BURTON -v- SPRAGG [2007] WASC 247

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 247
Published:	25/10/2007
Case No:	CIV:2041/2007	Heard:	12 OCTOBER 2007
Coram:	EM HEENAN J	Delivered:	12/10/07
No of pages:	11	Judgment Part:	1 of 1
Result:	Ex parte interlocutory injunction granted on undertaking Liberty to apply Relisted for hearing on notice within 7 days
Category:	B
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Parties:	PETER HORNER BURTON KRYSTYNA THERESA BURTON IAN SPRAGG VICKI SHIRLENE COWPER
Catchwords:	Ex parte interlocutory injunction Trespass to land Infringement of right of support Excavation by owner of adjoining land below natural levels of the surface Threatened collapse of dwelling Refusal to cease operations or to install supports Imminent danger
Legislation:	Nil
Case References:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Bulli Coal Mining Co v Osborne [1899] AC 351 Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471 Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 Temwood Holdings Pty Ltd v Asean Australian Assets Pty Ltd [2000] WASC 84 Tudorshine Pty Ltd v Seabrush Pty Ltd [1999] WASC 9

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BURTON -v- SPRAGG [2007] WASC 247 CORAM : EM HEENAN J HEARD : 12 OCTOBER 2007 DELIVERED : 12 OCTOBER 2007 PUBLISHED : 25 OCTOBER 2007 FILE NO/S : CIV 2041 of 2007 BETWEEN : PETER HORNER BURTON

KRYSTYNA THERESA BURTON

Plaintiffs

AND

IAN SPRAGG

VICKI SHIRLENE COWPER

Defendants

Catchwords:

Ex parte interlocutory injunction - Trespass to land - Infringement of right of support - Excavation by owner of adjoining land below natural levels of the surface - Threatened collapse of dwelling - Refusal to cease operations or to install supports - Imminent danger

Legislation:

Nil

(Page 2)

Result:

Ex parte interlocutory injunction granted on undertaking

Liberty to apply
Relisted for hearing on notice within 7 days

Category: B

Representation:

Counsel:

Plaintiffs : Mr I R Freeman

Defendants : No appearance

Solicitors:

Plaintiffs : Lavan Legal

Defendants : No appearance

Case(s) referred to in judgment(s):

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Bulli Coal Mining Co v Osborne [1899] AC 351
Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471
Castlemaine Tooheys Ltd v The State of South Australia (1986) 161 CLR 148
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
Temwood Holdings Pty Ltd v Asean Australian Assets Pty Ltd [2000] WASC 84
Tudorshine Pty Ltd v Seabrush Pty Ltd [1999] WASC 9

(Page 3)

1 EM HEENAN J: The plaintiffs are the registered proprietors…

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 Burton v Spragg

Details

AGLC: Burton v Spragg [2007] WASC 247
Case: [2007] WASC 247
Decision Date: 12 OCTOBER 2007

CaseChat Overview and Summary

Burton sought an ex parte interlocutory injunction against Spragg to prevent the latter from excavating below natural levels on his property, adjacent to Burton’s dwelling. Burton alleged that the excavation endangered the structural integrity of his home, claiming it threatened collapse. Spragg, the adjoining landowner, refused to halt the excavation or to install supports to prevent damage to Burton’s property, despite Burton's requests.

The court was required to determine whether Burton's application for an interlocutory injunction was warranted under the circumstances presented. The central legal issues revolved around the rights of adjoining landowners, the extent to which one landowner's activities could infringe upon another's rights, and the immediacy of the threat posed by the excavation. The court had to balance the principle of property rights with the need to protect against immediate and significant harm to another’s property.

The court found that Burton had demonstrated a prima facie case for an interlocutory injunction. The potential for imminent danger to Burton's dwelling was significant, and the harm was both serious and irreparable if not addressed immediately. The court was satisfied that the balance of convenience favoured Burton, considering the substantial risk to his property and the relative ease with which Spragg could have mitigated the risk by ceasing the excavation or installing supports. The court granted the injunction on the basis of the evidence presented, with the condition that Burton provide an undertaking as to damages. The matter was relisted for a hearing on notice within seven days, to allow both parties to present their full cases.

Orders

Orders of the court

1. Ex parte interlocutory injunction granted on undertaking.

2. Liberty to apply.

3. Relisted for hearing on notice within 7 days.

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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