Co-operative Estates Limited v Wilkinson - [1919] HCA 39

THE CO-OPERATIVE ESTATES LIMITED WILKINSON

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Nuisance-Injury caused by quarry-Acquiescence-Injunction-Damages

In an action by the plaintiff, the owner of a house and land, against the defendant, from whom he had bought the land, claiming an injunction respect of a nuisance caused by the working by the defendant of a quarry on adjoining land belonging to the defendant,

Held, on the evidence, that the plaintiff had not acquiesced in the nuisance so as to disentitle him to an injunction, and that an injunction was properly granted.

Decision of the Supreme Court of Tasmania (Crisp J.) affirmed.

26 CLR 378

APPEAL from the Supreme Court of Tasmania.

An action was brought in the Supreme Court by Thomas Washing ton Wilkinson against the Co-operative Estates Ltd.. wherein the plaintiff by his declaration alleged that on land adjoining a block on which the plaintiff lived the defendant opened, managed, used WILKINSON. and worked a stone quarry in such a way as to cause stones and

dirt to be thrown on the plaintiff's land, to foul the air with dust, smoke and gases, and to cause undue and excessive vibration and noise; the plaintiff also alleged negligence in the carrying on of the quarry: and he claimed £500 damages and an injunction. The action was heard by Crisp J.

It appeared that some time prior to 1917 the defendant acquired a considerable area of land in a residential area which it cut up into building allotments and offered for sale. In April 1917 the plain- tiff was negotiating for the purchase of one of the allotments, which he subsequently bought, and on which he built a house. On an adjoining block of land belonging to the defendant there was a quarry. The learned Judge found that in April 1917, when the negotiations for purchase were going on, the plaintiff knew of the existence of the quarry but was assured by the defendant that it would be worked very little, if at all. The building of the plaintiff's house began in June 1917, and he went into occupation of it in January 1918, and thereafter lived in it. The learned Judge also found that during part of the time from June 1917 until June 1918 operations were carried on at the quarry, though not continuously that in the latter month the defendant began to open up the quarry more, making a large excavation for bins and installing an electric motor, and that from that time onwards the work was more continuous and on a larger scale; that the plaintiff rendered assistance in obtaining electric power and in getting certain poles for use in the quarry; that from June 1918 onwards the plaintiff frequently complained to the defendant's foreman about the annoyance caused to him by the work at the quarry, but that he never formally com- plained to the defendant until 13th September 1918, the writ being issued on 9th October 1918, The learned Judge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1919] HCA 39
Decision Date: 5 August 1919

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Tasmania concerning a dispute between Co-operative Estates Limited (the appellant and defendant) and Thomas Washington Wilkinson (the respondent and plaintiff). The plaintiff, who had purchased land from the defendant and built a house on it, claimed that the defendant's operation of a quarry on adjoining land caused a nuisance. The nuisance alleged included stones and dirt being thrown onto the plaintiff's property, air pollution from dust, smoke, and gases, and excessive vibration and noise, as well as negligence in the quarry's operation. The plaintiff sought damages and an injunction.

The legal issues before the High Court were whether the plaintiff had acquiesced in the nuisance to the extent that he was disentitled to an injunction, and whether an injunction was the appropriate remedy given the circumstances, including the potential hardship to the defendant and the extent of the injury suffered by the plaintiff. The defendant argued that any injury could be compensated by damages and that the case should be remitted for assessment of damages, contending that the plaintiff's actions constituted sufficient acquiescence.

The High Court affirmed the decision of the Supreme Court of Tasmania, finding no reason to disturb the judgment of Crisp J. Crisp J. had found that while the plaintiff was aware of the quarry's existence when purchasing the land, he had been assured it would be worked minimally. He also found that the plaintiff had complained about the nuisance from June 1918 onwards and had not acquiesced in it. Furthermore, Crisp J. had found the quarry was operated negligently and constituted a nuisance, leading to a judgment for the plaintiff for £50 and the grant of an injunction. The High Court dismissed the appeal with costs.

Orders