Chapman v Plenty Views Pty Ltd, Di Carlo and Di Carlo
[2009] VCC 1271
•16 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-08-02092
| DENISE BERNADETTE CHAPMAN | Plaintiff |
| v | |
| PLENTY VIEWS PTY LTD | First Defendant |
| ACN 006 817 205 | |
| and | |
| CESIDIO DI CARLO | Second Defendant |
| and | |
| FRANCA DI CARLO | Third Defendant |
---
| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22, 23, 24, 25, 26 and 29 June 2009 |
| DATE OF JUDGMENT: | 16 October 2009 |
| CASE MAY BE CITED AS: | Chapman v Plenty Views Pty Ltd, Di Carlo and Di Carlo |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1271 |
REASONS FOR JUDGMENT
---
Catchwords: Nuisance caused by golf balls struck from golf driving range – relief sought as injunction and damages.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R Horgan SC with | Best Hooper |
| Mr B J Murphy | ||
| For the Defendants | Mr J D Wilson SC with | Ferdinand Zito & Associates |
| Ms K Foley Lowe | Pty Ltd | |
| HIS HONOUR: |
Preliminary
1 The plaintiff, Denise Chapman, is the registered proprietor of a property at 111 Heard Avenue, Plenty (“The Chapman property”), and has lived there with her five children since May 2007.
2 The second and third defendants are the registered proprietors of a property at 206 Yan Yean Road, Plenty at which the first defendant conducts a golf driving range known as “Plenty Views Golf Park” (“the golf range”). Mr Eustacchio Di Carlo (“Robert Di Carlo”) is the son of the second and third defendants and the manager of the golf range. The first defendant is a “family company” of the Di Carlo family.
3 The golf range lies on approximately ten acres and is a rectangular property running generally west to east. It is zoned ‘Rural Conservation’ within the Shire of Nillumbik. It comprises a car park, a restaurant, approximately twenty golf driving bays (“the bays”) set in a line, and a large fairway with holes or markers set at various distances roughly down the centre. The fairway falls away significantly as the property looks east. A planning permit had been obtained to use the property as a golf driving range.[1] No part of the original permit required barrier netting to be constructed to prevent balls being hit onto the Chapman property.[2]
[1] Court Book (“CB”) 97
[2] Transcript (“T”) 353
4 The Chapman property, of approximately five acres, lies on the northern boundary of the golf range at its eastern end. The whole of the southern boundary of the Chapman property abuts the golf range. Standing on the Chapman property is a four-bedroom house, various shedding and out buildings, a pool, and to the south, open areas of land, including a dam and a small but steep gully area. The Chapman family has used, and continues to use the property for residential purposes.
5 The juxtaposition of the two properties can be seen on an aerial photograph.[3] The area ringed in red is the Chapman property. The property to the south is the golf range. The orange-coloured roofing covers the bays, office and restaurant. Golfers hit from under the roofing east down the fairway.
[3] CB 29
6 The issues which I am called upon to determine in this proceeding are:
(a)
Whether golf balls hit by patrons of the golf range into the Chapman property constitutes a nuisance;
(b)
If so, what relief is appropriate both as to damages and an injunction to abate the nuisance?
The History of the Golf Range
7 The golf range was constructed by the Di Carlo family in or about 1997.[4] The construction cost was in the order of $2 million.[5] A restaurant was established at the outset, but its operation was contracted out some five years ago. Robert Di Carlo has been in effective control of the golf range since its inception, although since complaints by the Chapman family about the golf balls arriving into their property, he has spent more time at the range. He has also been involved in the family’s civil construction business. There are improvements currently being undertaken to the range, including to the reception areas, at a cost of approximately $350,000.
[4] T 282
[5] T 293
8 The golf range has been used by a cross section of the community, including local school children who attend as part of their sporting curriculum. Its most intensive use is at weekends. There is a golf professional who uses the range for teaching. The range is well-attended by the general public who purchase buckets of golf balls and then proceed to drive the balls down the fairway using a range of clubs. The distance and the direction in which the golf balls are hit varies depending upon the skill of the golfer. While most patrons behave responsibly, a proportion drives the golf balls with great vigour, but without great accuracy. There was reference in the evidence to “Happy Gilmore golfers”, so named after a character in a movie who was known to run at the golf ball and take an energetic swing, with unpredictable results.
9 Some patrons have even been known to target landmarks in the area, including the dam on the Chapman property.
10 To the west of the Chapman property, and abutting the golf range at its northern boundary is a property owned by a person known as Jack (“Jack’s property”). Robert Di Carlo gave evidence that he has had a good relationship with Jack over the years, who is himself a golfer. There have been golf balls which have landed on Jack’s property, but he has obliged by hitting them back over the fence.
11 The previous owners of the Chapman property were Mr and Mrs Brown, with whom Robert Di Carlo also had a good relationship. He acknowledged that before the Chapmans took occupation, golf balls were hit into what is now the Chapman property but employees of the golf range were permitted entry by the Browns through a gate and would collect the balls from time to time.[6] He said that 200 or so golf balls per week were collected from the property.[7] Some of these balls, he claimed, came onto the Chapman property under the fence between it and the golf range.[8] In the five years before the Chapman family took occupation in 2007, Mr Di Carlo had arranged for a diver to go into the dam on the Chapman property, where he recovered 10,000 or so golf balls.[9] This was repeated in 2004 or 2005, when another 5,000 golf balls were collected.[10]
[6] Lower photograph CB 81, T 284
[7] T 288
[8] T 292
[9] T 341
[10] T 357
12 Robert Di Carlo gave evidence there was no complaint from Jack, nor Mr and Mrs Brown, nor indeed from any other person before 2007 about errant or stray golf balls landing in adjoining properties.
13 Upon the boundary between the golf range and the Chapman property and Jack’s property is a wire mesh fence standing a metre and a half to two metres’ high.[11] From time to time, gaps appeared at the base of the fence as a result of rabbits and general wear and tear, and planks of wood were laid upon the bottom edge designed to prevent passage of golf balls.[12]
[11] See photographs CB 81-86
[12] See photographs CB 81-83
14 In approximately 2002 or 2003, a number of timber poles were erected along the northern side of the golf range and netting strung between the poles.[13] Robert Di Carlo said this was done to save having to collect the balls which went into the Chapman property. For the same reason, further netting was erected upon black steel poles in the same area in 2003 or 2004.[14]
[13] See photographs CB 74, 75, 77-80, T 356-7
[14] See photographs CB 75, 77-80, T 356-7
15 Over the period from January 2007 to December 2007, approximately 2.4 million golf balls were struck from the bays of the golf range. In the period from January 2008 to December 2008, a further 1.8 million golf balls were struck.[15]
[15] Exhibit K
16 Robert Di Carlo claimed that he had met Mrs Chapman and in fact knew her well before the Chapman family took occupation in May 2007.[16]
[16] T 298
The Chapman Family and Mr Mervyn Dickey
17 Mrs Chapman, her husband and family had lived in various semi-rural properties in and around Melbourne.[17] Some fifteen years ago, she and her husband were involved in litigation concerning the compulsory acquisition of land owned by them. That litigation was unsuccessful from their perspective, and both were made bankrupt in 1997 as a result. They were discharged from bankruptcy in March 2001.[18]
[17] T 35
[18] Exhibit A
18 Mrs Chapman’s husband died in 2004 from cancer. She was left with the management of a large family, with no assets and little income. As a result of these circumstances, I accept she was concerned about, and reluctant to enter, legal proceedings concerning the problems which arose after her purchase of the Chapman property.
19 She and her family were, and remain, active members of the Diamond Valley Baptist Church. Mr Mervyn Dickey (“Mervyn Dickey”) was a member of this church for a period, and coincidentally lived at one point near the Chapman family. He lost his wife to cancer, also in 2004.
20 Mervyn Dickey has been involved in the acquisition, subdivision and development of various significant areas of semi-rural land around Melbourne. He has been successful in that regard, and is financially well off.
21 The purchase of the Chapman property by Denise Chapman and her family came about in somewhat unusual circumstances. Having met Mrs Chapman, Mervyn Dickey determined that he would assist her in the purchase of a property, given her circumstances. In 2005, he and his family offered to provide the purchase price for a suitable property for the Chapman family up to an amount of approximately $800,000. This is evidenced by a letter from Mervyn Dickey to Denise Chapman of 28 November 2005.[19] From that time until the purchase of the Chapman property, Denise Chapman and her family looked at various properties, and decided upon Heard Avenue.
[19] Exhibit 2
22 It is clear from the evidence that Mervyn Dickey has been a driving force in the instigation of this proceeding, and its conduct. In fact, Denise Chapman provided a specific power of attorney in April 2008 to enable Mervyn Dickey to conduct the litigation.[20] Given the provision of the purchase price by Mervyn Dickey, his knowledge and experience in property development, and his conduct of the litigation on behalf of Denise Chapman, it was suggested by Mr Wilson in the course of his cross-examination of Mervyn Dickey, although not pursued with vigour in submission, that his involvement had an ulterior motive, that is the sale of the Chapman property for profit. I reject that contention. I am satisfied that the provision of the purchase price by Mervyn Dickey to the Chapman family was motivated by altruistic intent, and not commercial gain. I am further of the view that Mervyn Dickey’s involvement in the litigation, and the negotiation which occurred before it, was also motivated by a genuine desire for the welfare of the Chapman family, rather than for the production of a scenario which would maintain or enhance the value of the Chapman property.
[20] Exhibit 1
23 Denise Chapman gave evidence that it was a matter entirely for herself and her family as to whether they retained the property or sold it, and, further, that the whole of the proceeds, were the property to be sold, would remain with herself and her family, and not be refunded to Mervyn Dickey.
24 At the outset, it was said by Mr Wilson that Mervyn Dickey was “driving” the litigation.[21] This may be so, given the power of attorney directed by Denise Chapman to Mervyn Dickey, and the fact that he is funding the litigation, but I am satisfied that his involvement reflects a genuine desire to assist Denise Chapman and her family, and her lack of experience in, and concern about, the litigation process, and is not motivated by any ulterior intent.
[21] T 72.25
25 At all events, Denise Chapman purchased the Chapman property by contract dated 14 March 2007[22] for the sum of $700,000. The whole of the purchase price, and associated costs, were paid by Mervyn Dickey. Prior to signing the contract, Denise Chapman and various members of her family inspected the property on two occasions,[23] and, while appreciating that it was lying alongside a golf driving range, saw no golf balls anywhere upon the property. The only evidence of any incursion of golf balls was a small hole in the wall of a building adjoining the house.[24] The inspection involved a detailed “walk around” the property, and, in that course, Denise Chapman asked the previous proprietor whether there was any problem with the golf balls. Mr Brown did not alert her to any problem with the golf range.[25]
[22] CB 27-28
[23] T 36
[24] T 37
[25] T 77
26 Prior to the purchase, Denise Chapman had visited the restaurant at the golf range with her husband over a number of years,[26] and she thought her son had used the range. Further, one of her daughters had undertaken some work experience at the restaurant. There is little doubt that Denise Chapman and her family were aware of the golf range adjoining the Chapman property and the use to which it was put by patrons hitting golf balls down the range. I am satisfied from the evidence, however, that the family were not aware of the incursion of the golf balls into the Chapman property until after they took possession in May 2007. It was from that time, they became aware that indeed golf balls were struck from the bays into the Chapman property in significant numbers.
[26] T 75
27 The purchase of the Chapman property by Denise Chapman and her family was undertaken as the property met various criteria which she and her children had established. Primarily amongst these was the enjoyment of the residential, semi-rural amenity of the area.
Ingress of Golf Balls onto the Chapman Property and Complaints Made
28 Shortly after taking possession, it became apparent that a significant number of golf balls were coming into the Chapman property from the golf range. In the period from May to July 2007, 1400 golf balls were collected by Denise Chapman and her family and placed into bags. This exercise was undertaken as she appreciated the need to accurately assess the number of balls coming into the property, and from that time, the balls were placed into bags and counted.[27]
[27] T 40-41
29 As time passed, the entry of golf balls onto the property continued. The balls were counted principally by Denise Chapman,[28] but her children assisted. Correspondence passing between Denise Chapman and Mervyn Dickey indicates the progress of the ball count.[29] That count revealed the following:
[28] T 99
[29] CB 58, 59, 60, 61, 62, 63, 64, 66, 67
Up to June 2008: 10,403 golf balls Up to November 2008: 14,704 golf balls Up to June 2009: 20,000 golf balls
30 Prior to the commencement of the trial, these golf balls were transferred in bags to a security company, and counted. The count revealed 20,003 golf balls.[30]
[30] Exhibit B
31 It was put to Denise Chapman in cross-examination that a proportion of these golf balls may have been upon the property before May 2007. I accept it is possible some balls may have been there, hidden possibly in long grass or embedded into the ground, but I am satisfied the number would be small, given the inspection that was carried out before purchase. It was further suggested that a number of golf balls may have come onto the Chapman property by admission under the chain-wire fence located along the boundary between the properties, or alternatively through Jack’s property to the west. Again, however, I am of the view that if this occurred, the number would be very modest. I am satisfied the overwhelming majority of the 20,000 golf balls collected from the Chapman property over the period from May 2007 to June 2009 came from being struck from the bays and driven into the Chapman property on the full, or bouncing over the various fences and barriers on the boundary.
32 Mr Horgan sought to tender the golf balls, but, in lieu, I accepted a photograph of the balls taken by the security company responsible for the ball count.[31]
[31] Exhibit B
33 Various of the witnesses gave evidence that the majority of the golf balls struck from the golf range landed in the area marked ‘A’ referred to in the overhead photograph at Court Book 30. Other golf balls landed in the area marked ‘B’ and also ‘C’.
34 Of significance was the evidence of Denise Chapman[32] that after the count had been completed by the security company, and in the period up to 20 June 2009, a further 700 golf balls were collected. The significance of the collection of these balls lies in the fact that Robert Di Carlo gave evidence that during this period the various remedial steps he had undertaken at the golf range had stopped the incursion of golf balls into the Chapman property.
[32] T 67.4
35 In addition to this evidence, various other witnesses gave evidence as to their observations of golf balls entering the property. Denise Chapman’s daughter, Rachel, said that there were no golf balls at the property when she first inspected it before the family took occupation.[33] On an occasion in approximately July 2007 when she and her brother Joshua, were planting trees around the dam on the property, three balls landed close to where the group were working. One hit Joshua’s car, and another just missed Rachel’s friend’s face.[34] Following this episode, Denise Chapman telephoned the range[35] and spoke to an employee named ‘Jake’. His response was: “You can’t help where the balls go when you’re playing golf.” Denise Chapman went back outside, and more balls came over the fence. She rang again and threatened to call the police. Jake came to the adjoining fence between the properties some short time later and apologised. Denise Chapman recorded the event.[36]
[33] T 317
[34] T 319
[35] T 42-44
[36] CB 34-36
36 As recently as a week prior to the commencement of the trial, Rachel Chapman was having breakfast outside at the Chapman property, and saw a number of golf balls coming over the fence.[37]
[37] T 317
37 Another of Denise Chapman’s daughters, Rebekah, gave evidence. She lived at the property from May 2007 until November 2007, when she married and moved to Melbourne. She also inspected the property at the outset[38] and saw no golf balls. Thereafter, she saw balls regularly coming over the fence. On an occasion in May 2007[39] she was sitting next to the swimming pool adjoining the house at the Chapman property when a ball landed on paving adjoining the pool, near where she was sitting. She photographed the ball.[40]
[38] T 327
[39] T 329
[40] CB 69
38 On another occasion, a number of Denise Chapman’s children were in the area of the dam when a number of golf balls landed in the dam. The episode was photographed with a friend’s camera.[41]
[41] CB 68, T 46
39 In January 2008, a number of children from a local church were playing in the area of the dam when a ball landed close to where the children were playing. Denise Chapman again contacted the golf range to complain, and was advised that the golf range was under new management, although it could not be helped that some balls would go over the fence.[42] The episode was again recorded by Denise Chapman.[43]
[42] T 48-49
[43] CB 38
40 In May 2009, Mr Ongarello, a Valuer, attended the property to provide a valuation for the purpose of the trial. On that occasion, he saw a number of golf balls coming over the fence.[44] Ms Paige Vesty, a clerk employed by the plaintiff’s solicitors, went to the property in December 2008 and was there for about an hour. During that period, she observed hundreds of golf balls on the ground, and saw three balls come over the fence.[45] Mr Baird, an engineer retained by the plaintiff, saw a substantial number of golf balls upon the property when he inspected it in 2009.[46] Mervyn Dickey also saw many golf balls on the property when he was there at various times.[47]
[44] T 252
[45] T 257
[46] T 264
[47] T 186
41 In March 2008, a meeting occurred between Denise Chapman, Mervyn Dickey, Robert Di Carlo and Cesidio Di Carlo, Robert’s father. The circumstances which led to the occurrence of this meeting, and the detail of what occurred, was the subject of significant evidence and cross-examination in the course of the trial. I am satisfied from the evidence of Robert Di Carlo, that he arranged the meeting not because of any complaints made by the Chapmans, but rather because up until that point, he had not been certain who had purchased the property, and wanted to make arrangements to recover the balls which had been hit over the fence. It may be reasonably argued that he, as the manager of the golf range, ought to have known of the complaints made, given the telephone calls made to that point by Denise Chapman, but nothing turns on the point. It appears clear that at this meeting Mervyn Dickey led the discussion, and made a number of demands. He said that the signs then in existence were inadequate in warning patrons not to hit golf balls towards the Chapman property. He said a number of the bays at the northern end ‘had to go’. He wanted to know the proposals Robert Di Carlo had to place nets around the bays and when those nets would be installed. He demanded to see Robert Di Carlo’s public liability policy. Further, he demanded that no golf balls at all were to be hit from the bays into the Chapman property. He suggested that there be better training of staff at the golf range, and it is clear that Robert Di Carlo was advised that 700 golf balls per month were traversing the fence into the property.[48]
[48] T 52.25
42 Thereafter a raft of correspondence passed between the respective solicitors making demands that the alleged nuisance be abated.
43 It is put on behalf of Robert Di Carlo that Mervyn Dickey at this meeting, and through subsequent correspondence, was demanding and intimidating. Denise Chapman described his attitude as confident. It was suggested that had his approach been more conciliatory, there would have been better prospects of the matter being resolved without the need to proceed to litigation.
44 Again, I am not called upon to determine the point, but a more conciliatory approach would have made resolution of the dispute more likely. I am, however, satisfied that Mervyn Dickey’s approach was motivated by a genuine concern for the health and welfare of the Chapman family.
45 Robert Di Carlo admitted that he knew golf balls were being struck over the fence and landing in the Chapman property.[49] It had never been the subject of complaint, however. His evidence was that after the various remedial steps were taken, very few, if any balls struck from the golf range did land into the Chapman property.
[49] T 381-2
Remedial Action Taken by the Defendants
46 Prior to the occupation of the property by the Chapman family, nets attached to two types of poles, namely, wooden telegraph poles, and black steel poles, had been erected along the adjoining boundary.[50] Further, there were two signs near the bays at the golf range which advised:
“Any patrons misbehaving will be asked to leave immediately.”[51]
[50] See two photographs – Exhibit F
[51] T 182, 285
47 After the concern expressed by Denise Chapman and Mervyn Dickey at the March 2008 meeting, the defendants took various remedial steps in an attempt to reduce and eliminate the ingress of golf balls onto the Chapman property. These remedial works were said by Mr Wilson to “represent a mainstay of the defendants’ defence in this case ….”.[52] It was said that these works had the effect of reducing to the point of a reasonably acceptable level, the ingress of the golf balls.
[52] T 26
48 According to the evidence of Robert Di Carlo, he undertook the following works:
(a)
Immediately after the meeting of March 2008, he dismissed a number of young part-time employees who he determined did not have sufficient experience to properly control patrons, particularly those likely to produce errant shots;[53]
(b)
Robert Di Carlo, and his cousin Anthony were upon the premises on a full-time basis to supervise all of the activities;[54]
(c)
A number of additional signs were erected at the golf range which, in general compass, warned patrons to avoid, whether deliberately or accidentally, hitting golf balls into the Chapman property. Any breach of that dictum would result in a request to leave the premises;[55]
(d)
At a time some weeks before the commencement of the trial, the angle of the bays was altered at considerable cost (said to be $35,000 to $40,000) so as to direct golfers to strike the ball further to the south, or away from the Chapman property.[56] The dividers between the bays were also raised;
(e)
Robert Di Carlo telephoned five local schools and advised that students were no longer permitted to attend as part of their sports curriculum.[57] All students were said to be prevented from playing, except ‘special needs children’;
(f)
Supervision of all patrons was increased, with care being taken to ensure those golfers who had the capacity for errant shots were cautioned;
(g)
A contractor was retained to repair the existing fences, particularly by placing boards along the bottom to prevent golf balls straying under the netted barriers and into the Chapman property;[58]
(h)
‘Fly nets’ or short nets protruding from the eastern ends of the bays were attached so as to more carefully direct shots from the patrons;[59]
(i)
Several new target greens were installed farther down the fairway so as to direct patrons again away from the Chapman property, and to the south;[60]
(j)
Low flight golf balls had been introduced some years before which were said to be made of a different material which reduced the distance of flight by some 15 or 20 per cent;
(k)
A direction was given to patrons about the importance of reading the signs warning of the problem of golf balls being struck into the Chapman property.[61]
(l)
Towards the end of the trial, Robert Di Carlo stated that he had determined to close the golf range to the public and permit only members to enjoy the facilities. Although it was not completely clear from the evidence, members were said to be those who had been examined, and determined to be able to hit the ball with reasonable accuracy.[62]
[53] T 306
[54] T 307
[55] See the various signs in Exhibits 7, 8, 9, 10, 11 and 12: T 307
[56] See photographs: Exhibit 4, 5 and 6
[57] T 308
[58] T 310
[59] T 311
[60] T 312
[61] See Exhibit 3
[62] T 448
49 Further to the steps taken above, Robert Di Carlo stated that he proposed[63] to excavate an area in front and below the twenty bays, and locate ten of the existing bays at a level approximately 5 metres down. This was to be achieved by digging down 5 metres and providing bays for the less experienced golfers at the lower level. More experienced golfers would have use of the top ten bays. The cost of this work was estimated to be $120,000.[64]
[63] T 343
[64] T 344
50 Generally, I found Robert Di Carlo to be a credible witness. I accept that despite complaints made to the golf driving range before the meeting of March 2008, he did not perceive the golf balls landing in the Chapman property as causing any significant problem, even although he appreciated that balls were landing over that fence. I further accept that he has undertaken the steps referred to above in an attempt to reduce the number of balls transgressing into the Chapman property. The problem, however, is that despite these remedial steps, the large number of balls encroaching into the Chapman property has continued. The statistics provided are not sufficiently detailed to reveal the reduction in the number of balls associated with the introduction of those steps. What is clear, however, is that the balls have continued to pass over the fence in significant numbers. In the weeks leading up to the commencement of the trial, Denise Chapman collected approximately 700 golf balls. Approximately 14,700 balls had been collected by November 2008.[65] Between that time and June 2009, a further 5000 or so balls were collected.
[65] CB 67
51 It is clear that the remedial action taken by Robert Di Carlo, has not had the effect of significantly reducing the ingress of golf balls into the Chapman property.
Expert Evidence
(a) Peter Ongarello – Valuer 52 Mr Ongarello gave evidence as to the value of the Chapman property. He said that as at May 2009, the value of the property, without the ingress of golf balls from the driving range, was $820,000. With 700 golf balls per month entering the property, the value fell to $615,000. The difference was achieved by deducting the cost of erecting a suitable fence or barrier. There was no detail as to how the cost of the barrier was arrived upon, save that he said that quotations had established the cost at $1000 to $1400 per linear metre for a 15-metre high barrier, and approximately double that for a 30-metre high barrier.
53 From a rental perspective, he said the Chapman property would return approximately $34,000 per annum in rent without the ingress of golf balls, and $27,000 per annum with the ingress.
(b) Richard Baird – Engineer 54 Mr Baird was retained by the plaintiff to give evidence as to the trajectory of golf balls from the golf range. His report was tendered into evidence.[66] He went to the Chapman property on 12 June 2009. He concluded there was no economically viable barrier which could be located between the golf range and the Chapman property of sufficient height or length to guarantee golf balls would not enter that property. He had considered the report of Mr Myers, the engineer who provided a report on behalf of the defendants, and in his view the barrier proposed would not be effective in precluding balls entering the Chapman property. This was, he said, because of the fall of the golf range to the east. He said that use of golfing irons numbered 1 and above would “almost certainly” drive balls above the proposed barrier.[67]
[66] Exhibit H
[67] T 267
55 He considered that the netting barrier proposed by Mr Myers would not be sufficiently long nor high. The barrier ought be 24 metres above the tee bays and ought to extend a further 20 metres, to 90 metres. At a lower point of the golf range, the net would be required to be at a height of 36 to 38 metres.[68] In fact, in order to stop all balls leaving the golf range into the Chapman property the barrier would need to be 40 to 50 metres high.[69]
[68] T 270
[69] T 272
56 There were aspects of the Myers’ report with which he was not familiar, although he agreed with many of the calculations.
(c) Lachlan Myers – Engineer 57 Mr Myers was retained by the defendants, and attended to give evidence and be cross-examined. His report was tendered into evidence.[70]
[70] CB 119-163
58 In substance, Mr Myers was of the view that the netting barrier proposed in his report and the other measures referred to would have the effect of substantially reducing the numbers of golf balls going into the Chapman property, and although the reduction would not be to 100 per cent, there would in fact be very few balls transgressing the barrier.[71]
[71] T 394
59 Unlike Mr Baird, Mr Myers has had specific experience in golf ball trajectory. His proposals as to the means by which numbers of golf balls could be reduced were as follows:
(i)
A reduction in the numbers of bays at the northern end to restrict those bays with lines of play more likely to encourage shots towards the Chapman property;
(ii)
By directing the line of play of the remaining bays more towards the south of the golf range by 6 to 7 degrees. This it was said, would make a significant difference to the direction of the golf balls from the bays generally;[72]
(iii)
Better management of players – Mr Myers said that less experienced or wilder players ought be limited to those bays which provided more protection. Club types could also be restricted. In addition, lower compression golf balls could be used which would produce reduced flight;[73]
(iv)
Large barrier fences should be erected. Mr Myers proposed two fences, one 15 metres high and 35 metres long, and another 18 to 20 metres high and 70 metres long. Depending upon the position of the fences, each would produce a similar result;[74]
(v)
Although not examined comprehensively, Mr Myers referred to the proposal by Robert Di Carlo to remove half of the bays to a lowered position, 3 to 4 metres below the current height of the bays.
[72] CB 129, 136
[73] CB 31
[74] CB 137
60 All of these measures, said Mr Myers, would produce a very significant reduction in the number of golf balls entering the Chapman property, particularly the erection of barrier netting. He based this opinion on model trials conducted at a golf course where golfers of varying ability struck balls using predominantly drivers, and the trajectory of those balls was mapped by radar.[75] He said the wind could play a significant role in the trajectory of golf balls, and for the purpose of his modelling, presumed a 30-kilometre per hour wind blowing from the direction most likely to cause golf balls to swing towards the Chapman property. He admitted, however,[76] that flight prediction was not an exact science.
[75] T 396
[76] T 411
61 The key element of the Myers’ proposal was the erection of the barrier fences. He conceded that such fences would not completely eliminate the ingress of golf balls into the Chapman property[77] but would reduce the numbers to a very low level. He conceded it was physically impossible to provide netting of sufficient height and length to completely eliminate the problem. When provided with the detail of the opinions of Mr Baird, he thought that the ‘Monte Carlo’ predictive modelling method used by Mr Baird was more like the roll of a dice, rather than an accurate modelling basis. His basis was specifically related to the golf shots undertaken by a range of golfers.
[77] T 394
62 I was impressed by the evidence of Mr Myers. His qualifications are extensive, and he has had specific experience in the area of golf ball trajectory. He gave his evidence with authority and made concessions which I would expect of a credible witness. I prefer his method of projection to that of Mr Baird. I accept the opinion of Mr Myers, that were all the steps he proposes taken, the likelihood would be that the number of golf balls entering the Chapman property would be very small, but that it would not be eliminated. To the extent that there is a difference of opinion between Messrs Baird and Myers, I prefer the opinion of Mr Myers.
(d) John Mansfield - Netting 63 Mr John Mansfield is a sales director of a company, David Golf and Engineering, and another company, Sport Safety Netting. He inspected the golf range and provided estimates of the costs of the barrier netting proposed by Mr Myers. The cost of the appropriate soil testing was $7000; the erection of a barrier 35-metres long and 15-metres high was $46,400.[78]
[78] T 435, CB 204-5
(e) Michael Nelthorpe – Town Planner 64 Mr Nelthorpe gave evidence about the planning requirements to erect barrier netting as proposed by Mr Myers.[79]
[79] CB 164-197
65 He had inspected the property, and application for the appropriate town planning permit was lodged on 10 June 2009.[80] He would expect the planning process to take six to eight months. Given the prospect of the barrier ameliorating the problem with golf balls, he thought that the likelihood would be that the planning permit would be granted.
[80] T 439
The Cause of Action and Defence
66 By her Statement of Claim, Denise Chapman alleges the entry of golf balls onto the Chapman property after May 2007 constitutes a nuisance. As a result, she claims to be entitled to damages, including exemplary damages and an injunction to abate the nuisance.
67 The defendants filed a Defence dated 8 July 2008.[81] Mr Wilson, in opening, set out five propositions, partly of fact and partly of law, which he said offered a complete defence. These were:
[81] CB 9-12
•
The golf range had been operating since 1997, thus ten years before the Chapman family came to occupy the adjoining land and until 2008, there had been no complaint from any surrounding resident.
•
The plaintiff purchased the Chapman property in the full knowledge of the activities which were being conducted at the golf range. It was said the attitude of Denise Chapman and her family was “super sensitive and querulous”.[82]
•
Since notification of the complaints to the Di Carlo family, significant remedial steps had been taken to abate the nuisance.
•
There was little further the Di Carlo family could do to further abate the nuisance given the nature of the sport.
•
Certain of the remedies sought by the plaintiff were inappropriate, and had no legal precedent.[83]
[82] See Anderson J in Lester-Travers v City of Frankston [1970] VR 2
[83] T 27-28
68 Further, in submission, he said:
•
On the evidence, the Court should not be satisfied as to the number of golf balls encroaching onto the Chapman property, nor that they were hit over the present barriers.
•
When considering whether there had been an unreasonable interference with the use and enjoyment of land, no person had been injured by a golf ball coming onto the property. In that sense there was no fault on the part of the defendants.
•
The actions of Denise Chapman and Mervyn Dickey have been precipitous, aggressive and uncooperative. Had a more conciliatory approach been undertaken, a different outcome may have occurred. The conduct of the parties is to be taken into account, particularly in respect of the granting or otherwise of an injunction. Further, Denise Chapman’s view that there should be total elimination of the entry of golf balls was unrealistic and unreasonable.
•
The granting of an injunction is in the discretion of the Court, and requires a balance to be undertaken between the interests of the parties. It was said that Robert Di Carlo had taken significant corrective measures, and “we’re almost prepared to do anything”.[84]
•
Given its years of operation, and the considerable capital and energy needed to establish it, when considering whether the golf range should be closed and balancing the hardship associated with this action against the interference with the use of the property by the Chapman family, should it continue to operate, the balance ought be exercised in favour of the defendants.
[84] T 313
The Authorities – Nuisance
69 Private nuisance is defined as the substantial and unreasonable interference with an occupier’s interest in the beneficial use of his or her land.[85] Such an interference includes the use of land for residential purposes and embodies the concept of pleasure, comfort and enjoyment which a person normally derives from such use of land.[86] This principle should bear in mind appropriate notions of give and take. As stated by Fleming:[87]
“The very existence of organised society depends on the principle of ‘give and take, live and let live’ so that the law of torts does not attempt to impose liability or shift the loss in every case where one person’s conduct has some detrimental effect on another.
…
The paramount problem in the law of nuisance is therefore to strike a tolerable balance between conflicting claims of neighbours, each invoking the privilege to exploit the resources and enjoy the amenities of his property without undue subordination to the reciprocal interests of the other. …
Legal intervention is warranted only when an excessive use of property causes inconvenience beyond what other occupiers in the vicinity can be expected to bear, having regard to the prevailing standard of comfort of the time and place. Reasonableness in this context is a two-sided affair. ….”
[85] Fleming – ‘The Law of Torts’ (9th ed.), pages 463-464; Oldham v Lawson (No. 1) [1976] VR 654 at 655
[86] Fleming (supra) page 465
[87] page 466
70 There are various matters to be taken into account in considering whether nuisance has been established. The first is the gravity of the harm said to be caused. The harm may consist of physical discomfort and inconvenience as well as actual damage to property or injury to health. The harm alleged must be of a substantial character, and not fleeting or evanescent.[88]
[88] Benjamin v Storr (1874) LR9CP 400, at 407, per Brett J
71 Secondly, the standard to determine the unreasonable interference is an objective one. Regard should be had to the reactions of normal persons in the particular locality, and not to delicate nor fastidious idiosyncrasies of a particular plaintiff.[89] In Lester-Travers v City of Frankston,[90] Anderson J referred to persons who were ‘hypersensitive and querulous’, waging a campaign against a defendant.
[89] Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482, at 486
[90] (supra)
72 Thirdly, the nature, longevity and utility of the defendant’s conduct should be borne in mind. In this case, clearly the defendants had established the golf range well prior to the occupation by the Chapman family of the adjoining land. However, the utility of use, said in this case to provide a pleasant pastime, involving particularly students from local schools, cannot be said to justify a nuisance unless the conduct could be said to be essential and unavoidable in the locality.[91]
[91] Munro v Southern Dairies Ltd [1955] VLR 332, at 337
73 Further, it is no defence to a nuisance to say that the plaintiff had “come to the nuisance”.[92] Mr Wilson did not contend otherwise.
[92] Munro (supra), at 337
74 Fourthly, the duty not to expose a neighbour to nuisance is not necessarily discharged by the exercise of reasonable care, or even all possible care.[93] However, the taking of reasonable and proper precautions taken by a defendant to avoid the harm is relevant as it bears upon whether the nuisance constitutes an unreasonable interference.[94] Responsibility to abate the nuisance does not fall upon a defendant until he knows, or could reasonably have been expected to know, of its existence and the hazard it causes.[95]
[93] Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264, at 300
[94] Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291
[95] Sedleigh-Denfield v O’Callaghan [1940] AC 880, at 897, 904; Premier Building & Consulting Pty Ltd v
75 Once established, an occupier is under an obligation to act with reasonable promptness and to take effective action to abate the nuisance.[96] However, the gravity of the danger and the difficulty in removing it, and any other practical restraints are matters to be taken into account.
[96] Spotless Group Ltd [2007] VSC 377, per Byrne J, at [500] Crown Diamond Paint Co Ltd v Acadia Holding Realty Ltd [1952] 2 SCR 161
76 The courts have considered nuisance in the context of properties adjoining golf courses. In Lester-Travers v City of Frankston,[97] Anderson J was concerned with the incursion of golf balls from several practice fairways of a golf course. In all, over a period of about twelve months, a total of approximately thirty-six golf balls were found to have intruded onto the plaintiff’s adjoining residential land. Some of the balls caused damage to the property, including a broken bedroom window. Evidence was given of the “glorious uncertainty” of the trajectory of golf balls and, like the present case, that less experienced players were more likely to produce unpredictable results. The defences raised by the defendant included that the plaintiff, given her proximity to the golf links, ought to tolerate the intrusion of the golf balls from time to time; that the plaintiff was seeking too high a standard of protection than the golf links was reasonably able to provide. It was said the plaintiff could take reasonable steps for her own safety by remaining indoors while golf was being played. His Honour considered none of these defences had any merit. He said that it was inconsistent with general propositions of law that the plaintiff’s rights should be subordinated to the leisurely pursuit of sportsmen. He considered the incursion of golf balls a nuisance of considerable magnitude and that the plaintiff had suffered a substantial diminution in the comfortable and healthful enjoyment of her premises. He noted that evidence of valuers suggested a significant diminution in the value of the property by reason of the golf ball hazard. There were various means by which the plaintiff’s property could be protected.[98] His Honour granted an injunction restraining persons from playing on the relevant practice fairways.
[97] (supra)
[98] at page 15-16
77 In Challen v The McLeod Country Golf Club,[99] the Queensland Court of Appeal was concerned with the incursion of golf balls upon an adjoining residential property. According to the evidence, from 1987, golf balls began to appear on the plaintiff’s land and during the 1990s caused damage, including to the roof and to windows. For twelve months to the end of 2001, 526 golf balls were collected. In 2002, rectification work was undertaken, including the provision of a golf ball barrier on the relevant boundary. This reduced the number of balls intruding onto the property. Although the case was concerned largely with damages, the Court said:[100]
“… Even two or three balls per week regularly coming onto the appellant’s property with the risk of physical harm or damage to persons or property on the appellant’s premises is a material interference with the enjoyment of the appellant of her property. …”
[99] [2004] QCA 358
[100] at paragraph 39
78 Gillard J, in Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd & Anor.,[101] considered an application for costs consequent upon the resolution by agreement of a proceeding whereby golf balls struck by golfers on a course at Cape Schanck entered onto the plaintiff’s property. In determining the application, His Honour had cause to examine the facts of the case, and the applicable legal principles. The proceeding had resolved as steps taken by the defendants to abate the nuisance had been successful. His Honour reflected,[102] that the focus of an action for private nuisance was whether the occupier of land had made unreasonable use of that land causing interference to a neighbouring property. The factors to be considered included the degree of interference with the use and enjoyment of the land, the locality of the land, time and duration and the normal and ordinary use of the land. His Honour noted that it was no defence to an action for nuisance that the plaintiff had come willingly to occupy the property knowing there was a nuisance, or a potential for the nuisance. While it was not clear from the judgment precisely the number of golf balls which had intruded into the adjoining land before rectification works, His Honour noted the probabilities were high that the plaintiff would have proved that the activity did constitute a nuisance. Having reviewed the authorities, he formed the view that it was likely the plaintiff would have succeeded in obtaining an injunction, and thus awarded costs to it.
[101] [2000] VSC 214
[102] at paragraph 68
79 Finally, in Pringle v Ryde-Parramatta Golf Club Ltd,[103] a number of residential houses adjoining a fairway were subjected to golf balls coming into their premises. All of the plaintiffs had come to the nuisance.
[103] NSWSC (23 February 1978) BC7800156, per Helsham J
80 The balls damaged the properties, including broken windows and doors and what was said to be “the general inconvenience and annoyance of a continual barrage of golf balls from the adjoining golf course”. A number of steps were taken to try to remedy the problem, including the erection of large screens which caused a significant improvement. After the remedial steps were taken, over a period of eight months, one householder gave evidence that twenty- four golf balls had entered his property, another suffered twenty-one balls, and the third, five balls. On one occasion a child was struck by one of the golf balls. Notwithstanding the steps taken, the Court found that there was a real danger from straying golf balls and that it was appropriate that an injunction be issued to restrain the use of the offending fairway over its whole length until further remedial work was carried out. His Honour commented:
“In my view persons living beside a golf course must expect to have some balls into their property. It may be that a situation is reached when the incidence of this will not be a nuisance, but prima facie balls coming from a golf course into adjoining premises and so interfering with the enjoyment of those adjoining premises must be regarded as a nuisance, and I am not satisfied in the present case that the screens, both as presently sited and the new screen, will reduce the number of balls coming into the plaintiffs' properties to such an extent that it could not be said to be a nuisance. … The incidence of balls could be stopped completely. It could be stopped completely by non-use of the fairway to the point at which the tee is now situated and, that being so, I find that there is the likelihood of sufficient regularity of balls coming on to the properties of the plaintiffs and the interference with the enjoyment of their property by those balls to be such as to be likely to constitute a nuisance, and I therefore hold that the plaintiffs have made out a case that established that there is a nuisance.”
81 In this case it was noted that all of the plaintiffs had come to the nuisance.
Conclusions as to Nuisance
82 I found Denise Chapman an impressive and honest witness. I accept her evidence and that of other witnesses as to the number of golf balls coming onto her property. The fact that only a small proportion of the balls were actually seen by the witnesses in flight does not lead to the conclusion that the balls picked up on the property came from somewhere other than the golf range. I am satisfied that the ingress of these balls from the golf range constitutes an unreasonable and substantial interference with the plaintiff’s enjoyment of her five-acre residential allotment.
83 The numbers of golf balls are very substantial. Over the two-year period from May 2007, and even allowing some of the balls may have been on the property before that time, and some may have come from an adjoining property or under the fence, I accept that something in the order of 20,000 golf balls have been struck into the Chapman property. It is true that no damage to personal property has yet been caused, but I regard this as a matter of good fortune rather than anything else. I can well appreciate the plaintiff’s reasonably stated apprehension for herself, her family and friends of going outside during daylight hours for fear of being struck by a golf ball. The property was purchased because of the semi-rural amenity of the area. As a result, the Chapmans ought to be entitled to take in the surrounding landscape without interference, participate in activities around the property, or simply stand outside and enjoy the view. All of these pursuits are placed in significant jeopardy because of the balls struck into the property from the golf range.
84 A golf ball, even on a downward trajectory, has the capacity to cause significant injury. On several occasions, Denise Chapman’s family and friends have had ‘near misses’, on one occasion a ball narrowly missing a person’s head. Denise Chapman’s concern as to the health and wellbeing of those upon her property is well-founded.
85 It is true that she and her family “came to” the nuisance. However, there was nothing to indicate that the golf balls would come into the property in the numbers which have occurred. I accept there were no balls in the area that could easily be seen upon an inspection of the property prior to purchase. There was no basis for Denise Chapman to appreciate even the potential for the intrusion of golf balls which subsequently transpired. In any event, it is clear from the authorities that the fact that the land owner came to the nuisance, or was even aware of a potential for nuisance, is no defence.[104]
[104] Champagne View v Shearwater Resort Management Pty Ltd & Anor. (supra), at paragraph 73
86 There was debate in the course of the proceeding as to when the nuisance was first brought to the attention of the defendants. I accept Denise Chapman’s evidence that she made several telephone calls to ‘Jake’, an employee of the range, in or about July 2007. However, the matter did not come to a head until the meeting of March 2008, which is when Robert Di Carlo claims that he first was aware of the intrusion of golf balls into the Chapman property, and the concerns of the Chapman family in relation thereto. Whichever date is accepted as the date upon which the defendants had notice, thereafter a number of remedial steps were taken in an attempt to abate the problem. All of the actions taken were reasonable in the circumstances, but given the incursion of golf balls into the Chapman property beyond the date of the remedial steps, in fact up to the date of the trial, there has not been any reduction of the incursion of golf balls to a point where the numbers could be said to be reasonable. Even accepting the steps taken did produce some reduction, the plaintiff and her family still face the prospect of hundreds of golf balls coming over the fence on a regular basis. Whatever view is taken of the reasonableness of the remedial steps, the simple fact is that they have not worked.
87 I accept the principles established by various authorities that there is a balancing act in determining whether a nuisance has been created by the use of land. I bear in mind that the golf range was in existence before the Chapmans took occupation and that the establishment of the range was a very considerable financial investment for the Di Carlo family. I further bear in mind that the use of the golf range has provided a significant public utility, particularly to local schools. I further accept that the meeting of March 2008 was somewhat of a confrontation to Robert Di Carlo and his family and could probably, in retrospect, have been handled in a more conciliatory manner. However, these matters are all substantially outweighed by the very serious interference to the Chapman family in the use of their land. I have little doubt concluding that the existence of the golf range and the activities conducted thereon constitute a nuisance.
88 I do not accept the various matters raised by the defendants constitute any proper defence to the nuisance.
Damages
89 The plaintiff alleges this is a case appropriate for exemplary damages. The basis of this is what is said to be high handed conduct of the defendants in their disregard for the plaintiff’s rights. Further, a letter by the defendants’ solicitors to the plaintiff’s solicitors of 22 June 2009,[105] claiming a return of the golf balls hit into the Chapman property constitutes a basis for exemplary damages.
[105] Exhibit C
90 I am not satisfied this is a case appropriate for the award of exemplary damages. I do not consider the conduct of the defendants to be high handed. Generally, exemplary damages are awarded where there is a deliberate, intentional or reckless disregard for the plaintiff’s interests.[106] I accept the conduct of the defendants as being reasonable, albeit not sufficient to result in an abatement of the nuisance.
[106] Luntz - ‘Assessment of Damages for Personal Injury and Death’ (4th ed.) page 71. See further Oldham v Lawson (No.1) (supra), at page 658-9
91 The plaintiff seeks general damages totalling $53,316.00, made up as follows:
• $35,816.00 – inability to use the land – 50 per cent of attributable rental value • $7,500.00 labour collecting golf balls at $30.00 per hour • $10,000.00 – inconvenience, anxiety, fear and distress. 92 Damages in nuisance may be awarded where there is a substantial interference with comfort, convenience and other sensibilities and without the need for proof of specific material injury.[107]
[107] Fleming – ‘The Law of Torts’ at page 493
93 I do not accept the claim for inability to use the land, assessed as 50 per cent of the yearly rental value. There is no authority, so far as I am aware, to support such a head of damage although damages can be awarded for economic loss, including loss of commercial profit.[108] Even if those damages could be justified in law, I am not satisfied that the evidence properly supports the extent to which Denise Chapman and her family were unable to use 50 per cent of the land, even accepting the rental value assessed by Mr Ongarello.
[108] Fleming – page 493
94 Further, I am not satisfied there should be damages awarded for the labour cost involved in the collection of golf balls, which I accept as being considerable, given the number of balls collected. Again, there is no authority on the point. In my view, the collection of golf balls by Denise Chapman does fall as a matter to be taken into account in assessing general damages as constituting an interference with the comfort and convenient use of the Chapman property.
95 It is difficult to calculate with precision damages to be awarded for nuisance. Generally speaking awards for damages for nuisance are modest.[109] In assessing the appropriate amount of damages, I bear in mind that the plaintiff has not sought medical treatment from any practitioner and in fact stated that she did not believe she was suffering from anxiety.[110] Notwithstanding, she was asked the following:[111]
[109] Challen v The McLeod Country Golf Club (supra), at paragraph 43
[110] T 151
[111] T 62
“Q: What has it meant to you to have these golf balls entering into
your property?---A: Firstly, there’s the risk of (sic) my family or visitors being struck, that’s really foremost. I remember one day thinking I don’t really feel safe if I’m on this, you know, particularly out in the paddock, because of the potential of being struck, so that’s definitely the first consideration and the weightiest one, and then the thought occurred if somebody’s car was struck or dinted or the windscreen smashed, who would pay for that? Would I be responsible to pay for my neighbours, for my friends that came?”
96 In addition, I accept Denise Chapman as being unable to use her land in the manner for which she purchased it and that this has caused discomfort and inconvenience.
97 In all of these circumstances, I assess general damages at $15,000.00.
Injunctive Relief
98 Having now determined the existence of the nuisance, and awarded damages, the plaintiff further seeks an injunction –
“enjoining the defendants, their servants and agents howsoever from using the golf driving range insofar as such use permits the entry of golf balls onto the plaintiff’s property, so as to cause a nuisance”.[112]
[112] Plaintiff’s Submissions – paragraph 88, T 517
99 Mr Horgan did not seek an injunction to close the golf range.[113]
[113] T 518.23
100 Mr Wilson submitted that this was not an appropriate case for the imposition of an injunction. In support, he said:
(a) the fact of the plaintiff coming to the nuisance, or a reasonable apprehension of it, while not offering a defence, was a matter to be taken into account in the exercise of the Court’s discretion; (b) Denise Chapman is and has been the only neighbour to complain of the nuisance. There has been no complaint from the Browns, nor Jack; (c) There had been no injury to any person, nor damage to any property caused as a result of the nuisance; (d) The meeting of March 2008, the strict time lines set (and then not adhered to) in various of the legal correspondence emanating from the plaintiff’s solicitors and Mervyn Dickey, and the issue of the proceedings shortly thereafter all point to a bullish, even aggressive approach unlikely to bring about a conciliated resolution of the dispute between neighbours. A more appropriate manner to approach such a dispute was through moderate discussion, rather than the use of the blunt instrument of the law; (e) the attitude of Mervyn Dickey and Denise Chapman that the ingress of golf balls onto the Chapman property had to be totally eliminated, was unreasonable. 101 Further, Mr Wilson said that if the Court was minded to impose an injunction, the terms sought were too wide and would invite debate and uncertainty as to what constituted a nuisance. Such an order would invite inquiry about whether compliance was met, with the consequential risk to the defendants of contempt.[114]
[114] T 520
102 In general, the principles of equity provide for injunctive relief, particularly in circumstances where the award of damages would not, or would only partly provide adequate remedy. The conduct of the parties is relevant in the exercise of the Court’s discretion.
103 As previously stated, I was impressed by the evidence of Mr Myers and to the various proposals set forth in his report which, in his expert opinion, were likely to have the effect of reducing to very modest numbers, although not eliminating completely, the number of golf balls entering the Chapman property. I note to give effect to the Myers’ proposals, the defendants will be required to expend a significant amount of money. In Lester-Travers,[115] Anderson J said:
“… As to the injunction, I think that the defendant should be restrained from permitting persons playing golf on the seventh and eighth holes and the practice fairway from hitting balls into the plaintiff's property. Whether such action involves prohibiting the playing of golf on these parts of the course, or erecting adequate screens or taking some other effective steps to prevent this nuisance complained of, is for the defendant to determine, provided that its efforts produce the result which an injunction would be designed to effect. An injunction appropriately restraining the defendant, though negative in form, would require the defendant to take positive action. I am prepared to hear counsel for both parties as to the terms in which the injunction should be expressed. However, I do not consider that the Court should be required to prescribe the safeguards which would be regarded sufficient to comply with an injunction. It is for the defendant to comply with the order of the Court by doing what is adequate.”[116]
[115] Lester-Travers v City of Frankston (supra), at page 16
[116] See further Munro v Southern Dairies Ltd (supra), at page 337-8; Pringle v Ryde-Parramatta Golf Club Ltd (supra)
104 I conclude it is thus not appropriate for the Court to determine what steps the defendants ought to take in the future in order to prevent the occurrence of the nuisance. That is a matter for the defendants.
105 Having considered the numbers of golf balls entering the Chapman property and the concern reasonably expressed by Denise Chapman for the welfare of herself and her family, I am of the view that it is appropriate for the Court to impose an injunction in the terms sought. I have borne in mind the matters raised on behalf of the defendants, particularly the conduct of Denise Chapman and Mervyn Dickey. I further bear in mind that the defendants have expended a very significant amount of money in establishing the golf range and the enforced termination of the activities conducted at the range would have a detrimental financial effect upon the family. I further note the evidence of Robert Di Carlo that he faces the prospect of action by the person to whom he has leased the restaurant.[117]
[117] T 343
106 Bearing in mind all these matters and the balance necessarily exercised by a court in imposing an injunction as sought, I am of the view that this is a case appropriate for an injunction.
Conclusion
107 In my view the activities upon the golf range resulting in patrons striking golf balls into the Chapman property over the period from May 2007 does constitute a nuisance.
108 In my view it is appropriate to award to Denise Chapman the sum of $15,000.00 by way of general damages for the inconvenience, discomfort, apprehension and concern, and to some extent the need to collect the golf balls.
109 Further, I propose to order that the defendants, their servants and agents be enjoined from using the golf range insofar as such use permits the entry of golf balls onto the plaintiff’s property, so as to cause a nuisance. Before pronouncing any final orders, I shall seek submissions of counsel as to the precise terms of the injunction.
110 I would mention one further matter. It is alleged that the actions, particularly of Mervyn Dickey, were aggressive, bullish and precipitous. I am not called upon to make a specific finding in that regard, but it does appear to me that a more conciliatory approach may have had the prospect of resolving the differences between the parties at less cost, and with the likely preservation of harmony within the neighbourhood. While the remedial steps taken by the defendants were not sufficient to abate the nuisance, I did assess Robert Di Carlo as a person prepared to listen to complaints, and to take reasonable steps to satisfy the concerns of the Chapman family.
111 In the event there is further debate between the parties as to whether the nuisance has been abated and whether any steps to be taken by the defendants are adequate, then active discussion in a frank and conciliatory manner is more likely to bring about a long lasting and harmonious result, than recourse to the Courts.
112 I shall hear from the parties further as to the specific terms of the injunction, and as to costs.
- - -
0
3
0