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Dejanovic v Sheppard

Dejanovic v Sheppard

Case [2025] VSC 588 18 September 2025

Nuisance

Injunction

Tort Law

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Dejanovic v Sheppard

Details

AGLC: Dejanovic v Sheppard [2025] VSC 588
Case: [2025] VSC 588
Decision Date: 18 September 2025

CaseChat Overview and Summary

In the matter of Dejanovic v Sheppard, the plaintiff, Dejanovic, sought relief from the court against the defendant, Sheppard, who was the neighbour of Dejanovic, for continuous unreasonable noise emanating from Sheppard's property. The dispute was heard and determined by the Supreme Court of Victoria. The plaintiff claimed that the noise from Sheppard's property constituted a nuisance that substantially and unreasonably interfered with Dejanovic's use and enjoyment of their land. Additionally, the plaintiff argued that Sheppard's entitlement to commit the nuisance to obtain redress was not a valid defence, and that the reversioner's interest was damaged.

The legal issues before the court were whether the noise constituted a substantial and unreasonable interference with the plaintiff's use and enjoyment of their land, whether the defendant's entitlement to commit the nuisance to obtain redress was a valid defence, and whether the reversioner's interest was damaged. The court was required to consider relevant case law, including Uren v Bald Hills Wind Farm Pty Ltd, Jeffrey v Honig, Ehmler & Anor v Hall, Irontrain Investments Ltd v Ansari, and Bell v The Midland Railway Co.

The court held that the noise from Sheppard's property did constitute a substantial and unreasonable interference with Dejanovic's use and enjoyment of their land. The court found that the defendant's entitlement to commit the nuisance to obtain redress was not a valid defence, and that the reversioner's interest was indeed damaged. The court considered the terms of any appropriate injunction and determined that an injunction was necessary to prevent further interference with Dejanovic's use and enjoyment of their land. The court granted an injunction, restraining Sheppard from causing any further unreasonable noise from their property that would interfere with Dejanovic's use and enjoyment of their land.

Orders