vibration levels specified in the plans.
In this regard, Ms Rayman points to her evidence that: she and Mr Weinberg were trying to obtain information from Mr Brown about the excavation prior to it commencing (which she submits is consistent with the objective evidence of verbal and written enquiries having been made by Mr Weinberg with Waverley Council); Mr Weinberg was aware (through Mr Zimmerman) that Ms Brown had changed the shoring system to sheet piling and believed that this was going to cause problems (which she submits is consistent with the email from Mr Zimmerman to Mr Brown expressing his concern about the use of sheet piling); and, after receiving the Martens Report and excavation details, she had a discussion with Mr Weinberg to ascertain what she needed to do and whether professionals needed to be engaged to help her to understand the information.
I have no difficulty making such a finding. It is clear that the Raymans were concerned as to the excavation works in general and, in particular, the prospect of sheet piling being used. Common sense suggests that, had the Raymans been given the requisite period of notice, they would have sought professional advice and I accept that, on the balance of probabilities, they would likely have taken action in accordance with that advice. I do not accept that the fact that they did not take such steps before notification was actually given (but after they had become aware through Mr Zimmerman of a change in the proposed shoring system) detracts from such a conclusion, since it seems to me that the evidence discloses uncertainty on the part of the Raymans as to what actually was going to happen (and whether that would be permitted by Waverley Council).
The very fact that enquiries were made of Waverley Council supports the conclusion that the Raymans would have tried to do something to address the risk posed by the use of sheet piling had they been notified earlier (as does their attempt to raise the issue with the PCA in accordance with the advice given by Waverley Council in its belated response to Mr Weinberg’s enquiries). This disposes of the argument by Ms Brown that loss of opportunity goes nowhere in light of the “constructive notice” that the Raymans had of the decision to use sheet piling. That said, this is ultimately a loss of opportunity claim and it is not necessary to resort to this in light of the findings as to breach on the primary negligence claims.

Two valuers were called as expert witnesses: Mr Field, called by Ms Rayman, whose reports were dated 28 March 2023 (Ex E) and 20 November 2024 (Ex G) and Ms Kristy Kerswell, called by Scopeview, whose report was dated 20 June 2025 (Ex 7). Ms Brown disputes that either of the experts has approached the matter correctly, on the basis that she says both incorrectly assumed the Rayman Home was in good condition, when in fact it was in poor condition.
As noted, two reports from Mr Field were in evidence. The first, issued in March 2023, found that (as at that date) the Rayman Home was valued at $6 million, on the assumption that the property was in good condition and there were no defects or issues due to the adjacent development. Ms Brown says that this did not take account of at least the following facts: the front balcony was rotting and was falling down; the back balcony was leaking and had destroyed the garage roof (pausing here, the submissions seem to have transposed the front and back balconies, since it is the front balcony that is above the garage but the thrust of the submissions is not affected by this); there was structural cracking on the west side; the footings on the sub-floor were not according to plan, were substandard and defective; and the pool support wall had to be removed and re-instated (this last issue being to do with the encroachment claim). Ms Brown submits that if the home was not in good condition then these defects would render the home at a range of $4.5-5.5 million.
The second report was issued in November 2024 valuing the property at $8.6 million, again assuming that the property had not been damaged and was in good condition. Mr Field assessed the diminution in value at $1,150,000.00.
Ms Kerswell provided an expert valuation of the compensable loss and, assuming that the house had only suffered normal wear and tear and remained in the same physical and structural state it was in on 27 April 2020 (prior to the vibration damage), determined the diminution of value at $625,000.00.
Both experts agreed on the methodology of valuation and on the most comparable sale (that being a property at Owen Street, North Bondi) though they disagreed as to whether the subject property was superior or inferior to the comparable sale. Mr Field was of the view that the subject property was superior; Ms Kerswell concluded that it was inferior. There was also disagreement as to the use to be made of, or perhaps more accurately the weight to be placed on, the CoreLogic analysis of market movements in the relevant period on which Ms Kerswell placed reliance.
Ultimately, the difference between the two valuation experts was relatively minor in the scheme of things. Mr Field assessed the value of the subject property as at 22 October 2024 at $8.6 million; Ms Kerswell at $8.075 million as at 23 October 2024 a difference of $525,000.00. The difference was largely attributable to the premium placed by Mr Field on the advantages he perceived in the subject property. What neither of them considered was that there was no diminution in value by reason of the damage sustained to the subject property (as Ms Brown contends), let alone that the sale of the Rayman Land produced a “windfall” (as counsel for Ms Brown at one stage submitted) (27/10/25; T 62), although that submission was later withdrawn (31/10/25; T 433).
Each valuer was of the opinion that the price a prospective purchaser will be prepared to pay for the property may be affected by building defects and the anticipated cost of rectifying those defects. They differed over the degree of knowledge a prospective purchaser should be assumed to have before a valuer may take the cost of rectifying building defects into account. Ms Kerswell pointed out that the purchasers of the Rayman Home made investigations into the cost of rectifying building defects. (As noted in the chronology, the evidence is that the purchasers’ builder had assessed the costs of rectifying “various defects and compliance issues” at $500,000.00 and that the purchasers’ bank required these costs to be taken into account when approving their loan.)
The experts met in conclave and produced a joint report dated 21 October 2025 (Ex H). They gave evidence concurrently.
Various issues were identified as arising from the respective valuation reports, those being as follows (some of which were resolved in the conclave and need not here be dealt with in any detail).
Issue A – configuration of bedrooms and bathrooms. This related to what was explained as a typographical error in Ms Kerswell’s report (that Ms Kerswell had referred to five bedrooms, not six; and to five bathrooms, not five plus a guest “powder room”). Ms Rayman accepts that nothing turns on this issue.
Issue B went to the internal area of the subject premises.
Mr Field, who carried out an internal inspection, proceeded on the basis of an internal area at 368.5 square metres; Ms Kerswell, who carried out a street view, proceeded on the basis that it was 351 square metres. Thus, Mr Field proceeded on the basis that there was about a 5% increase in internal living area over that used by Ms Kerswell in her valuation.
Ultimately, the difference between the experts on this issue related to the weight (if any) to be placed on the extra living area of the subject property.
Ms Kerswell’s opinion was that the difference is immaterial and she did not believe it would have a significant impact on market value. Ms Kerswell considered that most of the value attributable to a property is its configuration of the property (not its internal area), which she clarified as referring to the number of bedrooms, bathrooms and the like (not the aesthetics of the rooms or the functionality or “flow” of the house) (29/10/25; T 276). Ms Kerswell said that she had compared the subject property against the comparable sales evidence and had noted quite a difference between the prices paid for “more bedrooms and bathrooms as opposed to land” but considered that it would be “more substantial for the configuration than the internal area, in terms of an impact on value” (29/10/25; T 274).
While Ms Kerswell agreed that a larger internal area space would (if it did have an impact on the value) operate to increase, not decrease, the value, in the concurrent hearing Ms Kerswell reiterated her view that the majority of the value lies in the configuration of the property (29/10/25; T 273-274). Ms Kerswell accepted that the nub of her opinion was that there would be a slight increase in value but said that it could not be quantified and she considered it to be relatively immaterial.
Mr Field accepted that configuration was an important factor (as was functionality) but maintained that area was also important. His position was that a greater internal area must be worth at least a dollar more (and certainly could not be a negative) (29/10/25; T 275-276). (With respect, that opinion has the virtue that it accords with common sense in circumstances where it is common knowledge that properties are advertised with reference to their size and the number of bedrooms, bathrooms and the like.)
Issue C (as to land area) was agreed and need not here be set out. It was agreed that the higher land area put forward by Mr Field was correct but also that this had no impact on the assessment of market value.
Issue D related to the correct treatment of “market movements”. The experts agreed that the most accurate way of providing a valuation was by use of comparable sales evidence but, as adverted to above, they disagreed as to whether the subject property was inferior or superior to the agreed comparable property (the Owen Street property). The experts agreed that one did not need to be concerned about adjusting for prior sales because they had agreed on the most comparable sale when assessing the value of the subject property in October 2024 (29/10/25; T 278). However, Ms Kerswell considered that Issue D remained relevant, even with agreement as to the comparable property, saying that her analysis of the sale of the Owen Street property was partially shaped by how she had interpreted other sales evidence and that, because some of that sales evidence was dated, she had had to make adjustments for market movements to it. Ms Kerswell explained that there was some dispute about how to bring those dated sales back to the date of valuation and how to account for the market movements that occurred from when they did sell (29/10/25; T 278). Ms Kerswell argued that one should look to a broader pattern of comparable evidence as opposed to relying solely on the closest comparable sale, arguing that this was how the market movements argument “comes into play” (29/10/25; T 278).
Mr Field strongly disagreed with the proposition that the analysis of market movements provided a good indication of value (29/10/25; T 279). Mr Field did not think that earlier sales were particularly relevant when analysing the key sale in determining which property (the subject property or the comparable property) was superior or inferior (29/10/25; T 279). He did not believe that what happened in 2022, for instance, was particularly relevant to analysis of the sale in 2024 of the Owen Street property (29/10/25; T 279). Thus, while he accepted that it was appropriate to consider a range of sales which set the lower end and the upper end of the market value range, Mr Field attributed less weight to sales in 2022/2023 (29/10/25; T 279). Mr Field explained that, in the eastern suburbs, adjustment for the market movement would be “fine” if one had hypothetically two identical properties, so that if one sold a year earlier the question would be “well how much did it go up by in that last 12 month period” (29/10/25; T 279), but he considered that one should attribute “cautious reliance” upon third party statistical gross rates and using such adjustments, which he said may or may not be correct (this being a reference to the CoreLogic metrics which Ms Kerswell had used) (29/10/25; T 280).
Ms Kerswell did not disagree with Mr Field’s above observation (29/10/25; T 280). Ms Kerswell considered that less weight should be placed on dated sales evidence that had been adjusted for time but maintained that it was nevertheless very relevant (29/10/25; T 280). Ms Kerswell said that in her first valuation report she had selected sales evidence in locations very comparable to the subject property (avoiding streets that were not very comparable to that of the subject because that required the making of very discretionary and very subjective adjustments) (29/10/25; T 280). Ms Kerswell considered that, where there is a paucity of comparable sales evidence, “if you must make an adjustment, … it is safe as to make an adjustment for market movements, because it is the adjustment that requires the least amount of subjectivity and discretion” (29/10/25; T 280).
Ms Kerswell disagreed with Mr Field’s criticism as to the reliability of CoreLogic’s figures, saying that in her experience she had found them to be quite reliable in most circumstances (29/10/25; T 280). Ms Kerswell distinguished between a “very prestige property” at the upper end of the market (for which she did not think the CoreLogic analysis should be used) and “a relatively standard house in North Bondi” (saying that in these circumstances it was appropriate to use market movements) (29/10/25; T 280).
Ms Kerswell also referred to the re‑sale of one of the properties that both experts had deemed to be comparable (a property at Murriverie Road, North Bondi), which had first sold on 2 December 2023 for $8.1 million when it was brand new (29/10/25; T 280-281). Mr Field had drawn her attention during their conclave to the re-sale of that property on 1 July 2025 for $8.04 million (29/10/25; T 281). In what Ms Kerwell herself described as a convoluted analysis that had only occurred to her after the conclave and joint report, Ms Kerswell said that, if one adjusted the first sale (downwards) by 10% to account for the premium for brand new properties and then applied pro rata market movements for North Bondi from the CoreLogic report, the difference was around $100,000.00 off the price for which the property actually sold (29/10/25; T 281). Ms Kerswell relied on this as demonstrating that the market movements were quite close to what the market had actually done (29/10/25; T 281). Ms Kerswell accepted that market movements were not “perfectly accurate” but emphasised that valuation “is a bit of an art as well as a science” (29/10/25; T 281).
Asked as to the statement made by her in the joint report that she had adjusted the Murriverie Road sale “upwards to 8.485 million”, Ms Kerswell said that that was how she had actually interpreted that sale in her first report but that there was a separate issue as to how the re‑sale (at $8.04 million) could be interpreted and that what she was saying was that the re‑sale could be used to validate those market movements (29/10/25; T 283-284). Ms Kerswell did not suggest that the re-sale indicated that the market had gone down between 2023 and 2025. Rather, she said (29/10/25; T 284):

Mr Field, who did not agree with the CoreLogic figures, said that the CoreLogic figures suggested a market change of median values until September 2021 of 53% (29/10/25; T 285). Mr Field was firmly of the view that those figures were incorrect (29/10/25; T 285). He said that the market in this locality certainly did not change by anything like that during that time period (29/10/25; T 285). Hence, he argued that these figures were not reliable. Second, Mr Field said that, in terms of the eastern suburbs, it was much better to look at specific examples and compare how one property compares with another than to look at averages and medians (29/10/25; T 285). Mr Field explained that North Bondi was a very specific market (with “far superior parts” and “far inferior parts”) and said that, to suggest that the area had all gone up at this percentage, one would need to assume that it was the “same basket of sales that also would have sold” (29/10/25; T 285). Mr Field said that hypothetically there could be a different selection of sales at one point in time and a different selection of sales at another point in time; and he said that this did not mean that they were all “homogeneous and similar” so as to be reliable (29/10/25; T 285).
Mr Field accepted that, based on the sale and re-sale of Murriverrie Street in isolation, this would suggest a nil or nominal market movement between December 2023 and July 2025 but pointed out that one does not know the background behind that sale (suggesting that hypothetically there might have been a situation where there was an anxious vendor) (29/10/25; T 286). Hence, as I understood it, Mr Field’s position was that one could not draw too much from that one re-sale and one would need to look at other sales to see whether there had actually been market movement. Mr Field accepted that CoreLogic was well respected in terms of its data but said that in his professional opinion to rely upon such data one could end up with “analysis paralysis” (29/10/25; T 285).
Mr Field considered that there were some particularly relevant points if comparing the Murriverie Road property with the subject property (which he considered to be more relevant than the market movements analysis). First, that the locations were not the same (29/10/25; T 285). Mr Field pointed out that the subject property is in walking distance of the local synagogue. He considered it particularly relevant in this “specific niche market” to buyer sentiment that the subject property was much closer to the local synagogue than the property at Murriverie Road (29/10/25; T 285). Second, that the Murriverie Road property was a new home when first sold (29/10/25; T 285). Mr Field agreed that new properties generally might or would attract a premium and was of the view that, from the photographs, it looked aesthetically extremely pleasing and attractive (29/10/25; T 285). Third, he pointed out that it was a significantly smaller dwelling than the subject property (approximately 180 (or 200) square metres as opposed to the subject property which was around 330 square metres) (29/10/25; T 285).
Ms Kerswell’s position (as indicated above) was that one could not use dated comparable sales evidence without considering market movements because to do so would be too unreliable. Ms Kerswell considered that the re-sale of the Murriverie Road property aligned with the suburb statistics (29/10/25; T 287). Ms Kerswell also said that care should be taken to pro rata the market movements from CoreLogic because they are rolling statistics (so the median house value is taken at a certain point in time each year and there is then a percentage increase or decrease which is derived from the difference in the median house price between those two points in time) (29/10/25; T 287). Ms Kerswell emphasised that, from her perspective, the re-sale of Murriverie Road property aligned “with what the market movements are saying”, which made her think that they were reliable (29/10/25; T 287).
Mr Field’s opinion was that, if one were going to adjust for market movements, then analysing not one but a number of sales which have sold and resold (if one could find such evidence) would provide a better, more reliable, safer benchmark than relying upon CoreLogic statistical data because if one is looking at a sale and re-sale then one is comparing the same property at different points in time (29/10/25; T 288).
Counsel for Scopeview took Mr Field to the CoreLogic data which identified a change in median house value of 9.7% at September 2025 (from which the 53% increase from September 2021 had been drawn) (29/10/25; T 288). Counsel suggested that the CoreLogic data could be used as a check against a predicted value of a property in the sense that, if one had arrived at an increase of, say, 44% in 2024 when the rest of the suburb had increased by only 5.8% that would tend to suggest that there was something wrong with the estimate (on the basis that the same property would not increase by 44% over that period) (29/10/25; T 288).
Mr Field accepted that in some instances very cautious reliance could be placed on the data but said that he would certainly not be basing any decisions (buying decisions in terms of what to pay for a property or to advise a client what to pay for a property) upon such adjustments (29/10/25; T 289). Mr Field considered the data relevant in terms of background research and understanding the local market in which one is operating and valuing (29/10/25; T 289). Mr Field said that if there was a lack of sales then adjusting for market movement would be relevant so long as one adjusted for all the qualitative and quantitative factors accordingly (referring to [20.5] of the international valuation standards as well) (29/10/25; T 289). Mr Field emphasised that in his opinion, in the present case, sales in 2024 were more relevant and did not require adjustment for time or adjustment by third party sources (29/10/25; T 289). Mr Field said that one could adjust for other merits (which he said was the expertise of a valuer) and considered that to be more reliable than adjusting in this case for passage of time over a two-year period, especially when the properties are not identical (29/10/25; T 289).
Mr Field’s attention was directed to his first report in which he had assessed the current market value of the subject property as at 6 February 2023 at $6 million and to his second report, in which (at [21.1]) he assessed the current market value as at 22 October 2024 at $8.6 million. (I note that in the second report at [16.3] Mr Field revised his current market value assessment as at 6 February 2023 to $6.6 million.)
Assuming the period of time between 6 February 2023 and 22 October 2024 was 624 days or approximately 1.7 years, it was put to Mr Field that this represented a 43% increase in 1.7 years (29/10/25; T 291). Counsel for Scopeview then compared this with the CoreLogic data figures in the period from 2023 to September 2024, which recorded a change in median value in the year to September 2023 of 8.8% and in the year after to September 2024 of 5.8% (29/10/25; T 291).
As to the revision from $6 million to $ 6.6 million, Mr Field said that, subsequent to the conclave, having reviewed Ms Kerswell’s report, he turned attention to what he thought was the most relevant sale in February 2023 (29/10/25; T 292). Mr Field said that, while one would not base it on one sale in particular, in his opinion the most relevant sale (with the benefit of hindsight) would be comparable sale 7 in Ms Kerswell’s report (that being a property in the same street, same size land, same side of the street and with a number of similar attributes) which sold in April 2022 for $7.25 million (29/10/25; T 292). Mr Field said that, in that pocket of North Bondi, this was probably one of the highest sales around that time up until the date of valuation (29/10/25; T 292). While Ms Kerswell’s report stated the area of that comparable sale at 350 square metres of house, Mr Field noted that the CoreLogic RP Data noted this as being 228 square metres and, on his own calculations based upon the floor plans, adding up the individual rooms, and allowing for thickness of walls and passageways, he believed the CoreLogic data to be approximately correct (29/10/25; T 292). Mr Field noted that this property has a double carport (not a double garage), a smaller internal area and said that it is inferior in that it is clad (29/10/25; T 292).
Mr Field said that the market may potentially have softened between then (April 2022) and early 2023 but, looking at that sale, the range of modern type homes in this pocket in North Bondi at that time was roughly $6.1 million to $7.25 million (29/10/25; T 292-293). Mr Field agreed with Ms Kerswell’s assessment that this comparable sale would be inferior to the subject property (29/10/25; T 293). So Mr Field said that, while he had (in his second report) amended his current market assessment as at February 2023 to $6.6 million, if he were doing that exercise again, in terms of what was the market value or the correct market value in early 2023, he would probably reassess the market value of the subject property as at 2023 (focussing on Ms Kerswell’s comparable “sale 7” as the most relevant) at a figure “north of $6.6 million” (29/10/25; T 293).
Counsel for Scopeview pointed out that, on the revised $6.6 million figure as at February 2023, there was an increase between the two figures ($6.6 million and $8.6 million) of $2 million, which over the period would equate to a 30.3% increase over 1.7 months, when the CoreLogic data suggested that the market movements in that period were approximately in the range of between 5% and 8% (29/10/25; T 293). It was put to Mr Field that this suggested that, whatever his reasoning, there was something that had gone wrong in his valuation process (either the starting figure of $6.6 million was incorrect or the end figure of 8.6 million was unreliable) (29/10/25; T 293). Asked whether he would accept that as a proposition, Mr Field said (29/10/25; T 293-294):

Ms Kerswell said that she had not really had the opportunity to review the initial report in detail and had not conducted her own valuation or her own review of the comparable sales evidence but that, on the face of it, based on the difference between Mr Field’s valuations at those two dates this would indicate that something was wrong (29/10/25; T 294). Ms Kerswell said that, in reviewing valuations at different points in time, her first starting point is to look at the market movements for the suburb; and Ms Kerswell said that, while it was not necessarily a perfect indicator that something has gone wrong, this “would sort of raise an alarm, alarm bells for me” (29/10/25; T 294).
Issue E was described in oral submissions as the “main event”, that being the analysis of the agreed comparable sale (the Owen Street property) (29/10/25; T 294). As indicated above, Mr Field assessed it as inferior to the subject property; Ms Kerswell assessed it as superior to the subject property. It was not in dispute that this comparable property sold for $8.126 million on 4 August 2024.
Ms Kerswell had relied for her assessment of the comparable property on photographs from the real estate listing of that property (29/10/25; T 295). Mr Field had driven past the property during the course of the conclave and had taken photographs of both it and the subject property for comparison (29/10/25; T 296).
As to the attributes of the two properties, the following were noted.
First, the comparable property has a single carport (albeit described by Ms Kerswell as being a triple carport) where two cars could not be parked side by side (29/10/25; T 297), whereas the subject property has a double garage with internal access. Mr Field clarified that the Owen Street property has a single undercover car space with an open car space immediately in front (so that one would need to get one car out to get another in or out) and that there was a potential third car space (in the yard where there was a trampoline immediately behind the hedge) (29/10/25; T 298). Ms Kerswell did not cavil with that. Mr Field said that there was potential for two to three car spaces, but it was not as practical as a double garage with internal access (29/10/25; T 298). Mr Field was of the opinion that a double garage with internal access was extremely appealing, especially in the prestige market, as opposed to a single undercover car space (29/10/25; T 303-304).
Second, that the subject property is in a cul‑de‑sac (which in Mr Field’s opinion was safer, quieter, and would be more appealing to families, especially with young children) and north facing to the rear (29/10/25; T 299). Mr Field noted that outside the front of the subject property there was a basketball hoop where children could safely play immediately outside that property; and that one could park in front of the garage (29/10/25; T 299).
Third, that the comparable property is on the corner of its street (29/10/25; T 298). The joint report noted that this property had a superior street frontage, being on a corner block. Mr Field described this position as being inferior for a couple of reasons: first that it was more exposed (and not in his opinion as safe if one has young children); and second, that the side street lacked the same appeal as Gilgandra Road (29/10/25; T 299). Also, Mr Field noted that there was a very small substation across the road of the comparable property, but he thought that was minor (29/10/25; T 299).
Ms Kerswell, asked as to whether the comparable property is more exposed than the subject property and whether that is a factor that she would take into account, said (29/10/25; T 305):

Rayman v Brown

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

headnote

INDEX

JUDGMENT

Introduction

Claims

Issues

Chronology of Events

Purchase and renovation of the Rayman Land

Purchase of the Brown Land and plans for renovation

Martens Report

Development Application

Development Consent

Modified Development Consent

Preparation of initial piling and shoring plans

Dilapidation Report

Engagement of Scopeview

Building Contract

Appointment of PCA

Issue of Staged Construction Certificate

Reference by Mr Brown to contribution levies

Meso

Engagement of IDC and preparation of the temporary shoring plan

Meso Works Summary Document

Confirmation from Scopeview as to Meso’s proposal

Building Certifier’s proposal

Design Certificate for temporary shoring

First Scopeview invoice

Requirement for notification of adjoining neighbours

Construction certificate for demolition

Enquiry from the other adjoining neighbour (Mr Stockley)

2 March 2020 notification to Mr Stockley

Disputed 2 March 2020 conversation

Demolition complete

Mr Zimmerman’s enquiry

Mr Weinberg’s enquiry of Council

Survey

Meso’s communication with Martens

9 April 2020 email from Mr Brown to Mr Quinton

Amendments by Mr Zimmerman

Engagement of EIA

14 April 2020 email from Mr Brown to Mr Quinton

Invoice for procurement of sheet piles

Revised certificate of structural compliance for works other than shoring

EIA investigation of site on 16 April 2020

Enquiry of Waverley Council

VMS

IDC Revision B construction drawings – 16 April 2020

IDC Revision C construction drawings – 20 April 2020

VMS

IDC Report

EIA geotechnical report

New PCA and application for a Construction Certificate

IDC – Revision C drawings

Notice of Commencement of Building Works

Issue of Construction Certificate

Response to Mr Weinberg from Waverley Council

VMS monitor settings

Provision of reports to Ms Rayman

Sheet piling works

Final vibration report

Excavation

Onsite meeting – 11 June 2020

Excavation Certificate

Installation of cross-bracing

June 2020 Dilapidation Report

Removal of bracing

Ashby Doble’s opinion

Riverwall Constructions quote

Rothshire Report and investigations

Sale of the Rayman Land

Lay evidence