Donnelly v Hunter's Hill Council - [2020] NSWDC 76

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Donnelly v Hunter’s Hill Council [2020] NSWDC 76
Hearing dates: 3-6 February 2020; 20 March 2020
Date of orders: 01 April 2020
Decision date: 01 April 2020
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the plaintiff in the sum of $35,470.33.
(2) The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court.
(3) Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.

Catchwords:
Torts – private nuisance – large camphor laurel tree located on the defendant council’s land – alleged damage to the plaintiff's front fence, gate structures and front paving – whether elements of private nuisance have been established – extent of damages suffered – whether injunction should be ordered – form of injunctive relief appropriate
Jurisdiction – jurisdiction of District Court to grant ancillary injunctive relief
Legislation Cited: District Court Act 1973 (NSW)
Local Government Act 1993 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited: Care Park Pty Ltd v Universal One Communication Pty Ltd [2019] NSWSC 1405
Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 (Court of Appeal)
Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683
Hargrave v Goldman (1963) 110 CLR 40
Kraemers v Attorney-General for Tasmania [1966] Tas St Rep 15
Lawrence v Fen Tigers Ltd [2014] AC 822
Malliate v Sharpe [2001] NSWSC 1057
Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169
Michos v Council of the City of Botany Bay [2012] NSWSC 625
Morgan v Khyatt [1964] 1 WLR 475
Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Semple v Wilson [2018] NZHC 992
Torette House Pty Ltd v Berkman (1940) 62 CLR 637
Valherie v Strata Corp No 1841 [2004] SASC 170
Young v Wheeler (1987) Aust Torts Reports 80-126
Category: Principal judgment
Parties: Peter Edward Donnelly (Plaintiff)
Hunter's Hill Council (Defendant)
Representation:
Counsel:
B C Kasep (Plaintiff)
D Kelly (Defendant)
Solicitors:
Pikes & Verekers Lawyers (Plaintiff)
Gillis Delaney Lawyers (Defendant)

File Number(s): 2019/00078124

Judgment

In these proceedings, the plaintiff, Dr Peter Donnelly, brings a claim against the defendant, Hunter’s Hill Council, in the tort of nuisance seeking damages and related injunctive relief. The proceedings relate to a large camphor laurel tree which is growing on the nature strip owned by the defendant council immediately in front of the plaintiff's house in Futuna Street, Hunters Hill in Sydney. The plaintiff asserts that the roots of the camphor laurel tree are pushing against the front sandstone fence and gate of his property, causing the fence and gate to be forced out of alignment and other roots have raised pavers in the front…

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: [2020] NSWDC 76
Decision Date: 01 April 2020

CaseChat Overview and Summary

The plaintiff, Donnelly, brought an action against Hunter's Hill Council in the District Court of New South Wales, claiming damages for private nuisance. The plaintiff alleged that a large camphor laurel tree located on the defendant council’s land had caused damage to the plaintiff's front fence, gate structures, and front paving. The plaintiff sought to establish the elements of private nuisance, determine the extent of the damages suffered, and obtain an injunction to prevent further harm. The defendant council contended that the tree did not cause the damage claimed and that the court lacked the jurisdiction to grant the injunctive relief sought by the plaintiff.

The court was required to decide whether the elements of private nuisance had been established and to what extent the plaintiff had suffered damages. It was also necessary to determine whether an injunction should be ordered and, if so, what form of injunctive relief was appropriate. Additionally, the court needed to consider the jurisdictional limits of the District Court in granting ancillary injunctive relief.

The court found that the elements of private nuisance were established, as the evidence demonstrated that the tree on the council's land had indeed caused the damage to the plaintiff's property. The court assessed the extent of the damages and awarded the plaintiff $35,470.33 in damages. The court also found that an injunction was necessary to prevent further harm and ordered the defendant council to take appropriate measures to address the issue. Regarding the jurisdictional matter, the court determined that it had the authority to grant the injunctive relief sought by the plaintiff.

The court ordered judgment for the plaintiff in the sum of $35,470.33, directed the parties to bring in short minutes of order within 14 days to reflect the reasons of the court, and granted liberty to the parties to approach the Associate to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $35,470.33.

(2) The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court.

(3) Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Donnelly v Hunter’s Hill Council [2020] NSWDC 76
Hearing dates:	3-6 February 2020; 20 March 2020
Date of orders:	01 April 2020
Decision date:	01 April 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $35,470.33. (2) The parties are to bring in short minutes of order within 14 days to reflect the reasons of the court. (3) Liberty to the parties to approach the Associate to Dicker DCJ to relist the matter if necessary for further argument about the costs of the proceedings and the precise form of the injunctive order to be made.
Catchwords:	Torts – private nuisance – large camphor laurel tree located on the defendant council’s land – alleged damage to the plaintiff's front fence, gate structures and front paving – whether elements of private nuisance have been established – extent of damages suffered – whether injunction should be ordered – form of injunctive relief appropriate Jurisdiction – jurisdiction of District Court to grant ancillary injunctive relief
Legislation Cited:	District Court Act 1973 (NSW) Local Government Act 1993 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Care Park Pty Ltd v Universal One Communication Pty Ltd [2019] NSWSC 1405 Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 (Court of Appeal) Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 Hargrave v Goldman (1963) 110 CLR 40 Kraemers v Attorney-General for Tasmania [1966] Tas St Rep 15 Lawrence v Fen Tigers Ltd [2014] AC 822 Malliate v Sharpe [2001] NSWSC 1057 Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 Michos v Council of the City of Botany Bay [2012] NSWSC 625 Morgan v Khyatt [1964] 1 WLR 475 Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Semple v Wilson [2018] NZHC 992 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 Valherie v Strata Corp No 1841 [2004] SASC 170 Young v Wheeler (1987) Aust Torts Reports 80-126
Category:	Principal judgment
Parties:	Peter Edward Donnelly (Plaintiff) Hunter's Hill Council (Defendant)
Representation:	Counsel: B C Kasep (Plaintiff) D Kelly (Defendant) Solicitors: Pikes & Verekers Lawyers (Plaintiff) Gillis Delaney Lawyers (Defendant)
File Number(s):	2019/00078124