Campbell v Crane

[2009] NSWSC 363

CITATION:	Campbell v Crane [2009] NSWSC 363
HEARING DATE(S):	16 and 17 December 2008
JUDGMENT DATE :	8 May 2009
JUDGMENT OF:	Smart AJ
DECISION:	See paragraph 56
CATCHWORDS:	Encroachment on neighbouring property - claims for trespass - order for conveyance of narrow strip of land along boundary - damages and compensation
LEGISLATION CITED:	Encroachment of Buildings Act 1922
CATEGORY:	Principal judgment
PARTIES:	David Campbell (1st Plaintiff) Margaret Campbell (2nd Plaintiff) Steven Crane (Defendant)
FILE NUMBER(S):	SC 12997/07
COUNSEL:	M Lawson (Plaintiffs) M Holmes (Defendant)
SOLICITORS:	Thomas Mitchell (Plaintiffs) Duncan Cotterill (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Smart AJ

Friday 8 May 2009

12997/07 David and Margaret Campbell v Steven Crane

JUDGMENT

1 The dispute between Mr and Mrs Campbell and Mr Crane, who respectively own 15 and 17 The Parade Belmont, concerns encroachments upon 15 The Parade. Both properties are in an older part of Belmont and have attractive views to the rear. Unfortunately, 15 The Parade is a narrow block with a street frontage of about 10.58 metres. By their Statement of Claim the plaintiffs sought damages including the costs to the plaintiff of removing some ten specified encroachments and restoring the plaintiffs’ property to the condition it was allegedly in prior to the defendants completing the work resulting in encroachments, damages for trespass, aggravated and / or exemplary damages. By their Amended Statement of Claim the plaintiffs additionally sought an order under s 3(2)(c) of the Encroachment of Buildings Act 1922 (NSW) that the encroachments be removed, an order under s 3(2)(a) of that Act that the defendant pay the plaintiffs compensation and an injunction requiring the defendant to remove the encroachments and to make good the plaintiffs’ property within a reasonable period, as determined by the Court. Additionally, and in the alternative, damages for trespass were claimed.

2 In his defence, the defendant says that he purchased 17 The Parade about 28 July 1989 and has remained the owner ever since. The Defence deals individually with each of the ten alleged encroachments. In broad terms, some of the encroachments are admitted but it is contended that they are of long standing, pre-date 1989 and are minor. The defendant admits that he caused certain work to be carried out along or close to the common boundary over the years. It is a theme of the defence that all encroachments are minor and do not interfere with or affect the use and enjoyment of the plaintiffs’ land and for which the plaintiffs are not entitled to compensation or damages. The defendant contends that he did not intend to enter the plaintiff’s property and did not do so negligently.

3 By his Cross-Claim, Mr Crane sought a declaration, pursuant to s 9 of the Encroachment of Buildings Act 1922, that the true boundary between the land owned by Mr and Mrs Campbell and that owned by Mr Crane was represented by the fence line between the two properties such that any encroachments which appear in the survey of David R Walpole of 13 May 2008 are wholly within the land owned by Mr Crane. Such a declaration should be refused.

4 Alternatively, Mr Crane sought an order pursuant to s 3(2)(b) of the Encroachment of Buildings Act 1922 for:

(a) The conveyance, transfer or lease to Steven Crane of any part of the land owned by David and Margaret Campbell which is encroached;

(b) the grant of any estate or interest or easement in favour of the cross-claimant in respect of the maintenance of the encroachments which appear in the survey of David R Walpole of 13 May 2008.

Mr Crane also sought an order that there be no compensation payable to Mr and Mrs Campbell consequent upon any orders he sought.

5 At the time Mr Crane purchased 17 The Parade in July 1989, there was erected on it a two-storey brick and hardiplank dwelling with a metal deck and tiled roof. There was also a single-storey adjoining flat. Further:

(a) there was an in-ground swimming pool and a retaining wall on the side of the swimming pool near the boundary with No 15;

(b) there was a wooden fence situated on the rear boundary of No 17 and along portion of the boundaries with the neighbouring properties. This wooden fence was in a bad state of repair;

(c) there was no fence between No 17 and No 15 from the flat on No 17 to the front of the property except for a short low brick fence stretching a few metres from the front boundary.

6 According to the survey of 26 June 1989 of Mr BW Tattersal obtained by Mr Crane, the provisions of the Local Government Act and Ordinances with reference to the distance of the walls, eaves and guttering of the dwelling (which included the flat) from the boundary line had not been observed. Mr Tattersall wrote that the improvements comprising the dwelling (including the flat) and an in-ground swimming pool stood wholly within the boundaries of the said property. Mr Crane said that about the time he purchased No 17 his solicitor explained to him that the flat was built on the edge of the boundary and that it seemed to have been built before the requirement existed to have structures located off the boundary line. From 1989 to about early 1999 an elderly lady lived in No 15 and there were no boundary disputes.

7 About early 1999 or late 1998 Mr Crane accepted his wife’s recommendation that the paling fence was unsafe in that it did not stop children playing near the swimming pool and that a new fence should be built. Mr Crane left it to his wife to arrange this and she had her brother-in-law attend to this.

8 The old paling fence was removed and replaced with new colorbond fencing along the boundary with No 19 The Parade, the rear boundary of No 17 and portion of the boundary with No 15. Mr Crane said that along the boundary with No 15 about three metres of paling fence was not replaced. Mr Crane stated that that three metres was adjacent to the flat. (That was already on the boundary line and formed a natural barrier.) Mr Crane paid for all of the cost of this new colorbond fencing. It is not completely clear when this fencing was carried out. The quote from Complete Fencing Services is dated 10 February 1999, Mr and Mrs Crane were overseas in April 1999 and he mentions an incident in November 1999 which suggests that the new fence might have been erected at about that time. Mrs Crane said that in about December 1999 she received a call from her brother-in-law that the fence was finished. She sent him a cheque for the final payment about 30 December 1999.

9 The Campbells purchased 15 The Parade in April 1999. Mrs Crane said that she did not speak with the Campbells prior to arranging for the new colorbond fence to be constructed. Nor did Mr Crane. Neither Mr nor Mrs Crane was present when the new colorbond fence was erected. Neither was aware of any complaints from Mr and Mrs Campbell when the new fence was erected or shortly thereafter. After purchase of No 15, Mr and Mrs Campbell rented that property. Mrs Campbell said that when she attended the property in early 2000 following vacation of the tenant she noticed that the paling fence had been replaced by a colorbond fence which was placed alongside a concrete retaining wall. Mrs Campbell said she did not receive any notice that Mr Crane was going to erect a colorbond fence and that it was going to be placed alongside a concrete retaining wall. At T 44, line 45, Mrs Campbell gave evidence that for the first 18 months of owning No 15 they used it as a rental house. Then they had renovations done. She thought that they probably moved into the house in 2002.

10 In the meantime, about July 2001, the Cranes had the area around the swimming pool on No 17 landscaped. There were new gardens and replacement paving around the pool. The total area of encroachment by the brick swimming pool pavers is 1.02 metres square. Mr Walpole’s diagram attached to his survey report of 13 May 2008 shows encroachments varying from 0.03 m, 0.08 m, 0.19 m and 0.16 m. This is minor. The builder’s quote refers to work to retaining walls and drainage. Mrs Crane says that there was maintenance to the garden retaining walls. The drainage apparently related to the paving area.

11 Mrs Campbell stated that, as there was no fence from the front of her property to the rear of the flat on No 17, she became concerned that tenants from the flat would access the Campbell’s property. Mrs Campbell said that in about April 2002 she spoke to Mrs Crane and explained that the Campbells would like to put a fence on the front part of the property for security and privacy as the Crane’s tenants could access the Campbell’s property. In her oral evidence she gave a further reason. There was a club just up the road and there were a lot of strange people parking in the streets. Mrs Campbell said she asked Mrs Crane to contribute half the cost. Mrs Campbell obtained two quotes. She said that she and Mrs Crane agreed that Mr Steven Pike would perform the works in accordance with his quotation. Mrs Crane gave a somewhat different version. She said that she was contacted about early May 2002 by Margaret Wilkins of Raine and Horne, estate agents, who advised that the Campbells wanted to erect a fence from the flat to the front of the property. The Campbells would arrange for the fence to be built but wanted the Cranes to pay half the cost. Mrs Crane instructed the agent to tell the Campbells that the Cranes agreed to the erection of the fence and would pay half the costs. Mrs Crane said that on 11 June 2002 Raine and Horne made a payment for half the cost of the fence to the Campbells out of the rental moneys they held. Mrs Crane said the she was not present when the fence was erected and did not have any involvement in organising the contractors who built the fence.

12 It is probable that the version given by Mrs Crane is correct.

13 Mrs Campbell said that in about May 2002 Mr Steven Pike, the fencing contractor, told her that the fence at the rear had not been erected straight and was veering onto the Campbell’s property. He explained that to join up the two fences would be difficult but he would try to join them up straight so it would not look like a dog’s hind leg. The front section of the boundary fence was not on the boundary line but slightly on the Campbell’s property. Mrs Campbell stated that following the erection of the fence (i.e. the front section), she asked Mrs Crane if she obtained a survey before putting in the retaining wall and fencing the back section and that Mrs Crane replied in the negative. Mrs Crane confirmed in cross-examination that no survey was obtained prior to the new colorbond fence being installed. Mrs Crane believed that the new colorbond fence was put on the line of the old paling fence which she had replaced. Mrs Crane denied that Mrs Campbell told her following the erection of the front section of the fence that the fencer had told her that they may have encroached with the fence and taken their bush rock for the retaining wall. I am unable to make a finding on this point.

14 About 1 November 2005 Mr Crane entered into an agreement with Dowling Real Estate to sell No 17. On 1 November 2005 the Campbells wrote to Mr and Mrs Crane advising that, according to the enclosed survey (being that of Mr MA Taylor of 10 February 1999), the fence erected between their two properties (15 and 17 The Parade) was not on the actual boundary line. From the date of the survey it can be deduced that this was the survey Mr and Mrs Campbell obtained when they purchased No 15. The survey diagram of 10 February 1999 indicates that, while part of the eastern wall of the flat on No 17 was on the boundary line, it did not encroach on No 15. At the rear of No 15, at the northern corner where Nos 15 and 17 adjoined, the dividing fence encroached for a very short distance to a minimal extent (0.1 m). The area between the northern end of the flat and the front boundary to The Parade along the common dividing line is shown as not fenced. Neither residence was set back the then required distances from the boundary.

15 In writing the letter of 1 November 2005 the Campbells were relying on a survey which was 6 ½ years old and did not reflect the position which then existed. That survey did not show the new colorbond fence which had been erected by Mr Crane or the one erected at the front of Nos 15 and 17, the retaining walls or the encroachment by the brick pavers around the swimming pool.

16 Both Mr and Mrs Crane stated that the survey attached to the Campbells’ letter of 1 November 2005 did not appear to support the assertion that the fence was not on the actual boundary line. They appeared to be substantially correct.

17 That letter did not warrant any attention and could be put to one side. On 17 January 2006 the Campbells wrote to the Cranes that they had received no response to their letter of 1 November 2005. The Campbells enclosed the same survey that was attached to the Campbells’ letter of 1 November 2005.

18 The Cranes were overseas in late January 2006. They received notice that his mother was very ill so they urgently returned to Sydney. After picking up some clothes from their home they travelled to Newcastle to be with his mother whom they visited in hospital. Mr Crane’s mother died on 12 February 2006. Mr Crane spent a considerable time with his father who suffered from dementia. It was necessary to help him understand that his wife had died. Mr Crane’s thoughts and those of his wife during late January – February 2006 were focussed on the health and welfare of his parents.

19 Mr and Mrs Crane said that in about late March / early April 2006 they considered the boundary issue raised by the Campbells. Mr and Mrs Crane decided to engage a surveyor. In April 2006 Mr Crane arranged for Mr David Walpole, a very experienced surveyor, to provide a survey report. Shortly after its receipt a copy of Mr Walpole’s survey report was given to the Campbells.

20 By April 2006 No 17 had not sold, little interest being shown by prospective buyers. Mr and Mrs Crane decided that the prospects of selling the property would be improved by performing some renovations including a new kitchen and bathroom. Mrs Crane organised the obtaining of quotations and the execution of the work. She attended at the property whilst the work was arranged and completed, that is, on occasions from 18 April 2006 to 1 September 2006.

21 Mrs Crane said that, following her visit to 17 The Parade of 17 August 2006 and the request of Mr Campbell, she arranged for the painter to paint the facia board and flat wall facing the Campbells’ property. Mrs Crane said that on her attending at the property in mid August 2006, Mrs Campbell raised with her that the fence the Cranes had built had been out of line with the boundary. Mrs Crane explained that she understood the colorbond fence was placed on the same line as the wooden fence and accepted that the colorbond fence appeared to be slightly out from the true boundary.

22 Mrs Crane said that on 25 September 2006 she arranged to meet a fencing contractor the following day to move a colorbond fence so he could quote. Mrs Crane next telephoned Mr Campbell and a conversation took place to the following effect:

“AC: Hi David, it’s Anna Crane. After our recent conversation the other day I have arranged for the fencing people to come out tomorrow morning at 10.00 am. I will have them take the colorbond fence down and rebuild it on the boundary line. Would you care to join us?

David: And you need to move the front fence as well.

AC: What do you mean?

David: You have to have the front section of fence moved as well.

AC: But you had that fence built. We had nothing to do with it apart from paying for half the cost.

David: The fence won’t line up if you just move the back section.”

AC: As you know David, the wall of the flat is on the boundary. It was like that when you bought your property and when we bought our property.

AC: I don’t like that wall.

AC: I’m sorry David but that wall is the boundary. I suppose you want me to move that as well?

David: You have to also have the concrete retaining wall moved off our property.

AC: What? The retaining wall was there when we bought the property. Because you raise all these other matters, I will have to seek legal advice and get back to you.”

23 After speaking with the Cranes’ solicitor, she telephoned Mr Campbell and cancelled the proposed appointment.

24 Following Mrs Crane giving Mrs Campbell a copy of Mr Walpole’s survey, Mr Campbell said he had a conversation in his front yard with Mrs Crane and asked her what she was going to do about the encroachments. He told her that he wanted the fence moved back and the concrete wall moved off their property. He stated that the fence had corroded and that the Cranes had not contacted them at all before putting in the fence and the retaining wall.

25 It is probable that, prior to the first telephone conversation between Mrs Crane and Mr Campbell on 25 September 2006 deposed to by Mrs Crane and which is substantially accurate, there was a meeting between her and Mr Campbell in which he raised with her moving the colorbond fence. I am not persuaded that he also raised with her moving the retaining wall on that occasion. I do not think that Mrs Crane would have contacted the fencing contractor and sought to arrange a meeting with him and Mr Campbell if she had thought that the Campbells wanted her to move the retaining wall.

26 On 4 December 2006 Mr Crane’s solicitor wrote to the Campbells:

“Having regard to the history of the relatively new fence and his contributions made for its construction, my client is not currently inclined to contribute to its realignment. … the survey [of Mr Walpole] … will be made available to any purchaser and … the current boundary … disclosed in the contract.
… My client believes that the fence should be allowed to continue until it requires replacement at which time it can be aligned with the deed boundaries.
My client is concerned that prospective purchasers may be distracted by your approaches to them, and should be pleased if you could discontinue such approaches and leave it to his selling agents to effect a sale without distraction.”

27 Mrs Crane said that, as a result of heavy rains in about late April and early May 2007 which had resulted in damage to the carpet in the flat, she arranged for Mr Simon Grierson of Domain Maintenance and Installations to attend 17 The Parade to rectify the water problem. About 23 May 2007 Mr Greirson commenced preparation at the property for waterproofing. Mrs Crane said that this involved performing work to the foundations of the rear exterior wall of the flat in the alcove, near the existing colorbond fence and directly in front of the pool filter.

28 Mrs Campbell said that on 24 May 2007 she looked over the fence and noticed that a portion of the concrete between the wall of the flat and the fence had been broken and removed and concreting form work had been placed between the brick wall and the fence.

29 Mr Campbell said that at about 5.15 pm on 24 May 2007 he spoke with a man called Simon. After introducing himself as the owner of 15 The Parade, this conversation occurred:

“DC: Do you know that you have encroached and trespassed with the removal of concrete and placing of formwork with the works you are doing at 17 The Parade …? The boundary of the properties is the rear wall of the flat. There is litigation going on about it.
Simon: I wasn’t aware that there was litigation going on. Mrs Crane had only told me the fence was in an incorrect spot. I’m sorry, I will remove it.”

30 Mrs Crane became aware that there had been a complaint of a piece of board being on the Campbells’ property.

31 On 28 May 2007 Mrs Crane attended at 17 The Parade and ascertained that there was a piece of formwork for a concrete slab that was to be laid as part of the waterproofing repairs and that such piece of wooden formwork extended some 10 cms onto the Campbells’ property but was on the Cranes’ side of the colorbond fence. On Mrs Crane’s instructions, Mr Grierson, in her presence, cut off the piece of wood protruding onto the Campbells’ land.

32 Mrs Crane went to the Campbells’ property and invited them to inspect and check that everything was satisfactory. There was then a spirited conversation between Mrs Crane and the Campbells and Mrs Crane was asked to leave. She did so eventually.

33 Whilst it was not suggested that the works of Mr Grierson extended beyond the fence, the Campbells contended that in working between the wall and the fence Mr Grierson had committed a trespass. Their complaint was not limited to the protruding piece of formwork. Mrs Crane denied that any work was being carried out in the narrow gap between the brick wall of the flat and colorbond fence. While the actual work done was probably confined to the brick wall, access to do that work would probably have involved using that narrow gap. Further, Mr Walpole’s diagram shows that the brick retaining wall encroached by 0.21 m and that at one point the concrete footings encroached by 0.21 m.

34 This litigation commenced by Summons filed 15 June 2007. Both the Campbells and the Cranes obtained further survey reports, the Campbells from Mr ED Carman and Cranes from Mr Walpole. There is very little difference between the two reports. Mr Carman, in his report of 21 August 2007, found several structures erected upon 17 The Parade stood partly upon 15 The Parade, namely:

“An aboveground service conduit is situated within the subject property by up to 0.08 metres,

a concrete path standing up to 0.035 metres upon the subject property,

a concrete strip abutting the wall of the adjoining residence standing up to 0.23 metres upon the subject property

the footing of the wall of the adjoining residence standing up to 0.12 metres upon the subject property,

a subsoil drainage line is situated within approx 0.19 metres within the subject property,

the facia attached to the eastern wall of the adjoining residence overhangs the western boundary of the subject property by up to 0.02 metres,

a brick retaining wall standing up to 0.21 metres within the subject property,

the paving of a pool area erected upon the adjoining property to the west stands upon the subject property by up to 0.2 metres,
the electrical switch attached to the dividing fence erected upon the above mentioned paved area overhangs the western boundary of the subject property by up to 0.25 metres and
a timber retaining wall standing up to 0.09 metres upon the subject property.”

Mr Carman wrote:

“Also it appears that the subsoil drainage line situated within [15 The Parade] discharges over [15 The Parade]. The extent of the flow has not been investigated by me. During the course of the survey no investigation has been undertaken to determine the existence of any possible subterranean encroachments.”

35 Mr Walpole in his later report of 13 May 2008 wrote:

“There are only two survey matters in Evan Carman’s Report that I disagree with:
(i) Mr Carman’s Report indicates that a facia attached to the eastern wall of No 17 The Parade overhands the subject boundary by 0.02 metres. The actual material which overhangs is a metal capping strip which is bent outwards at the base and not a facia board. The actual facia board starts 3.3 metres from the end of this brick wall and is clear of the boundary by 0.04 metres. This can be seen in the diagram on my sketch. The end of the metal capping which overhangs the boundary can be seen in photo No 5 just above a red and white card I have attached to the corner of the brick wall.
(ii) Mr Carman’s Report indicates that a concrete strip encroaches 0.14 metres at the southern end of the brick wall. Upon investigation I found the concrete at this point was in fact the remains of an old concrete path or slab which extends out underneath the colorbond fence. This old concrete path is approximately 4 metres long and extends over the boundary by up to 0.47 metres. This is as indicated in my attached sketch plan. The old concrete path was approximately 0.05 metres deep below gravel on the eastern side of the fence. Its eastern edge is uneven and broken. This can be best seen in photo No 2. It was difficult to determine if the concrete path extended any further north or south from the position shown. Mr Campbell indicated to me that he believed the concrete to be the remains of an old concrete path which once extended between the walls of the two houses before the fence was erected.”

36 It will be seen that Mr Carman holds the view that a concrete path abutting the wall of the adjoining residence [17 The Parade] stands up to 0.23 metres upon 15 The Parade whereas Mr Walpole found that this old concrete path is approximately 4 metres long and extends over the boundary by up to 0.47 metres.

37 Both Mr Carman and Mr Walpole had many years of experience and their reports and diagrams indicated that both had taken considerable care. I agreed with the joint decision of counsel that no point would be served by cross-examining them. The cost of bringing these two surveyors to Sydney for cross-examination would have been disproportionate, especially as nothing was likely to be gained by such an exercise.

38 Both parties used the diagram prepared by Mr Walpole showing the encroachments. A copy is attached as Schedule A. I regarded most of the encroachments as minor. I did not regard the encroachment of the subsoil drainage line as minor because it has the potential to discharge over 15 The Parade. It is not permissible for this to remain in its present position. Some other way of disposing of the subsoil drainage must be found.

39 Counsel for the Campbells submitted that I should adopt Mr Walpole’s view that the old concrete path extends over the boundary to 0.47 metres, rather than that of Mr Carman that it extends for up to 0.23 metres. From photos 2 and 3 attached to Mr Walpole’s report it can be seen that this path is in an advanced state of decay inside 15 The Parade. It has probably been there for many years and prior to 1989. It would also have been there at the time the Campbells purchased the property. The old part of the old concrete path on lot 15 should be ignored or removed.

40 It appears from Mr Walpole’s survey plan attached to his report of 13 May 2008 that one of the concrete footings encroaches to the extent of 0.3 metres in one small area, and so does part of the colorbond fence for a small distance. There are other encroachments of a lesser order.

41 Counsel for the Campbells was instructed not to ask for an order that a sliver of land be conveyed or an easement granted over it. Their preference was for an order that the encroachments be removed. It was submitted that their wishes should be given effect as they were the innocent parties and in no way to blame. The problems that have arisen could have been avoided if the defendant had first obtained a survey before replacing the old fence.

42 At one stage I contemplated whether the court should direct the removal of the above surface infringements such as the fence but not disturb the footings. On reflection, that would be a messy and costly solution and one likely to raise further problems.

43 I do not think that an order for the removal of the various minor encroachments is warranted. When the Campbells purchased the property and obtained the survey report of 10 February 1999 of Mr Taylor of Asquith & de Witt Pty Ltd, it was obvious that portion of the wall of the building of No 17 The Parade was on the boundary line between Nos 15 and 17. Neither the buildings on 15 or 17 complied with the then current regulations. It was apparent that the buildings would not be affected because of their age. There also appeared to be other encroachments, namely in relation to portion of an old concrete path and part of the old fence at the very rear of No 15. Mr Taylor has marked a small area at the end of the building on No 17 as not fenced. The difficulties principally arose in 1999 when the old fence at the rear of the premises was demolished and the new colorbond fence was installed. I accept that this was done to ensure that the pool was adequately fenced and to avoid accidents involving young children, including drowning. It was not done to acquire the use of the land of the Campbells. It was a prudent safety measure and probably necessary. The defendant paid for the whole of the colorbond fencing. Mrs Crane said that the new colorbond fencing was to follow the line of the old fencing. It deviated very slightly in places.

44 In 1999 the Campbells were not living at 15 The Parade. It was let. It was the contention of the Campbells that the defendant should have taken his rate notice to the local council, sought the name and address of the owners of 15 The Parade and contacted them before proceeding with the work, assuming Council was prepared to supply such information. It was also the contention of the Campbells that the defendant should have obtained a fresh survey and ensured that any new fence was erected on the correct boundary line.

45 As earlier mentioned, in 2001 the Cranes had work done on 17 The Parade, generally around the pool.

46 In his survey report of 21 August 2007, Mr Carman wrote that he had not investigated the extent of flow from the subsoil drainage line over 15 The Parade. There was no other evidence on this last mentioned point. The evidence does not support a finding of significant damage from harmful discharges. Nevertheless, the subsoil drainage line has an unwelcome potential. Apart from this I do not propose to order the removal of any encroachment. My mind has fluctuated as to whether an easement of support of 0.3 metres wide should be granted along the eastern boundary of 15 The Parade in favour of 17 The Parade, or a conveyance of that strip directed. The Campbells have a narrow block, are keen gardeners, want to enjoy the whole of their land and regard every part of their land and valuable and precious. There is also Mr Campbell’s disability. On the other hand, easements often involve a measure of cooperation between the owners of the dominant and servient tenements. Relations between the Campbells and Cranes are strained. They are unable to work together. A conveyance would probably lead to less disputes in the future. The better course is to order a conveyance of that small strip. Its loss will not affect, in any real way, the enjoyment by the Campbells of their land.

47 The Campbells sought damages for the trespass or trespasses which have occurred. They also sought aggravated and / or exemplary damages. They gave these particulars:

“(i) the defendant erected the colorbond fence that encroached by up to 0.3 metres on the plaintiffs’ property and retaining wall in circumstances where he knew or ought to have known that the fence and retaining wall would encroach upon the plaintiffs’ property;
(ii) the trespass, in the circumstances, displayed a wanton and / or an intentional disregard for the plaintiffs’ rights to enjoy their property;
(iii) the work performed in and around 23 May 2007 and the defendant’s trespass on that occasion, showed an intentional disregard for the plaintiffs’ proprietary rights in that it was perpetrated on an occasion when the parties were then in dispute as to the matters referred to paragraphs 6, 7 and 8 of the Amended Statement of Claim (the fence, the concrete retaining wall, the aboveground service conduit encroaching up to 0.08 metres, the subsoil drainage line encroaching 0.19 metres, the paving around the pool encroaching up to 0.2 metres, the electrical switch encroaching and a timber retaining wall encroaching up to 0.09 metres).

48 Taking all the encroachments together I am of the opinion that the plaintiffs suffered minimal damage.

49 As to their claim for aggravated and exemplary damages

(a) I do not agree that the defendant knew that the fence and the retaining wall would encroach upon the plaintiffs’ property. It would have been better if the defendant had obtained a survey prior to having the colorbond fence erected, but it was not thought necessary as the new fence being erected as part of safety measures was to be on the same line as the old fence.

(b) I do not accept that the trespass displayed either a wanton or an intentional disregard of the plaintiffs’ rights to enjoy their property.

(c) I do not accept that the work performed on and around 23 May 2007 showed an intentional disregard for the plaintiffs’ proprietary rights.

(d) I do not accept that any trespass on or around 23 May 2007 was accompanied with abusive and contumelious language and conduct.

(e) The plaintiffs did not press any claim for the value of their bush rock which they asserted the workmen engaged by the defendant used in a retaining wall / footings but asked that I take the use of their bush rock into account when considering the question of aggravated or exemplary damages. That rock was apparently lying around, and did not appear to belong to anyone or have an appreciable value. I did not regard its use either alone or in conjunction with other facts as warranting an award of aggravated or exemplary damages.

50 I do not think aggravated or exemplary damages should be awarded. The incident from about 23 – 28 May 2007 has been blown out of proportion. Mrs Campbell said that she told Mrs Crane that she (Mrs Crane) was not being truthful. Shortly after Mrs Crane heard that there was a complaint about what the workmen were doing she went to Belmont to attend to the matter.

51 I do not think that the defendant should be called upon to meet the cost of shifting the front portion of the dividing fence constructed at the instigation of the Campbells and the fencing contractor they selected.

52 I would award the plaintiffs $6,500.00 for damages for trespass.

53 I would order that the defendant remove from the plaintiffs’ property, 15 The Parade , Belmont the subsoil drainage line. (The defendant should ensure that the subsoil drainage does not discharge over the plaintiff’s property on removal of the encroaching subsoil drainage line as that could lead to further action.)

54 I would order that the plaintiffs convey to the defendant a narrow strip 0.3 metres wide adjacent to and along the eastern boundary of the plaintiffs’ property. The legal costs of both the plaintiffs and the defendant of such conveyance are to be borne by the defendant.

55 I am not satisfied that the encroachments did not arise from negligence in that a survey was not obtained when it was prudent to do so. Compensation is to be paid by the defendant to the plaintiffs in respect of the conveyance or transfer of the strip 0.3 metres wide in accordance with s 4 of the Encroachment of Buildings Act 1922. The parties should endeavour to agree on the compensation payable. In default of agreement, that issue should be referred to an expert valuer appointed by the Court. (The parties are to be at liberty to agree upon an alternate method of proceeding. I would prefer to avoid a situation where the costs of the valuation exercise are out of proportion to the compensation.) The compensation is to be in addition to damages for trespass.

56 I give these directions:

1. The plaintiffs are to serve on the defendant Short Minutes to give effect to this judgment on or before 18 May 2009 (with a copy to my Associate).

2. The defendant is to serve on the plaintiffs on or before 26 May 2009 any amendment it desires to such Short Minutes or its own draft Short Minutes (with a copy to my Associate).

3. List the matter on 2 June 2009 at 9.30 am to settle the Short Minutes of Order and resolve any outstanding issues.

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Schedule A