DISTRICT COURT OF QUEENSLAND
CITATION:
Brodsky & Anor v Willi [2018] QDC 1
PARTIES:
DMITRY BRODSKY
(first plaintiff)AND
FIONA KATE HEALY
(second plaintiff)v
ALAN NEVILLE WILLI
(first defendant)AND
ROBYN ANNE WILLI
(second defendant)FILE NO/S:
165/16
DIVISION:
CIVIL
PROCEEDING:
Trial
ORIGINATING COURT:
District Court of Queensland, Maroochydore
DELIVERED ON:
29 January 2018
DELIVERED AT:
Maroochydore
HEARING DATE:
16 – 18 October 2017, final trial submission 17 December 2017, Costs submissions up to 7 February 2018.
JUDGE:
Robertson DCJ
ORDER:
(made 29 January 2018)
Order that the defendants pay to the plaintiffs:
(a) by way of restitutionary damages for trespass the sum of $2,450;
(b) aggravated damages for trespass in the sum of $20,000;
(c) exemplary damages $25,000.
I will allow interest in accordance with s 58 of the Civil Proceedings Act 2011. I dismiss the counterclaim.
ORDER:
(made 16 February 2018)
In addition to the orders made on the 29th of January 2018 I make the following additional orders:
1. I allow interest on the damages components of restitutionary and aggravated damages in the total sum of $6,206.88.
2. I order the defendants to pay the plaintiffs costs of and incidental to the proceedings including any reserved costs to be assessed on the indemnity basis.
3. By consent, I make the following order by way of declaration:
The defendants not carry out any works including the removal of works the plaintiffs may carry out upon Easement G unless and until:
1. full particulars of the intended works is supplied to the plaintiffs in writing; and
2. a period of thirty (30) days has elapsed from the supply of such particulars of works and the plaintiffs have consented to such works in writing. In the event that the plaintiffs fail to consent to such works the matter shall be referred to arbitration.
Should any dispute arise between the plaintiffs and the defendants in respect of any matter or thing arising pursuant to the easement or proposed works to it, such dispute shall be referred to arbitration pursuant to the Commercial Arbitration Act 2013 (as amended). The parties agree that the arbitrator shall be appointed by the President of the Queensland Law Society incorporated from time to time at the request of either party. Within fourteen (14) days of the above order the plaintiffs shall remove all signage referring to a dispute between the parties or their respective rights.
CATCHWORDS:
EASEMENTS, REAL PROPERTY: where defendants have right of way easement over plaintiffs land, where disputes arose between the parties over their respective rights under the Grant;
TRESPASS/NUISANCE: where plaintiffs constructed a cross-over on the easement area to enable them to more safely access the lower part of their property which is bisected by the easement; where defendants caused contractors to remove the cross-over without the consent of the plaintiffs, whether in so doing the defendants committed the tort of trespass; whether the cross-over substantially interfered with the rights of the defendants pursuant to the grant;
DAMAGES, EXEMPLARY &…
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- AGLC
- Brodsky v Willi [2018] QDC 1
- Case
- [2018] QDC 1
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the defendants' removal of the cross-over constituted trespass and whether their actions substantially interfered with the plaintiffs' rights under the grant. Additionally, the court needed to decide whether the defendants' conduct involved contumelious disregard for the plaintiffs' legal rights, warranting exemplary damages. The court examined the terms of the easement and the conduct of the defendants, finding that the removal of the cross-over constituted trespass. The court held that the defendants' actions did not substantially interfere with the plaintiffs' rights under the grant. However, the court found that the defendants' aggressive and intimidating attitude involved contumelious disregard for the plaintiffs' legal rights, justifying the award of exemplary damages.
The court awarded the plaintiffs $2,450 for restitutionary damages for trespass, $20,000 for aggravated damages for trespass, and $25,000 for exemplary damages. The court dismissed the defendants' counterclaim. The court also allowed interest on the damages awarded in accordance with section 58 of the Civil Proceedings Act 2011. The court concluded that the defendants' conduct warranted the award of exemplary damages but did not find any special or unusual feature of the case that required the court to depart from the ordinary course of standard costs to follow the event.
Orders
Orders of the court
Order that the defendants pay to the plaintiffs:
(a) by way of restitutionary damages for trespass the sum of $2,450;
(b) aggravated damages for trespass in the sum of $20,000;
(c) exemplary damages $25,000.
I will allow interest in accordance with s 58 of the Civil Proceedings Act 2011. I dismiss the counterclaim.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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