Bilic and Bilic v Nicholls - [2013] QDC 110

DISTRICT COURT OF QUEENSLAND

CITATION:

Bilic & Bilic v Nicholls & Ors [2013] QDC 110

PARTIES:

DRAGAN BILIC

And

VESNA BILIC

(plaintiffs)

V

ANDREW NICHOLLS

(first defendant)

And

SHARYN LEE NICHOLLS

(second defendant)

And

JIMI LEE

(third defendant)

FILE NO/S:

22/2011

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

17 May 2013

DELIVERED AT:

Beenleigh

HEARING DATE:

25 February 2013

JUDGE:

Dearden DJC

ORDER:

1.       I give judgment for the plaintiffs Dragan and Vesna Bilic against the first defendant, Andrew Nicholls, the second defendant, Sharyn Nicholls, and the third defendant Jimi Lee, as follows:

(a)        Restitutionary compensatory damages $73,000

(b)        Aggravated compensatory damages $30,000

(c)        Interest at 10% per annum from 16 March, 2011 to 17 May, 2013 -$103,000 x 10% x 2.17 years = $22,351

(d)       Exemplary damages - $30,000

(e)        Total - $155,573

2.       I order that the first, second and third defendants pay the plaintiffs’ costs on a standard basis.

CATCHWORDS:

CIVIL TRIAL – DAMAGES – ex parte – dispute with neighbours - trespass – damage to property – nuisance – damages – exemplary damages

LEGISLATION:

Uniform Civil Procedure Rules (UCPR) rr.166(4),(5)

CASES:
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No.2) [1991] 2 VR 636

British Motor Trade Assoc’n v Salvadori[1949] Ch 556

City Bank of Sydney v McLaughlin (1909) 9 CLR 615

Klement v Pencoal Ltd [1999] QSC 90

Halliday v Nevill (1984) 155 CLR 1

McCarty v North Sydney Municipal Council (1918) 18 SR NSW 210

Woolley v Dunford (1972) 3 SASR 243

Plenty v Dillon (1991) 171 CLR 635

Pollack v Volpato [1973] 1 NSWLR 653

Quinn v Anthem [1901] AC 495

Stereff v Rycen & Anor [2010] QDC 117

TCN Channel 9 Pty Ltd v Anning [2002] 54 NSWLR 333

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985)155 CLR 448

COUNSEL:

MJ Byrne for the plaintiffs.

No appearance for the first, second or third defendants.

SOLICITORS:

Pearson and Associates for the plaintiffs.

No appearance for the first, second or third defendants.

Introduction

The plaintiffs seek damages for trespass, nuisance and interference with contractual relations or business, as well as exemplary and aggravated damages against the first defendant, Andrew Nicholls, the second defendant Sharyn Lee Nicholls (wife of the first defendant), and the third defendant Jimi Lee.

Hearing

Although the first, second and third defendants filed pleadings in these proceedings, none of the defendants appeared at the trial on 25 February 2013. The matter proceeded in the absence of the first, second and third defendants, with oral evidence called by and exhibits tendered on behalf of the plaintiffs.

Background

The plaintiffs were (at the relevant time) the owners of a property at 16 Charlane Street, Underwood, which was then an investment property, and was rented by them until the tenant vacated the premises on 4 February 2010.

The plaintiffs came into dispute with their neighbours, the first and second defendants, in respect of the demolition of a small…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bilic and Bilic v Nicholls

Details

AGLC: Bilic & Bilic v Nicholls & Ors [2013] QDC 110
Case: [2013] QDC 110
Decision Date: 17 May 2013

CaseChat Overview and Summary

The plaintiffs, Dragan and Vesna Bilic, sought damages from the defendants, Andrew Nicholls, Sharyn Nicholls, and Jimi Lee, due to disputes with their neighbours. The plaintiffs claimed trespass, damage to property, and nuisance resulting from the defendants' actions. The case was heard in the court. The primary legal issues revolved around whether the defendants' actions constituted trespass, damage to property, and nuisance, and if so, whether the plaintiffs were entitled to compensatory and exemplary damages.

The court examined the evidence and found that the defendants had indeed engaged in trespass, caused damage to the plaintiffs' property, and created a nuisance. The court detailed the specific instances of trespass, including the unauthorized entry onto the plaintiffs' property and the damage caused, such as the destruction of a garden shed and other property. The nuisance was established through the defendants' persistent and unreasonable behaviour, including loud music, verbal abuse, and other disruptive activities. The court concluded that the plaintiffs were entitled to both compensatory and exemplary damages.

In determining the amount of damages, the court awarded $73,000 in restitutionary compensatory damages, reflecting the direct financial loss suffered by the plaintiffs. Additionally, $30,000 was awarded in aggravated compensatory damages to account for the distress and inconvenience caused. Interest on the damages was also awarded, amounting to $22,351. The court further granted $30,000 in exemplary damages to deter similar conduct in the future. The total judgment sum was $155,573. The court also ordered the defendants to pay the plaintiffs' costs on a standard basis.

Orders

Orders of the court

1. I give judgment for the plaintiffs Dragan and Vesna Bilic against the first defendant, Andrew Nicholls, the second defendant, Sharyn Nicholls, and the third defendant Jimi Lee, as follows:

(a) Restitutionary compensatory damages $73,000

(b) Aggravated compensatory damages $30,000

(d) Exemplary damages - $30,000

(e) Total - $155,573

2. I order that the first, second and third defendants pay the plaintiffs’ costs on a standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bilic & Bilic v Nicholls & Ors [2013] QDC 110
PARTIES:	DRAGAN BILIC And VESNA BILIC (plaintiffs) V ANDREW NICHOLLS (first defendant) And SHARYN LEE NICHOLLS (second defendant) And JIMI LEE (third defendant)
FILE NO/S:	22/2011
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Beenleigh
DELIVERED ON:	17 May 2013
DELIVERED AT:	Beenleigh
HEARING DATE:	25 February 2013
JUDGE:	Dearden DJC
ORDER:	1. I give judgment for the plaintiffs Dragan and Vesna Bilic against the first defendant, Andrew Nicholls, the second defendant, Sharyn Nicholls, and the third defendant Jimi Lee, as follows: (a) Restitutionary compensatory damages $73,000 (b) Aggravated compensatory damages $30,000 (c) Interest at 10% per annum from 16 March, 2011 to 17 May, 2013 -$103,000 x 10% x 2.17 years = $22,351 (d) Exemplary damages - $30,000 (e) Total - $155,573 2. I order that the first, second and third defendants pay the plaintiffs’ costs on a standard basis.
CATCHWORDS:	CIVIL TRIAL – DAMAGES – ex parte – dispute with neighbours - trespass – damage to property – nuisance – damages – exemplary damages
LEGISLATION:	Uniform Civil Procedure Rules (UCPR) rr.166(4),(5)
CASES:	Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (No.2) [1991] 2 VR 636 British Motor Trade Assoc’n v Salvadori[1949] Ch 556 City Bank of Sydney v McLaughlin (1909) 9 CLR 615 Klement v Pencoal Ltd [1999] QSC 90 Halliday v Nevill (1984) 155 CLR 1 McCarty v North Sydney Municipal Council (1918) 18 SR NSW 210 Woolley v Dunford (1972) 3 SASR 243 Plenty v Dillon (1991) 171 CLR 635 Pollack v Volpato [1973] 1 NSWLR 653 Quinn v Anthem [1901] AC 495 Stereff v Rycen & Anor [2010] QDC 117 TCN Channel 9 Pty Ltd v Anning [2002] 54 NSWLR 333 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985)155 CLR 448
COUNSEL:	MJ Byrne for the plaintiffs. No appearance for the first, second or third defendants.
SOLICITORS:	Pearson and Associates for the plaintiffs. No appearance for the first, second or third defendants.