Body Corporate 8067 v HANKS
[2003] WASCA 90
•1 MAY 2003
BODY CORPORATE 8067 -v- HANKS [2003] WASCA 90
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 90 | |
| THE FULL COURT (WA) | 01/05/2003 | ||
| Case No: | CIV:1370/2003 | 23 APRIL 2003 | |
| Coram: | SCOTT J HASLUCK J | 23/04/03 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BODY CORPORATE 8067 MILTON EDGAR HANKS |
Catchwords: | Practice and procedure Appeal from Local Court to District Court Application for leave to appeal to Full Court Principles governing leave to appeal Acts of trespass affecting adjoining land Sufficiency of evidence concerning loss Leave to appeal refused Turns on own facts |
Legislation: | Local Courts Act 1904 (WA), s 107(3) Rules of the Supreme Court, O 64 rule 4(1)(a) |
Case References: | Jones v Shire of Perth (1971) WAR 56 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Bevillesta Pty Ltd v Sovereign Motor Inns Pty Ltd [2003] ANZ Conv R 34 Dodd Properties v Canterbury City Council [1979] 2 All ER 118 Dominion Mosaics and Tile Co Ltd v Trafalgar Trucking Co Ltd [1990] 2 All ER 246 Silver v Ocean Steamship Co (1930) 1 KB 416 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BODY CORPORATE 8067 -v- HANKS [2003] WASCA 90 CORAM : SCOTT J
- HASLUCK J
- Applicant (Plaintiff)
AND
MILTON EDGAR HANKS
Respondent (Defendant)
Catchwords:
Practice and procedure - Appeal from Local Court to District Court - Application for leave to appeal to Full Court - Principles governing leave to appeal - Acts of trespass affecting adjoining land - Sufficiency of evidence concerning loss - Leave to appeal refused - Turns on own facts
Legislation:
Local Courts Act 1904 (WA), s 107(3)
Rules of the Supreme Court, O 64 rule 4(1)(a)
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant (Plaintiff) : Mr S M Stocks
Respondent (Defendant) : No appearance
Solicitors:
Applicant (Plaintiff) : Nicholson Clement
Respondent (Defendant) : No appearance
Case(s) referred to in judgment(s):
Jones v Shire of Perth (1971) WAR 56
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Case(s) also cited:
Bevillesta Pty Ltd v Sovereign Motor Inns Pty Ltd [2003] ANZ Conv R 34
Dodd Properties v Canterbury City Council [1979] 2 All ER 118
Dominion Mosaics and Tile Co Ltd v Trafalgar Trucking Co Ltd [1990] 2 All ER 246
Silver v Ocean Steamship Co (1930) 1 KB 416
(Page 3)
1 JUDGMENT OF THE COURT: The applicant, Body Corporate 8067, seeks leave to appeal against the judgment of His Honour Judge Fenbury of the District Court delivered on 18 March 2003.
Nature of appeal
2 The relevant proceedings originated in the Local Court. It is therefore necessary to turn to the provisions of the Local Courts Act 1904 concerning appeals and judicial review. Section 107(3) provides that a party who is dissatisfied with the judgment of the District Court on the appeal may by leave of the Supreme Court appeal from that judgment to the Full Court.
3 Order 64 rule 4(1)(a) of the Rules of the Supreme Court 1971 applies to an application under s 107(3) of the Local Courts Act for leave to appeal to the Full Court. An application for leave to appeal may be made ex parte and shall be supported by an affidavit of the facts relied on.
4 In Wing Luck Foods v Lay Choo Lim [1989] WAR 358 the Full Court was concerned with a case in which the District Court allowed an appeal against the decision of a Magistrate in the Local Court. The applicant sought leave to appeal. The Full Court held that the provisions requiring leave to appeal were similar to those concerning appeals against interlocutory or consent orders. This meant that leave to appeal should be granted where the decision is wrong or at least attended with sufficient doubt to justify granting leave and in addition substantial injustice would be done in leaving the decision unreversed. What constitutes substantial injustice must depend on the circumstances of the case.
5 The application for leave in the present case was supported by the affidavit of Gary Kalbus sworn 1 April 2003 who is the secretary of the Strata Council of the applicant.
6 In addition, the applicant sought leave to rely upon the affidavit of Mr Kalbus, sworn 15 April 2003 concerning a demand for payment and related events that occurred after the judgment of the District Court was handed down. We consider that the Full Court is entitled to take account of this affidavit as a further affidavit supporting the application for leave and there is therefore no need for the same to be admitted as further evidence pursuant to O 63 r 10 of the Supreme Court Rules in the manner contended for by counsel for the applicant.
(Page 4)
The Local Court proceedings
7 The affidavits of Mr Kalbus reveal that on 10 April 2001 the applicant, as plaintiff, advanced a claim against the respondent pursuant to Mandurah Local Court Plaint No 277 of 2001. The applicant claimed damages of $6,021 referable to the cost of the removal and rebuilding of a retaining wall and the cost of a surveyor's report for repegging common boundary of $440.
8 The claim arose out of disputation between neighbours in Reserve Drive, Mandurah. It seems that the original owner of Lot 10, a Mr Adie, had a double brick wall built on Lot 10, very close to the boundary, at his own expense. In due course, the applicant became the proprietor of Lot 10. The respondent, as the owner of business premises on the adjacent property known as Lot 86, bituminised the surface of his land up to the face of the wall. This inevitably effected a slight encroachment upon Lot 10 because, as a later survey revealed, the wall was close to but not upon the boundary.
9 Complaints by the local shire as to the adequacy of the wall led to the wall being replaced in 2001 by the applicant at a cost of $6,021. The new wall was built on the same line as the original wall.
10 The applicant was of the view that vehicles on Lot 86 parking in close proximity to the wall (and thus arguably trespassing upon Lot 10 to some degree) had caused or contributed to damage to the wall to such an extent that the wall had to be replaced. It was against this background that the applicant sought to recover the sum of $6,021 associated with the cost of rebuilding the wall plus the surveyor's fee.
11 On 18 and 19 June 2002 the Local Court action was tried before His Worship Mr Bromfield SM.
12 The learned Magistrate described the background to the dispute and said that he found the respondent to be a credible witness as to the sequence of events and the installation of the bitumen paving. He accepted that the respondent had trespassed fractionally upon the applicant's land and that vehicles located on the respondent's land had struck the wall in question. However, he gave weight to the evidence of a structural engineer, Mr Pintaudi, which suggested that the wall was inherently incapable of performing the retaining function for which it was constructed. The wall was not suited for such a purpose.
(Page 5)
13 The learned Magistrate then held that the applicant had failed to discharge the burden of proof that fell upon it to establish that any damages had been caused as the result of the trespass by the respondent or its agents upon the applicant's property, and dismissed the applicant's claim. The applicant was required to pay the respondent's costs to be taxed on the non-routine scale.
Appeal to the District Court
14 The appellant appealed to the District Court at Perth. This appeal was heard before his Honour Judge Fenbury of the District Court on 22 January 2003.
15 On 18 March 2003 his Honour allowed the appeal and handed down his reasons for judgment. The orders made by his Honour were in these terms:
"1. The appeal be allowed with costs to be taxed if not agreed.
2. The orders of Mr Bromfield SM made on 18 June 2002 be set aside.
3. The appellant (plaintiff) have judgment against the respondent (defendant) for $500 together with interest thereon at the rate of 6 per cent per annum from 1 September 2002.
4. The respondent (defendant) pay the appellant's (plaintiff's) costs of the action to be taxed on the non-routine scale with a certificate for one expert witness (Mr Pintaudi) and two witnesses carrying on business as principals (Messrs Kalbus and Heales)."
16 His Honour noted at par 14 of his reasons for judgment that at all material times the wall was fulfilling the function of a retaining wall. After the wall was removed, following the Shire's complaints, it was replaced with a retaining wall in 2001. The new wall was built on the same line but on this occasion it was reinforced with steel and the cavity between the two rows of bricks was filled with concrete.
17 His Honour observed that the grounds of appeal could be broken down into two basic propositions. First, the learned Magistrate's finding that there had been a trespass should have led to at least some award of
(Page 6)
- damages, however minor. Second, the learned Magistrate erred in finding that the cause of damage to the wall was due to its unsuitability as a retaining wall, having regard to evidence of damage caused by motor vehicles trespassing on Lot 10.
18 His Honour referred to the learned Magistrate's conclusion that the wall was not designed as a retaining wall and its failure was caused by its own inadequacy; hence the fact that it had to be pulled down and replaced was a matter in respect of which the respondent had no liability.
19 The learned District Court Judge went on to say that, in his view, the trespassing vehicles on and from Lot 86 were a contributory factor to damage to the wall and should have been factored into any view about quantum and causation. His Honour said this at par 37 and par 38 of the judgment:
"37. It seems to me to be obvious that the respondent's trespass to some degree caused or contributed to the damage to the wall. However, there is no evidence to assist the Court in making any assessment of this. The original wall was obviously not nearly as strong as the new wall.
38. I am also concerned about the fact that the appellant seeks that the respondent pay for the cost of a much better quality wall than that which was damaged… Considerations of unjust enrichment or betterment seem to me to arise."
20 His Honour then expressed concerns about the increasing legal costs. In that context, and apparently with a view to drawing the parties attention to the possibility of effecting an amicable settlement of the dispute, he observed that as an instinctive reaction to the matter, he thought that an equal contribution to the costs of the new wall would be fair. Nonetheless, he went on to say this at par 43 of the judgment:
"In my view however, again doing the best that I can, I think that a fair amount of compensation for the undisputed trespass that was found to have occurred by the Magistrate would be payment of the sum $500. To that extent therefore the appeal should be allowed and the respondent should be ordered to pay the appellant $500 by way of nominal damages for the trespass."
(Page 7)
21 Finally, his Honour held that the learned Magistrate was correct in dismissing the claim for surveyor's fees because of the lack of any agreement between the parties to share the cost and the lack of evidence concerning that issue.
Application for leave to appeal
22 In support of the application for leave to appeal, a draft notice of appeal is exhibited to the first Kalbus affidavit. The first three grounds of appeal are directed to an alleged error on the part of the learned Judge in dismissing the claim for damages for the cost of repairing the wall, on the ground that there was no or no sufficient evidence to assess such damages. It is said that the applicant was entitled to be restored to the same position as before the trespass was committed, by repairing the wall at a reasonable cost and when any reinforcement to the wall was only required as a result of the respondent's trespass. The fourth and fifth grounds of appeal are directed to the survey costs.
23 In effect, the applicant contends that once findings of trespass and some damage to the wall were made, the applicant was entitled to damages for the removal and rebuilding of the wall. If an apportionment had to be made then an apportionment could be done by an estimate. This was what the learned Judge had arguably done in canvassing the possibility that there be an equal contribution by the parties.
24 Counsel for the applicant referred to restitutio in integrum as being the basic principle governing the measure of damages where the respondent's tort has caused damage to the applicant's land or building. We note in passing that in Jones v Shire of Perth (1971) WAR 56 it was held that the plaintiffs were not entitled to recover as damages the cost of restoring the land to its former condition where, as in that case, such cost is entirely disproportionate to the injury done to the land. The amount should be based upon the diminished value of the land.
25 Counsel for the applicant contended that the learned Judge had made an award of $500 by way of nominal damages for the trespass. However, in circumstances in which he was satisfied that the trespass had caused damage to some extent to the wall, he was obliged to go further and make an assessment of damages referable to the respondent's tortious misconduct.
26 This misconstrues the reasoning of the learned Judge. Both he and the learned Magistrate proceeded from the premise that the wall had to be
(Page 8)
- replaced because it was inadequate as originally constructed, not because of acts associated with the respondent's trespass. Unlike the Magistrate, the learned Judge was prepared to hold on the evidence that a causal link had been made out between the various acts of trespass and a degree of damage to the wall. However, in the absence of sufficient evidence as to the nature and extent of the loss referable to the tortious act, he was obliged to make an estimate of the damages. It was in this context that damages, described as nominal damages, were assessed in the sum of $500.
27 In other words, both the learned Magistrate and the learned District Court Judge, held that the applicant had failed to establish on the balance of probabilities that the wall had to be replaced as a consequence of the respondent's tortious conduct. This conclusion was open on the evidence. However, the learned trial Judge was prepared to allow a small or nominal award of damages in respect of a different and lesser degree of loss for which the respondent could be held responsible.
28 It is true that trespass is actionable per se and damage is not necessarily the gist of the action. However, for actual damage to adjoining land or its structures by acts of trespass, a claimant is entitled to compensation on the same principles as for negligence. Fleming: "The Law of Torts" (9th ed) page 53. Thus, in a case of actual damage, as in the present case, a court would normally be inclined to award compensation on the same principles as for negligence and require that a causal link be demonstrated between the tortious misconduct complained of and the loss allegedly suffered. This appears to have been the approach adopted by the learned Judge in the present case.
29 His Honour sought to arrive at a figure which represented a fair amount of compensation for the acts of trespass and the consequential loss that was found to have actually occurred. In circumstances in which the applicant had failed to make out its principal contention, namely, that there was a causative link between the trespassing and the need to replace the wall, the applicant was confined to a lesser form of relief, namely, damages in the sum of $500 being compensation for some comparatively minor damage to the wall caused by vehicles on the respondent's land.
30 At the hearing of the application for leave to appeal, counsel for the applicant sought to place a considerable emphasis upon the learned Judge's use of the term "nominal damages" in the crucial passage (quoted above) at par 43 of the judgment. This set the scene for a submission that the learned Judge awarded nominal damages for the act of trespass but
(Page 9)
- erred in failing to go further and award damages for the actual damage to the wall.
31 In our view, this reading of the judgment is refuted by the Judge's preceding reference to a "fair amount of compensation". In the absence of sufficient evidence concerning the extent of the damage done by vehicles, he was compelled to make an estimate of the loss referable to the tortious act. The phrase a "fair amount of compensation" implies that the amount will be determined by reference to the loss actually caused by the tortfeasor and will therefore be commensurate to the circumstances of the case.
32 Even if we be wrong in this reading of the judgment, we are of the view that on the available evidence, the learned Judge was obliged to proceed in that manner in circumstances in which the applicant complained of actual loss arising from the trespass underlying the dispute.
33 It is against this background that the application for leave to appeal falls to be considered. It does not emerge from a review of the reasoning in the Courts below that the learned Judge was wrong in his principal conclusion. Further, we are not persuaded, having regard to the principles reflected in Wing Luck Foods v Lay Choo Lim (supra), that the decision of the learned Judge is attended with sufficient doubt to justify granting leave and, in addition, substantial injustice would not be done in leaving the decision unreversed.
34 In the final analysis, this was a case in which the applicant failed to discharge the burden of proof in regard to its principal contention that the need to construct a new and more expensive wall was caused by the tortious conduct of the respondent. Nonetheless, the applicant eventually recovered damages pursuant to an apportionment that was consistent with the findings made by the learned Magistrate. In these circumstances, having regard to the further legal costs that will be incurred if the matter goes on appeal, it cannot be said that a substantial injustice will be done in leaving the decision unreversed, for the findings of fact made at first instance do not support the applicant.
35 Leave to appeal was refused at the hearing on 23 April 2003 upon the basis that the Court would provide reasons in due course. These are the reasons of the Court.
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