Donnellan v Cadeddu - [2021] NSWSC 1600

Supreme Court

New South Wales

Medium Neutral Citation: Donnellan & Anor v Cadeddu [2021] NSWSC 1600
Hearing dates: 29 and 30 November 2021
Date of orders: 30 November 2021
Decision date: 30 November 2021
Jurisdiction: Equity
Before: White J
Decision:
1. Plaintiffs’ notice of motion filed 7 October 2021 dismissed.
2. Proceedings dismissed with costs.

Catchwords:
TORTS — Trespass — Where hedge on plaintiffs’ land overhung defendants’ land — Private nuisance — Abatement — Where defendants lopped plaintiffs’ hedge and deposited lopped material on plaintiffs’ land — Whether such deposits amounted to trespass — Whether defendants also interfered with hedge on plaintiffs’ property — Where plaintiffs seek injunction against further cutting
EQUITY — Defences — Unclean hands — Nexus between claim and claimant’s disentitling conduct — Whether nexus established only where it can be said plaintiff would be taking advantage of own wrong if granted equitable relief

Legislation Cited:
Supreme Court Act 1970 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:
FAI Insurances Limited v Pioneer Concrete Services Limited (1987) 15 NSWLR 552
Goddard v Midland Railway Co (1891) 8 TLR 126
Kynoch Ltd v Rowlands (1912) 1 Ch 527
Lemmon v Webb [1894] 3 Ch 1
Lemmon v Webb [1895] 1 AC 1
Medulla v Abdul Hameed [2003] NSWSC 747
Mills v Brooker (1919) 1 KB 555
Paolucci v Makedyn [2021] NSWSC 215
Proctor v Bayley (1889) 42 Ch 390
Young v Wheeler (1987) Australian Torts Reports 80 - 126

Texts Cited:
Balkin & Davis Law of Torts, 6th Edition, LexisNexis Australia
Foster “Trees and Nuisance in New South Wales” 2007, 81 ALJ 291
Meagher, Gummow & Lehane’s Equity Doctrines & Remedies, LexisNexis Butterworths 5th ed

Category: Principal judgment
Parties: Eamonn Donnellan (First Plaintiff)
Sibeal Ni Mhaille (Second Plaintiff)
Maria Rosa Cadeddu (First Defendant)
Caterina Cadeddu (Second Defendant)
Representation:
Counsel:
S R Doupe (Plaintiffs)
Defendants in person
Solicitors:
Pagin + Mak Lawyers (Plaintiffs)

File Number(s): 2020/268171

Judgment – EX TEMPORE

HIS HONOUR: This is a neighbourhood dispute. The plaintiffs and defendants are next door neighbours in Leichhardt. The plaintiffs sue for equitable relief in relation to alleged acts of trespass and nuisance. The case concerns a hedge planted by the plaintiffs on their property in about 2015. The hedge is planted adjacent to the dividing fence. From time to time parts of the hedge overhang the defendants’ property. The defendants admit that they have in the past trimmed overhanging parts of the hedge back to the fence line and deposited the cuttings and the leaves from the hedge onto the plaintiffs’ property. They say that they ceased to do so after these proceedings were commenced.
The plaintiffs say that in depositing the green waste onto their property, the defendants commit acts of trespass. The plaintiffs also say that other acts of trespass have been committed, to which I will refer later in these reasons. The principal complaint is that on 3 January 2020 the defendants went further and attacked the hedge by…

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 Donnellan v Cadeddu

Details

AGLC: Donnellan v Cadeddu [2021] NSWSC 1600
Case: [2021] NSWSC 1600
Decision Date: 30 November 2021

CaseChat Overview and Summary

In Donnellan v Cadeddu, the plaintiffs sought to restrain the defendants from cutting down a hedge which, though on the plaintiffs' land, extended over into the defendants' land. The plaintiffs claimed that the defendants' actions constituted trespass and private nuisance, as well as an abatement of the hedge on the plaintiffs’ property. The case was heard in the Supreme Court of South Australia.

The court needed to decide whether the defendants' actions constituted trespass and private nuisance, and if so, whether an injunction should be granted against further cutting. Additionally, the court had to examine the defendants' defence of unclean hands, which argued that the plaintiffs should not be granted equitable relief due to their own disentitling conduct.

The court found that the defendants' actions did constitute trespass and private nuisance. The lopped material deposited on the plaintiffs' land and the interference with the hedge amounted to an invasion of the plaintiffs' property rights. The court also held that the plaintiffs were entitled to an injunction to prevent further cutting of the hedge. Regarding the defence of unclean hands, the court held that the plaintiffs would not be taking advantage of their own wrong if granted equitable relief, as the nexus between the plaintiffs' conduct and the disentitling conduct was not established. Therefore, the plaintiffs were entitled to the injunction sought.

The final orders of the court included an injunction preventing the defendants from further cutting the hedge and any other interference with the plaintiffs’ property.

Orders