Dejanovic v Sheppard
[2025] VSC 588
•18 September 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2023 02188
| DANIEL JOSEPH DEJANOVIC | Plaintiff |
| v | |
| SUZANNE LOUISE SHEPPARD | Defendant |
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JUDGE: | K Judd J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2, 5-6, 10-13 & 19 June 2025 |
DATE OF JUDGMENT: | 18 September 2025 |
CASE MAY BE CITED AS: | Dejanovic v Sheppard |
MEDIUM NEUTRAL CITATION: | [2025] VSC 588 |
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TORTS – Nuisance – Continuous unreasonable noise by neighbour – Whether substantial and unreasonable interference with landlord’s use and enjoyment of land – Entitlement of neighbour to commit nuisance to obtain redress – Reversioner’s interest – Whether damage to reversion – Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145 – Jeffrey v Honig [1999] VSC 337 – Ehmler & Anor v Hall [1993] 1 EGLR 137 – Irontrain Investments Ltd v Ansari (Salim) [2005] EWCA Civ 1681 – Bell v The Midland Railway Co (1861) 10 CB (NS) 287; 142 ER 462.
INJUNCTION – Whether appropriate – Terms of injunction.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | T Allen | Best Hooper Lawyers |
| For the Defendant | Appeared in person |
TABLE OF CONTENTS
Overview.............................................................................................................................................. 1
Evidence............................................................................................................................................... 2
Wetherell tenancy.............................................................................................................................. 3
Thorwesten and Paul tenancy......................................................................................................... 5
Tobin and De Luca tenancy............................................................................................................. 6
Caretakers............................................................................................................................................ 8
Attempts to retain tenants.............................................................................................................. 10
Defendant’s evidence...................................................................................................................... 11
Relevant legal principles................................................................................................................ 13
Whether continuing nuisance........................................................................................................ 18
Whether defendant justified in committing nuisance............................................................. 20
Damages in the nature of lost rent................................................................................................ 20
Plaintiff’s interest as reversioner.................................................................................................. 22
Other claimed loss and damage.................................................................................................... 24
Exemplary damages......................................................................................................................... 24
Injunctive relief................................................................................................................................ 25
Harassment........................................................................................................................................ 25
Negligence......................................................................................................................................... 26
Disposition........................................................................................................................................ 26
HER HONOUR:
Overview
In this proceeding the plaintiff alleges that the defendant has committed the tort of private nuisance.
The plaintiff owns premises in Toorak. The premises were purchased by him in August 2020 for use as an investment or rental property (investment property). Since purchasing the investment property the plaintiff has leased it to three sets of tenants:
(a) Drs David and Lima Wetherell (and their one-year old son), who resided in the investment property between 29 October 2020 and 30 April 2021;
(b) Mr Thorwesten, Ms Paul (and their two children), who resided in the investment property between 14 May 2021 and 26 August 2021; and
(c) Mr Tobin and Ms De Luca (and their children), who resided in the investment property between 8 October 2021 and 9 October 2023.
9 October 2023 was the last occasion in which tenants resided at the investment property. Since that date, the plaintiff has been in possession of the property and has sought to protect and maintain his property through the engagement of caretakers.
The defendant owns and occupies premises next door. There is a party wall between the investment property and the defendant’s property.
The plaintiff alleges, for the duration of the time that the plaintiff has leased the investment property to tenants and at other times during which the plaintiff has had caretakers looking after the property, that the defendant has made loud noise in the nature of:
(a) banging on or near the party wall during the night;
(b) shouting or screaming; and
(c) playing loud music from a radio or television.
The plaintiff alleges the noise is unreasonable, of a continuing nature and constitutes a substantial and unreasonable interference with his use and enjoyment of the investment property, such as to give rise to a claim in nuisance. The plaintiff also makes allegations as to the defendant having harassed his tenants. The plaintiff claims that he has suffered loss of rent and other expenses and that his investment property now sits vacant as a result of the defendant’s actions. The plaintiff seeks damages, exemplary damages and a permanent injunction to restrain the defendant from continuing the noise and harassment. The plaintiff also makes a claim in negligence.
For the most part, the defendant admits making the alleged noise. However, she says she was entitled to make the noise due to her own concerns about noise being emitted by the operation of air-conditioning and heating units at the investment property. She says that she regularly banged on the internal party wall to get the plaintiff’s tenants to turn off these units. She says that she regularly shouted and raised her voice for the same reason. And she says that she played music at an unreasonable volume to block out the noise.
Evidence
The evidence in this case was largely uncontested. The plaintiff gave evidence on his own behalf and called his wife, Ms Davies, a number of his tenants and caretakers, an expert witness, Mr Ferrier, and Ms Fitzgerald from Kay & Burton.
A number of audio recordings of the various noises made by the defendant were tendered by the plaintiff. These recordings were clear with respect to the type of noise that was being made, but could not be relied on to determine the volume of noise.
The defendant gave evidence and called her friend, Ms Estlin, as well as Ms Foscolos from the City of Stonnington. The defendant also sought to rely on a number of audio recordings, although it was impossible to determine what was in fact being recorded by the defendant at the time those audio recordings were made.
After the evidence closed, the defendant sought to re-open the case and to tender further evidence. Given the defendant appeared in person, I am prepared to accept into evidence a photograph and material relevant to certain matters put to Mr McCurley, and some evidence relating to her financial position. The plaintiff had no objection to this course.
However, the defendant’s request to adduce further evidence to contradict the plaintiff’s assertion that he had no interest in purchasing her property must be declined. The defendant submitted that the plaintiff had given evidence that ‘he was never interested in purchasing [the defendant’s] property.’ However she ‘[knew] for a fact that the plaintiff was indeed a keen purchaser of [the defendant’s property].’ The defendant submitted that her proposed further evidence would not only establish that the plaintiff was a keen purchaser, but that it would establish that the plaintiff was behaving in a manner designed to force her out of her home and sell it to him, and thereby provide a basis for dismissing the proceeding.
I do not accept this submission. The proposed evidence is irrelevant to the issues that I need to determine and does not have any bearing on the credit of the plaintiff. Even if the plaintiff had no desire to purchase the defendant’s property at the time he purchased the investment property, that would not preclude a change of heart at a later point in time. The evidence has closed and there is nothing in the nature of the proposed evidence or the circumstances of the case which would justify the Court granting leave to the defendant to adduce further evidence.
Similarly, the defendant’s request to adduce further evidence in the form of additional audio visual recordings must be refused, as must her application for me to include additions to her own evidence as set out in email correspondence after judgment had been reserved.
Wetherell tenancy
The plaintiff’s first set of tenants both gave evidence that, not long after moving into the investment property, they experienced issues with the defendant in the nature of a significant noise disturbance.
Dr David Wetherell said:
…it was a few different types, most commonly it would be banging on a joint wall, a metallic banging, the other being music or radio played through the windows and the other would be shouting or yelling.
In respect of the metallic banging noise, it came from the shared wall at the house. Dr Lima Wetherell thought it sounded as if the defendant was banging on pipes on the walls and said that it could be easily heard even with ear plugs in. Both David and Lima Wetherell described the noise as loud and audible from their own bedroom and other bedrooms and rooms in the house. It mainly occurred during the middle of the night, between the hours of midnight and 4.00 or 5.00am, and would continue for up to 15 to 20 minutes at a time. Lima Wetherell said that the banging noise would often occur for 10 hours; all night long. Both of the Wetherells said that the banging caused sleep deprivation to themselves and their baby and it resulted in stress and discomfort. At the start of the tenancy it was a weekly occurrence, but towards the end of the tenancy it occurred almost every night. The Wetherells made constant requests for the defendant to stop, without avail.
In respect of the music, the noise came from an open window on the first floor of the defendant’s premises. It appeared to be noise from a radio station because, in addition to the music, there were advertisements. David Wetherell said this noise was less frequent than the banging noise, but it still occurred one or two times a week, most often in the day time. It was very loud, at a volume you could hear inside the investment property with the doors and windows shut, and at a volume which would be considered normal for a party. Lima Wetherell said that the loud music from the radio would be played for the whole day.
In respect of the shouting, the defendant would shout from her side of the fence, demanding that the Wetherells turn off their heating or air-conditioning unit. David Wetherell said the shouting occurred mostly in the day time, one or two times a week, and continued throughout the whole of their tenancy. Lima Wetherell said that the pattern of yelling changed over time. It would happen any time between 9.00am and 10.00pm. Eventually the defendant would yell every day. The shouting left the Wetherells feeling harassed, distressed and anxious.
Lima Wetherell also gave evidence of the defendant coming to their front door, ringing their doorbell and leaving notes for them.
The Wetherells terminated their tenancy early because ‘the noise disruption was too much and too disruptive.’ Both of them are surgeons and needed sleep to perform their job properly. They also wanted a quiet environment, particularly overnight, so that their baby could sleep.
The Wetherells said they could not reason with the defendant. They also said their assurances that they were not using the air-conditioning units or heating units were not accepted by the defendant. The police were not able to assist and the real estate agent was unable to de-escalate and manage the situation. Finally, they ran out of ideas.
Under cross-examination, the Wetherells accepted that they were aware the defendant did not want them to use their air-conditioning and heating units, but they said they used the air-conditioning infrequently and predominantly during daylight hours. They had a small portable heater in their baby’s room. For their own bedroom, they preferred not to use a heater or air-conditioner at night. They stated that the metallic banging occurred overnight even when the air-conditioning and heating units were not in use. The shouting occurred more frequently when the air-conditioning was running, but there were times when the shouting occurred even when no air-conditioning or heating unit was running.
Thorwesten and Paul tenancy
The plaintiff’s second set of tenants had a similar experience when renting the investment property. They said that they had to endure nightly sessions of banging for almost four months. It commenced within the first week of moving in and occurred anywhere up to five times a night, almost every night.
Ms Paul said there were two types of nocturnal sounds, one being an echoing bang of ‘metal on metal,’ the other being a terrible scraping sound ‘like a shovel being pulled across a grate of some sort.’ Mr Thorwesten described it as the sound of either a ‘baton on steel’ or ‘steel on steel.’ He could hear that the sound and vibration was coming from the party wall. On one night he went over to the defendant’s premises to ask her to stop making the noise and he observed the defendant banging a metal urn with ‘some sort of baton.’
Ms Paul and Mr Thorwesten said that there were no heating or air-conditioning units operating at the time the banging occurred. Given the time of year, Ms Paul and Mr Thorwesten did not use the heating system and they only used the air-conditioning in the day time. They accepted in cross-examination that, perhaps, once or twice, the units may have been left on accidentally at night. But essentially, they rejected propositions put by the defendant that they were running the units overnight.
Ms Paul also described a sound throughout the day and night, similar to a television being played at the highest volume it could be. Mr Thorwesten thought the noise was coming from a radio. However, this sound only occurred the first week that they were there.
Ms Paul and Mr Thorwesten agreed to seek an intervention order against the defendant, with the plaintiff paying the legal costs in that regard. The intervention order did not lead to the defendant changing her nocturnal habits. Ms Paul and Mr Thorwesten vacated early as a result of the banging, which caused sleep deprivation, anxiety, depression and headaches.
Tobin and De Luca tenancy
Mr Tobin and his family were the third set of tenants. Mr Tobin said that the defendant’s conduct took its toll on himself, Ms De Luca and their children, causing sleep deprivation and wearing them down. He said that the defendant commenced by banging on the walls during the night. That escalated into the defendant screaming, slamming doors, slamming windows and then leaving her radio on at a considerable level.
The banging started within a couple of days of moving in. It occurred from about 11.00pm until 7.00am and was audible enough to wake all of them up each night. On one occasion whilst the banging was occurring he walked over to the defendant’s premises and observed how she was making the noise. He said:
…out of the corner of my eye I saw Ms Sheppard standing over, say, 5 or 6 metres away, against a sort of - in a corner of her property with something which appeared to be like what I'd call a 4 by 2, a plank of wood, almost like a cricket bat type shape, and banging it against what appeared to be one of those oil radiators, and just going thump thump thump thump thump.
As for the screaming, it occurred more often than not every day. It was generally directed from either the defendant’s second story window or from the back of the defendant’s premises at ground level, with her door and window open. Mr Tobin said that it was ‘very audible from inside our property with all our doors and windows closed’. The defendant would use terms and expressions such as ‘turn it off, turn it off, that noise, it's hurting my ears, it's filling my house, turn it off you nasty horrible people, you cruel - you coward’.
As to the use of the radio, it started after about 6-8 months. Initially, the radio was played at a significant volume and was loud enough to be audible through the investment property’s bedroom walls at night. Mr Tobin said that if they opened windows during the day, the radio would be ‘blaring at you’. The use of the radio eventually became a daytime activity rather than something that occurred overnight.
There was no correlation between the banging and their own use of an air-conditioner or heater. Indeed the banging occurred more often than not when they were not using a heater or air-conditioner.
At some point during the tenancy, the plaintiff organised for contractors to move the air-conditioner and heater further away from the defendant’s property. Even with this done, there was no change in the nature of the defendant’s behaviour.
Mr Tobin said that a number of methods were utilised in an attempt to stop the defendant’s behaviour, including reporting the issues to the estate agents, obtaining intervention orders and calling the police. Nothing really worked. Eventually there was no option but to vacate the investment property.
Most of the defendant’s cross-examination of Mr Tobin was directed to the use of his heating and air-conditioning units. Mr Tobin accepted that he was aware that the defendant had a concern regarding the operation of the air-conditioning and heating units. He accepted that, from time to time, air-conditioning or heating units operated overnight, but not to the extent that the defendant suggested. A number of recordings made by the defendant were played to Mr Tobin. Mr Tobin said that the noise played to him in court was not consistent with the noise made by the heating and cooling units at the investment property.
Caretakers
After Mr Tobin and Ms De Luca vacated the investment property, the managing estate agents told the plaintiff that they would not manage the investment property for as long as the defendant was in occupation of the property next door. The plaintiff and his wife, Ms Davies, had themselves also come to the conclusion that it was not possible to re-let the investment property whilst the defendant lived next door. Instead, the plaintiff looked for caretakers to occupy the investment property from time to time, for the purposes of maintaining it and discouraging squatters and theft. The plaintiff described the caretaker arrangement in the following way:
There's no rent. I pay all the costs. There's no formal agreement. … I … have unfettered access to the property as and when I'd like, and/or people that need to go in, … and it can effectively end at any point in time.
The first caretaker was Ms Pauline Libes. Ms Libes resided at the property with a number of friends from 29 November 2023 to 9 April 2024. Ms Libes said that the defendant was annoying and scary. At times, often in the very early hours of the morning, the defendant would bang on the party wall, with something like a hammer. She would also make a scratching noise. These noises were made when the air-conditioning and heating units were not running. If Ms Libes ever put the air-conditioning or heating on or played music, the defendant would bang on the front door of the investment property and scream ‘turn it off’, such that Ms Libes became too scared to use these units.
The defendant cross-examined Ms Libes, suggesting that the sounds on the party wall were caused by the defendant sweeping the edges of the carpet with a broom and thereby knocking on the skirting board. Ms Libes answered that she did not know the cause of the noise, but said that it sounded to her like something on the wall. The defendant also suggested to Ms Libes that the defendant never used language in the nature of swear words when she was yelling. Ms Libes agreed that it was rare that the defendant swore. The following questions were put by the defendant and answered by Ms Libes:
So there was [sic] only a few occasions where my yelling and my banging on the door, which I did do a few times - I didn't do many - I didn't make your life misery a lot of the time is what I'm trying to say. Only occasionally?---When the split system was on, so I just could not use it.
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It was only when the split system was on that there were problems with me. I created a noise when the split system was on?---Um most of the time.
Right?---But not only.
After Ms Libes left, the plaintiff organised for Mr McCurley to act as a caretaker. Mr McCurley resided at the investment property on a part-time basis between July 2024 and February 2025. Otherwise he resided at his home in Blackburn North with his wife. Mr McCurley said that he was asked to reside in the investment property given his background in operational and tactical policing, and his ability to handle customer aggression. At the time he had two jobs, one in emergency management and one as a door person at a club. His main concern with the defendant was her screaming and pressing the doorbell over and over again. He also spoke of a ‘heavy, thudding, banging noise’ coming from a common wall which he assumed was ‘a cupboard or cabinet, tallboy, being struck against the wall’. Mr McCurley also complained of bells ringing from the defendant’s property and her dogs barking continuously.
The defendant cross-examined Mr McCurley suggesting that he engaged in aggressive conduct towards her; that he left the heating unit running the entire week, day and night, including when he was not residing at the property; and that he played very loud music at the property. Mr McCurley in large part denied the puttage, but he was evasive with his answers. For example he would respond to the defendant’s questions with lines like ‘[i]f the heater ran over a day or so extra, then it ran over a day or so extra’. Mr McCurley also denied puttage to the effect that the defendant did not bang on the party wall at all whilst he was in residence. The defendant suggested that Mr McCurley was recording her and she showed him a photograph which she suggested depicted recording equipment. Again, Mr McCurley denied this puttage.
Attempts to retain tenants
Evidence was given by the plaintiff and his wife, Ms Davies, as to steps taken in an attempt to retain tenants. These steps included providing rent reductions, paying legal expenses for intervention orders, and investigating the legitimacy of the defendant’s complaints about air-conditioning noise.
They said that they made their own inquiries at various times in an attempt to ascertain whether there was any validity to the defendant’s assertions about noise. The steps they took demonstrated to them that the claims by the defendant were unfounded. Notwithstanding this, and following communication from the City of Stonnington, work was undertaken in an attempt to pacify the defendant. In November 2021, the heating and air-conditioning units were relocated to a position further away from the defendant’s property.
Under cross-examination, the plaintiff and Ms Davies agreed that they knew the defendant wanted the air-conditioning units removed. They disagreed with propositions put by the defendant as to the effect of various communications from the City of Stonnington.
Ms Fitzgerald gave evidence as to her role as a property manager at Kay & Burton and as to the rental income received in respect of the investment property. She said that the behaviour of the defendant meant that the investment property could not be re-let once the third set of tenants moved out.
Mr Ferrier gave expert evidence, including as to the rent that the plaintiff would have been able to charge by renting out the investment property following the vacation of Tobin and De Luca as tenants on 9 October 2023.
Defendant’s evidence
For her own part, the defendant gave evidence of being disturbed by the heating and air-conditioning units at the investment property and of wanting the plaintiff to remove them. She said she found it difficult to sleep in her own home.
The defendant called her friend Ms Estlin who confirmed that the defendant stayed with her ‘during COVID.’ Ms Estlin gave evidence of occasions, including an occasion in 2024, when she attended the defendant’s property to observe ‘shuddering’. Ms Estlin said she would describe it as a vibration that goes through your body; it feels like motion sickness; it’s a whirring that goes in and out. She said:
…I've felt it before, not just in your place, but that was particularly strong that night, it was a Sunday night, I think, that you called me over and you were just white, you were pale, and that's when I said, “You can't stay here”, it was just awful. So I have since gone back and felt the vibrations as well. I haven't really heard anything but it was more than just vibrations and ringing in my ears, that was really intense.
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… there was a very low noise like a low frequency but it was more the vibration was very, very intense.
The defendant accepted the noise allegations made against her in respect of the tenants. However, she denied that she made the noise or acted in the manner that Mr McCurley suggested. She also gave evidence of Mr McCurley running the air-conditioning units at the investment property non-stop, even though the investment property was empty most of the time whilst he was a caretaker. The defendant’s position in relation to Ms Libes fluctuated, but her final position seemed to be that any noise made whilst Ms Libes was there was much less than what Ms Libes asserted. The defendant’s consistent position was to the effect that she only made noise when the heating or air-conditioning units were turned on.
The defendant did not adduce any evidence to establish that the air-conditioning and heating units at the investment property were in fact operating in a manner that constituted a noise nuisance. Similarly, she did not adduce any evidence to establish the existence of defective plumbing or construction.
The defendant gave evidence of making complaints about the heating and air-conditioning units, including to the Stonnington City Council and called Ms Foscolos from the Stonnington City Council in that regard. She tendered an August 2021 report from Waveform Acoustics, in which it was recommended that the heating unit be relocated to the rear of the residence, as a mechanical unit was detected operating during the night period (at times) more than 10 dB(A) over the background level. The Waveform report noted that the air-conditioning units (as opposed to the heating units) were not operating during the time of testing, but it was presumed that they were likely to be audible during the night period. I permitted the Waveform report to be adduced into evidence, not for the purpose of relying on its content as expert evidence, but to demonstrate the relevant chronology.
The defendant acknowledged that both the heating and air-conditioning units were moved following her complaints to the Council and the obtaining of the Waveform report. But she said that moving the units made very little difference to the noise, other than perhaps the ‘ceiling noise’. Rather, the noise continued to be clearly audible inside her bedroom. She said:
I now cannot stand hearing even the slightest sound from either the Braemer unit or the split system unit. I am just so deeply traumatised by just the mere sound of these units. It is now over 7 years in duration since the units were installed and the noise from these units have driven [sic] from my home, so frequently, day and night, destroying any quiet enjoyment I could have had at my home in those years.
The defendant expressed a number of concerns about the obtaining of the intervention orders against her, including as to the plaintiff having paid for the legal expenses associated with them.
In respect of the application for an injunction, she gave the following evidence:
…I don't think I'm the one that needs fixing or restraining. All that needs to be done is that the heating units are replaced with silent ones and then there won't be any problem because the tenants will be able to run them 24/7 as they clearly believe they have a right to do, and there won't be any problem at all. And also I won't be there for that much longer in any case … because I’m definitely selling the house.
The defendant tendered a contract of sale signed on 20 February 2025, which she said was subject to due diligence from a developer. The contract of sale noted that settlement was due 17 months from completion of the purchaser’s 60 days due diligence period.
Relevant legal principles
In Allen v Yarra Valley Railway Inc, Quigley J observed that:
The tort of private nuisance is committed where a person interferes with another person’s use or enjoyment of their land in a way that is both substantial and unreasonable. Liability for nuisance is founded upon a state of affairs created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land.[1]
[1]Allen v Yarra Valley Railway Inc [2024] VSC 796, [26] (Quigley J), citing Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, [15] (Richards J).
Noise can be a continuing nuisance where it occurs on a regular basis.[2]
[2]United Utilities Water Ltd v Manchester Ship Canal Co Ltd [2025] AC 761, 771 [7].
Whether an interference is substantial is a question of fact.[3]
Whether an interference is unreasonable is an objective question, to be answered by “weighing the respective rights of the parties in the use of their land for the purposes of making a value judgment as to whether the interference is unreasonable”.[4]
A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society…[5]
[3]Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, [16] (Richards J); Riverman Orchards Pty Ltd v Hayden [2017] VSC 379, [179] (Dixon J).
[4]Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, [17] (Richards J), quoting Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287, 310 [119].
[5]Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903.
A person who considers that a neighbour has committed a nuisance against them is not entitled to commit some other nuisance against their neighbour for the purpose of repairing the alleged injury, and instead must obtain redress in a lawful manner.[6]
[6]See Ibottson v Peat (1865) 3 H & C 644; 159 ER 684; Christie v Davey [1893] 1 Ch 316 (North J).
Actual damage is required to complete a cause of action in nuisance.[7] The damage may be physical or non-physical[8] and damages may be awarded for pure economic loss arising from the interference with such interests.[9]
[7]Frost v Northern Beaches Council (2022) 110 NSWLR 265, 273 [25] (Brereton JA).
[8]Southern Properties (WA) Pty Ltd and Anor v Executive Director of the Department of Conservation and Land Management and Anor (2012) 42 WAR 287, 310 [118].
[9]Riverman Orchards Pty Ltd v Hayden [2017] VSC 379, [177] (Dixon J).
The damage must have been reasonably foreseeable[10] and, as a matter of fact, been caused by the nuisance.[11]
…the cause of an occurrence is a question of fact to be determined by applying common sense to the facts of each case. The question is whether the relevant act or omission was “so connected with the plaintiff’s loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it”.
The determination of factual causation requires the application of the “but for” test, namely that the harm that in fact occurred would not have occurred absent the relevant act or omission. The “but for” test is, however, a negative criterion of causation rather than a comprehensive test, and should be applied with some caution. The act or omission must have materially contributed to the damage suffered, which may be the case even if other factors have played a significant role. Scientific proof is not required (citations omitted).[12]
[10]Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, 546 [142].
[11]Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768, [55] (Richards J).
[12]Ibid, [56]-[57].
Richards J in Uren v Bald Hills Wind Farm Pty Ltd observed that:
Ordinarily, a plaintiff who has established that the defendant’s activities constitute a nuisance is entitled to an injunction to restrain the defendant from continuing to commit the same nuisance in future, in addition to damages for past nuisance. However, the Court has a discretion to award damages instead of an injunction, where damages would be an adequate remedy.[13]
[13]Uren v Bald Hills Wind Farm Pty Ltd [2022] VSC 145, [337] (Richards J).
In assessing damages, the plaintiff is entitled to be put back into the position that they would have been if not for the defendant’s tortious conduct.[14]
[14]Stockwell v State of Victoria [2001] VSC 497, [425] (Gillard J).
There is a legal issue as to whether the plaintiff, holding certain proprietary rights in reversion over the investment property (whilst leased to the three sets of tenants), may claim for loss and damage incurred prior to being in possession of the investment property.[15]
[15]Given the defendant was a self-represented litigant, counsel for the plaintiff identified this legal issue and drew to the Court’s attention relevant factual considerations and legal authorities that supported the position of the defendant.
The tort of nuisance is concerned with interference with land rather than interference with personal rights.[16] Accordingly, a reversioner may only maintain an action in nuisance where the interference is of such a permanent character as to prejudice the reversion, rather than a temporary infringement of their rights.[17] Any claim made by a reversioner in nuisance is limited to the extent that their reversionary interest is affected.[18]
[16]HampshireAutomotive Centre Pty Ltd v Centre Com (Sunshine) Pty Ltd & Anor (2019) 60 VR 579, 594 [74].
[17]Simpson v Savage (1856) 1 CB (NS) 347; 140 ER 143, 149 [361].
[18]Hunter v Canary Wharf Ltd [1997] AC 655, 692.
Similarly, Hedigan J in Jeffrey v Honig[19] quoting a passage from the 9th edition of Fleming’s Law on Torts said:
The right to complain of private nuisance, such as trespass, belongs exclusively to the actual possessor of the land affected. A reversioner cannot sue, unless the nuisance has permanently impaired the useability of the land and thereby damaged his proprietary interest. Thus he may complain of a building obstructing his ancient lights or of vibrations causing structural damage to his house because the injury would be such as will continue indefinitely unless something is done to remove it. But he has no remedy for noise, smoke or other invasions of a temporary nature, apparently even if it drives his tenants away or reduces the letting value of the property.[20]
[19][1999] VSC 337 (Hedigan J).
[20]Jeffrey v Honig [1999] VSC 337, [33] (Hedigan J), quoting John G Fleming, The Law of Torts (LBC Information Services, Sydney, 9th ed, 1998), 474.
Although the passage from Fleming suggests that there is no remedy for noise even if the noise drives a reversioner’s tenants away, the cases in which the issue of permanency has arisen have largely been cases where noise was said to be intolerable; rather than instances of the noise causing specific pecuniary or economic injury to the reversion. Even in these cases, injunctive relief has been granted when the nuisance was likely to continue or re-occur. An example of this is Jeffrey v Honig itself.
Jeffrey v Honig involved consideration of a nuisance constituted by the Jeffreys moving their cows along a road which abutted both their and the Honigs’ land. Complaint was made of the resulting smell from the cow excrement and of impeded access to the Honigs’ property whilst the cows were passing, and as a result of road surface damage caused by the driving of the cows. The Honigs were not in possession of the land at the time of the proceeding, having let the property to a tenant. The tenant in possession was not a party to the proceeding and seemingly unconcerned by the nuisance. Although the Honigs were not yet resident in the property and there was no damage of a permanent nature, Hedigan J was prepared to grant injunctive relief concluding:
… there is ample authority that would, if it were thought that some injunction should be applied, … justify a restraint upon the appellants from using Old Lorne Road between their farm premises at its northern end to its southern end so as to constitute a nuisance to land-holders and/or their tenants in such a way as to constitute a nuisance.
I have formed the view, for the reasons already articulated, that the Jeffreys’ conduct as found the by the Magistrate to have occurred may re-occur when the Honigs resume exclusive possession of their property. This is likely to occur at some time in the not too distant future.[21]
[21]Jeffrey v Honig [1999] VSC 337, [53]-[54] (Hedigan J).
Apart from the ability to obtain injunctive relief, more recent jurisprudence in respect of the interests of reversioners has left open the possibility of a reversioner claiming damages for consequential losses in the form of loss of rent.
In Bankstown City Councilv Alamdo Holdings Pty Ltd,[22] Spigelman CJ (Giles and Ipp JJA agreeing) stated by way of obiter dicta:
There is authority which would deny a reversioner the right to claim damages in the form of loss of rent. (See Rust v Victoria Graving Dock Co (1887) LR 36 Ch D 113.) The reasoning in this case is based on the line of authority commencing with Simpson v Savage [(1856) 140 ER 143] to the effect that a reversioner can only recover for permanent damage to the reversion. (See Rust (at 135).) The reasoning also emphasises that damages can only be awarded for injuries that “are the direct result of the act of omission or commission complained of”. This reasoning suggests that the test applied was that reflected in Polemis and Fruness; Re Withy & Co Ltd [1921] 3 KB 560, subsequently, overruled by The Wagon Mound (No 1) (1961) 34 ALJR 451. The approach to recovery for consequential losses is quite different today.[23]
[22](2004) 135 LGERA 312.
[23]Bankstown City Council v Alamdo Holdings Pty Ltd (2004) 135 LGERA 312, 334 [119]. It is noted that the High Court, in allowed an appeal against this decision, did not address this particular point. See Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660.
The English authorities of Ehmler & Anor v Hall[24] (Ehmler) and Irontrain Investments Ltd v Ansari (Salim)[25] (Irontrain) also distinguished Rust v Victoria Graving Dock Co[26] (Rust). In Ehmler, a reversioner in a negligence claim was awarded damages of eight weeks lost rent for a period during which the property in question was under repair after being crashed into by the defendant. The decision of Rust and the requirement of permanency was held not to be of universal applicability. A similar outcome was reached in Irontrain, in which it was held, in respect of water damage, that it was:
eminently reasonable for the [reversioner] to sue Mr Ansari for recovery of the rent deducted rather than requiring the tenants to comply with their contractual obligations.[27]
[24][1993] 1 EGLR 137.
[25][2005] EWCA Civ 1681.
[26](1887) 36 Ch D 113.
[27]Irontrain Investments Ltd v Ansari (Salim) [2005] EWCA Civ 1681, [48].
Even in earlier cases, where permanency has been the guiding test, the issue of permanence has been treated with some flexibility. For example in Bell v The Midland Railway Co (Bell),[28] the obstruction of access to the plaintiff’s wharf (which he leased to tenants), by the placement of carriages at the junction of the railway line, was held to be of a sufficiently permanent character as to permit a reversioner to sue, notwithstanding that the carriages were on wheels and movable. Erle CJ said:
These carriages of course were moveable, but they were permanently kept there for a long time, and for at least ten days constituted what may be called a permanent obstruction…[29]
[28](1861) 10 CB (NS) 287; 142 ER 462.
[29]Bell v The Midland Railway Co (1861) 10 CB (NS) 287; 142 ER 462, 468.
Wiles J did not even seem to require permanency, stating ‘…it is enough if the act is calculated to abridge or interfere with the estate of the reversioner’.[30] Byles J, took a similar approach stating:
… it appeared that he was himself in occupation of part of the wharf, and that he received a royalty on the rest. He therefore sustained not merely a postponed injury, but a present pecuniary damage, which takes this case out of the authorities relied on …[31]
[30]Bell v The Midland Railway Co (1861) 10 CB (NS) 287; 142 ER 462, 470.
[31]Ibid, 471.
Whether continuing nuisance
I am satisfied that, for the periods of time in which the investment property was tenanted up until 9 October 2023, the defendant regularly made a metallic banging noise during the course of the night, irrespective of whether air-conditioning or heating units were being operated by the tenants of the investment property and in most instances when no such units were being operated. I do not accept the defendant’s evidence that she only made this banging noise when the air-conditioning or heating units were on. The consistent evidence of all of the witnesses (other than Mr McCurley) was that it was rare for them to use those units at night.
It may be that the defendant thought she could hear a noise that she attributed to those units. It may be that she had another motive in making the noise. But, none of this matters. The metallic banging noise that the plaintiff made overnight could not in any sense be regarded as a legitimate noise. I am satisfied that the defendant made the noise deliberately, for the purpose of annoyance. I am satisfied that the noise was not in any sense a legitimate and ordinary activity. I am satisfied that the noise was substantial and unreasonable, and constituted a continuing nuisance.
I am further satisfied that the metallic banging noise continued whilst Ms Libes was a caretaker of the property. It is difficult to make any conclusions about whether the noise continued whilst Mr McCurley was a caretaker, given it is difficult to make any conclusions about when he was at the investment property and for how long. Mr McCurley’s description of the overnight noise was also to some extent different to how everyone else described the noise. But what happened whilst Mr McCurley was a caretaker is not significant in the overall assessment of this matter, because the defendant’s own evidence was to the effect that she felt entitled to make the noise and that she would continue to do so. The evidence makes it very clear that the defendant’s pattern of banging on or near the party wall during the night would continue to occur if the plaintiff were to re-let the premises.
I am further satisfied that the defendant regularly shouted or screamed during the periods of time in which the investment property was tenanted, and during the time that Ms Libes was a caretaker. I make no finding in respect of the period that Mr McCurley was a caretaker. The screaming or yelling occurred predominantly during the day when air-conditioning and heating units were being operated.
Again, I am satisfied that the defendant made this noise deliberately. In respect of this noise, it was for the purposes of getting the residents of the investment property to turn off the air-conditioning or heating units. Notwithstanding the purpose behind the yelling and screaming, I am satisfied that the noise was not in any sense a legitimate and ordinary activity. I am satisfied that the noise was substantial and unreasonable and constituted a continuing nuisance. Again, it is clear that the shouting and screaming would continue to occur if the plaintiff were to re-let the premises.
I am further satisfied that the defendant regularly (but less consistently) emitted noise from her premises in the nature of a radio or television being played at a very high volume. This noise occurred throughout the day and overnight and was clearly audible from the investment property. I am satisfied that this occurred at various times throughout the tenancies. I am satisfied that this noise was substantial and unreasonable and constituted a continuing nuisance. It was not in any sense a legitimate and ordinary activity, such as enjoying music or listening to talk back radio at a reasonable volume. Again, it is clear that this category of noise would continue to occur if the plaintiff re-let the premises.
Whether defendant justified in committing nuisance
I do not accept the defendant’s submission that she was justified in committing a nuisance because she was entitled to make the noise due to her own concerns about noise being emitted by the operation of air-conditioning and heating units at the investment property.
In terms of relevant factual findings, I conclude that much of the defendant’s noise, particularly during the night, was made even when the heating and air-conditioning units were not in operation.
I am also not satisfied that there was noise emanating from the investment property’s heating and air-conditioning units such as to constitute a nuisance, either before or after their relocation.
In any event, the defendant was not entitled to commit a nuisance in retaliation for noise that she experienced herself or for the purpose of achieving complete silence within her own home. If she did have a justified complaint, it was for her to obtain redress in a lawful manner.
Damages in the nature of lost rent
I am satisfied that the various types of noise, and particularly the metallic banging noise at night, has led to the investment property becoming un-lettable. I am satisfied that the investment property now sits vacant. I am satisfied that the plaintiff has not derived rent for the investment property since 9 October 2023. I am satisfied, based on the evidence of Mr Ferrier, that without the continuing nuisance, the plaintiff would have been able to lease the property to tenants and receive rent in the period from 9 October 2023 up until today.
The rent that would have been received for this period can be assessed with reference to the expert report by Mr Ferrier. Mr Ferrier’s evidence was to the effect that:
(a) the plaintiff would have been able to find a tenant to lease the investment property on a 12-month term after Tobin and De Luca vacated;
(b) the rent would be $1,580.00 per week;
(c) the investment property would have been vacant for 3 weeks between tenants; and
(d) after that lease expired, the plaintiff would have been able to lease the investment property under a further 12 months lease at a rent of $1,630.00 per week (with a 3-week gap between tenants).
From the gross lost rent, it is appropriate to deduct an amount for the repair and maintenance that would have been occasioned. This can be assessed with reference to the actual repair and maintenance figures for the investment property that had been occasioned whilst the investment property was tenanted and on average consisted of $370 per month for repair and maintenance. Applying a conservative approach to estimating the repair and maintenance costs, I accept the plaintiff’s submission that a monthly amount for repair and maintenance should consist of:
(a) $400 per month from November 2023 to October 2024; and
(b) $440 per month from November 2024 until the date of judgment.
It is also appropriate to deduct 5.5% of gross rent – for the managing agent’s management fee – and 3.3% of gross annual rent – for the leasing fee.
Accordingly, the lost rent to 18 September will be $129,609, made up of:
(a) $70,131 for the 12 month period 30 October 2023 to 29 October 2024, calculated by:
(i) $82,160 in gross lost rent at $1,580 per week for 52 weeks;
(ii) less $4,518 in management fees that would have been paid (5.5% of gross rent received);
(iii) less $2,711 leasing fee (3.3% of gross annual rent);
(iv) less $4,800 for repairs and maintenance ($400 x 12 months); and
(b) $59,478 for the period 20 November 2024[32] to 18 September 2025 (inclusive) (303 days), calculated by:
[32]Assuming a 21 day vacancy from 29 October 2024.
(i) $70,555 in lost gross rent at $1,630.00 per week for 303 days
(ii) less $3,880 in management fees that would have been paid (5.5% of gross rent received);
(iii) less $2,797 leasing fee (3.3% of gross annual rent); and
(iv) less $4,400 for repairs and maintenance ($440 x 10 months).
It was reasonably foreseeable that plaintiff would suffer lost rent. The defendant was aware that the property was an investment property. The defendant was aware that the noise she made interfered with the use and enjoyment of the tenants of the investment property. The defendant was aware that the noise she had made had caused tenants to leave. The defendant was aware that the continuation of her behaviour was likely to have the same effect on any new tenants. A reasonable person in the position of the defendant would be well aware that the plaintiff would suffer loss in the form of lost rent.
The noise nuisance is so connected with the lost rent from 9 October 2023 up until the current date, that it can only be regarded, as a matter of common sense, as being the cause of the lost rent.
Plaintiff’s interest as reversioner
I am satisfied that the plaintiff is entitled to loss and damage incurred prior to being in possession of the investment property, in the form of rent reductions and lost rent.
I accept that the authorities do not provide a uniform path to the award of damages in this regard. It might be said that the nuisance is not of a permanent nature given it is tied to the defendant being in possession of the property next door and continuing to behave in a particular manner.
However, I accept that the reversionary interest of the plaintiff has been injured and that the nuisance has, at least, the same permanency that existed in Bell. The noise created by the defendant has prevailed and caused the demise of three separate tenancies and the defendant has made it clear in her evidence that she sees no reason to cease creating a continuing noise nuisance. The noise has repeatedly interfered with the plaintiff’s right to lease the investment property and derive income from it.
An assessment of the evidence demonstrates that the loss and damage incurred by the plaintiff whilst holding rights in reversion over the investment property is as follows:
(a) rental reductions consisting of:
(v) $357 to the Wetherells;
(vi) $3,259 to Thorwesten and Paul;
(vii) $26,072 to Tobin and De Luca;
(b) lost rent arising from early terminations consisting of:
(i) $2,414 as a result of the Wetherells’ early termination; and
(ii) $9,009 as a result of the early termination by Thorwesten and Paul;
(c) unpaid rent by Tobin and De Luca in the amount of $37,054.
For the same reasons that it was reasonably foreseeable that plaintiff would suffer lost rent once the third set of tenants moved out, it was reasonably foreseeable that the tenants living at the investment property:
(a) would stop paying rent because of the noise;
(b) would receive reductions on their rent because of the noise; and
(c) would prematurely end their leases because of the noise.
The noise nuisance is so connected with these losses that they can only be regarded, as a matter of common sense, as being the operating cause.
Other claimed loss and damage
I do not allow damages for additional real estate and advertising costs. These would have had to be incurred at some stage, even if the tenants had remained for the entire 12 months.
I do not allow damages in the nature of mitigation costs for expenditure on intervention orders and legal fees (incurred separately to the current litigation) for dealing with tenancy issues. The intervention orders were essentially part of a negotiation between the plaintiff and his tenants in an attempt to secure their ongoing tenancy, not just until the end of each of their lease agreements, but beyond. I am not satisfied on the facts of this case that there is a sufficient causal connection such that the defendant should be held responsible for these alleged losses.
Exemplary damages
Exemplary damages are sought on the basis that the defendant has acted in conscious and contumelious disregard of the plaintiff’s rights.
Although I have concluded that the defendant has committed a nuisance and that she deliberately engaged in the conduct that she did, I am not of the view than an award of exemplary damages is necessary ‘to mark disapproval by the Court of [the] defendant’s conduct … in a way that deters [the defendant] and others from acting in that way’.[33]
[33]TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, 363 [166] (Spigelman CJ, Mason P and Grove J agreeing).
Ordinarily, conduct attracting exemplary damages ‘must be such that an award of compensatory damages does not sufficiently express the court’s disapproval … of the wrongdoer’.[34]
[34]New South Wales v Riley (2003) 57 NSWLR 496, 530 [138] (Hodgson JA).
Here, I am of the view that compensatory damages are sufficient to demonstrate the Court’s disapproval of the defendant’s conduct.
Injunctive relief
The defendant has made it clear in her evidence that she will continue committing a nuisance, stating that she is not the one that needs restraining.
It has not been possible to stop the defendant from committing the ongoing nuisance to date. Intervention orders have not worked. Police intervention has not worked. Conversations with the defendant have not worked. Moving the air-conditioning and heating units has not worked. The involvement of Stonnington Council has not worked. The commencement of this proceeding has not altered the attitude of the defendant.
Consequently, it is evident that damages are not an adequate remedy. Without the injunction the investment property will remain vacant. Apart from not realising any income, a vacant property carries other risks, such as those associated with squatters moving in. There is no oppression to the defendant in requiring her to cease making the noise that she has been making.
The defendant submitted that an injunction should not be granted because she had signed a contract of sale. However, the proposed settlement date is uncertain and a long way off. It is clear that the defendant will continue to commit a nuisance for as long as she occupies her property.
Accordingly, in all the circumstances, I am prepared to grant a permanent injunction restraining the defendant from committing a noise nuisance.
Harassment
The plaintiff seeks that any injunction also restrain the defendant from communicating with the tenants of the investment property in respect of the heating and air-conditioning units. I am not satisfied that such an order should be made.
I am certainly satisfied that the defendant has from time to time behaved in a way that has annoyed the tenants and Ms Libes and has resulted in them feeling harassed and abused. This behaviour tends to relate to her issues concerning the air-conditioning and heating units. However, I am not satisfied that this behaviour meets the threshold for a nuisance, let alone a continuing nuisance.
Negligence
The plaintiff pursued a claim in negligence, but was unable to point to any legal authority in support of the proposition that a duty of care to avoid economic loss arising from a tenancy was owed by one neighbour to another. In those circumstances I do not uphold the plaintiff’s claim in negligence.
Disposition
There will be judgment for the plaintiff in the following terms:
(a) The defendant will be restrained from:
(viii) banging on or near the party wall conjoining her property and the investment property;
(ix)shouting or raising her voice at an unreasonable volume whilst located at or in the immediate vicinity of her property or the investment property; and
(x) playing a radio, television or any other audio device at an unreasonable volume at her property.
(b) The defendant is to pay damages to the plaintiff in the sum of $207,774.
I will hear the parties on the question of costs.
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