Bodsworth v Schreuder

[2003] NSWSC 360

CITATION:	Bodsworth v Schreuder & Anor [2003] NSWSC 360
HEARING DATE(S):	15 April 2003
JUDGMENT DATE:	1 May 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.
CATCHWORDS:	Appeal - nuisance - harassment - title to sue - causation - quantum and costs.
LEGISLATION CITED:	N/A
CASES CITED:	N/A
PARTIES :	Marian Bodsworth (Plaintiff) v Deryck Schreuder (First Defendant) Paddy Schreuder (Second Defendant)
FILE NUMBER(S):	SC 12362 of 2002
COUNSEL:	Mr A Canceri (Plaintiff) Mr A Radojev (Defendants)
SOLICITORS:	N/A (Plaintiff) Humphreys & Feather (Defendants)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	61/2001 Hornsby Local Court
LOWER COURT JUDICIAL OFFICER :	J McIntosh LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Thursday 1 May 2003

12362 of 2002 Marian Bodsworth v Deryck Schreuder & Anor

JUDGMENT

1 Master Malpass: These proceedings were commenced by Summons filed on 26 August 2002. The plaintiff was the defendant in proceedings brought by the defendants in the Local Court. Those proceedings were commenced on 19 January 2001.

2 The defendants prosecuted an action founded on nuisance and a number of heads of damage were claimed (some of which were later abandoned).

3 The proceedings were bitterly fought over a number of days during 2001 and 2002.

4 The parties were neighbours. There was a common boundary. They lived in the area of Thornleigh. The material placed before the Local Court evinced a course of conduct by the plaintiff that had commenced at least in mid 2000 and continued thereafter at least during the conduct of the proceedings. It was motivated inter alia by her intense dislike of the defendants. This course of conduct may have had its origins in some earlier unresolved issues between the neighbours (involving inter alia driveway, carport and stormwater problems). These problems may have surfaced as early as February 1999. The conduct could be described as being truly appalling and indisputably constituted a continuing nuisance.

5 Two dwellings stood on the property owned by the defendants. One was occupied by the defendants themselves. The other (the cottage) was rented out to tenants (the Turners). The conduct of the plaintiff involved various actions being taken by her. I shall merely mention certain of them. The detail may be found in the transcript of the proceedings.

6 There were continuing incidents of abuse and threats involving actions, words and gestures. The words featured much foul language. There is an incident which extended over some four or five hours. There was the erection of a large sign on 30 June 2000 (a photograph of it is an exhibit). It was erected near the common boundary and visible to the defendants, visitors to their property and the tenants. The sign displayed the words “MALICIOUS COWARD” and was intended to have indefinite duration. It was in position for about 6 months. It may have been removed following action taken by the local council. Apart from these matters, there were also inter alia actions concerning the erection of a barrier, damage to a dividing fence and activities in relation to another fence erected by the defendants on their own property.

7 An apprehended violence order was made against the plaintiff. Incidents were reported to the police. Police records were in evidence. She was arrested on 4 February 2001 following an incident. A mental assessment was made and this led to what the learned Magistrate described as her being scheduled under the Mental Health Act.

8 There is evidence which supports the view that at least certain of her conduct took place when she may have been in an intoxicated state.

9 At least to some extent it appears that there may have been some agitation of an issue which attributed her conduct to mental disturbance.

10 Two judgments have been delivered by the Local Court. One dealt with the questions of liability and quantum. The other dealt with the question of costs.

11 The judgment dealing with the questions of liability and quantum was delivered on 29 July 2002. The learned Magistrate accepted the evidence adduced on behalf of the defendants. He determined the question of liability in their favour. He allowed damages in respect of one head of damage only. Damages were assessed in the sum of $2,603.77.

12 The judgment in respect of the question of costs was delivered on 26 August 2002. The defendants were also successful on this question.

13 An Amended Summons was filed in court on 15 April 2003 (the day fixed for the hearing of the appeal). The appeal is brought in respect of both judgments on the grounds set forth in the Amended Statement of Grounds. It is yet another instance where legal costs have become grossly disproportionate to what was in dispute.

14 The appeal is restricted to error of law. The plaintiff bears the onus of satisfying the court that there is error which justifies the disturbing of the decision of the Local Court.

15 I shall first deal with the submissions made in respect of challenge brought against the judgment delivered on 29 July 2002. The detail of the submissions may be found in the Plaintiff’s Outline of Submissions. For present purposes, it suffices to refer in general terms to those submissions. I need not refer to the many decided cases relied on by the parties.

16 It was said that the defendants were not entitled to sue in nuisance because the conduct of the plaintiff should be seen as incidents of harassment rather than acts of nuisance. It was also said that the defendants were not entitled to maintain an action in nuisance because they did not have the right to immediate occupation or possession and that the actions of the plaintiff had not caused permanent injury. Further, a challenge was made to the learned Magistrate’s findings on the question of causation. The assessment of damages was also challenged.

17 In my view, the actions of the plaintiff cannot be seen as mere harassment (such as inter alia abusive telephone calls or correspondence). This is a case where there were activities carried out on the plaintiff’s land which brought about a wrongful and substantial interference with the defendants use of their own land.

18 I do not accept the submission that the defendants lack title to sue in nuisance. In my view, it was misconceived. The defendants were owners and occupiers. At best, it could be said that they should not have been awarded damages for loss of rental.

19 The learned Magistrate allowed damages which were calculated in respect of a loss of rental monies caused by the plaintiff’s actions. The calculation was made in respect of part of the period during which the rental premises were unoccupied (10 weeks). The tenants were in occupation for a period between about July 1999 and 27 December 2000. Thereafter the premises were unoccupied for a period of about 20 weeks. The actions of the plaintiff were continuous by nature. They persisted both during the period of the occupation and thereafter. For present purposes, it is unnecessary to consider whether or not the rental loss can be regarded as permanent harm.

20 The learned Magistrate made a finding that the actions of the plaintiff were a major reason, not a sole reason, that the tenants vacated the property. In another passage of the judgment, he appears to make a much stronger finding (“I have no difficulty at all in finding that the Turners left the cottage as a result of Mrs Bodsworth’s actions”). There was in fact evidence from one of the tenants that her actions were the only cause. Be that as it may, it seems to me that the substance of his finding was that the plaintiff’s actions were the material cause for the tenants vacating the property. This was a finding open on the evidence. Not only was that a finding which was also open on the evidence, it seems to me that it was a finding that should have been made. In addition to this material there was also evidence that the plaintiff’s actions hampered attempts to let the premises and saw the defendants accepting a rental below market value to keep or attract tenants. Accordingly, I do not accept a submission that there was error in the finding made on causation which could justify a disturbing of the decision on liability.

21 The assessment of damages was calculated having regard to evidence that was before the learned Magistrate. It may be that there was an arbitrary element in the approach taken by him, however, I do not think that it was a matter of which the plaintiff can complain. The assessment fell within the allowable range. Indeed, it seems to me to be generous to the plaintiff.

22 The defendants have not filed a Notice of Contention. Whilst being unhappy with the assessment of damages, they are content to let the matter rest. For the consideration of the plaintiff, I did mention by way of warning that if the matter were to be referred back to the Local Court for reassessment, the result could be much less favourable to the plaintiff. Apart from what has been earlier said, I observe that nothing was allowed by way of general damages. It was not in dispute that such an award could have been made.

23 Finally, I return to the challenge made to the judgment delivered on 26 August 2002. Subject to the relevant statute and rules, the court has a judicial discretion to exercise in determining questions of costs. The starting point is that costs usually follow the event (save where the court is satisfied that some other order should be made). Each case is to be considered having regard to its own particular relevant circumstances. The objective is to do justice between the parties.

24 It is common ground that the bulk of the hearing time was taken up by evidence on the question of liability. On this question, the defendants were successful.

25 The plaintiff has relied again on the submissions that were made to the Local Court. A copy of the written submissions was handed up during the hearing of the appeal.

26 As he was entitled to do, the learned Magistrate took into account the conduct of the parties (including conduct preceding the commencement of litigation). He was asked to take into account the matter of the plaintiff’s actions being the product of mental illness. This matter is perhaps briefly alluded to in the judgment on the question of costs. In my view, assuming that the submission had a sound basis in fact, the matter was an irrelevant consideration.

27 In my view, the plaintiff has failed to demonstrate error in the exercise of the discretion concerning the question of costs. I am not satisfied that the decision should be disturbed.

28 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.

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Last Modified: 05/02/2003