Fortnum & Fortnum

In *Fortnum & Fortnum*, the parties were the owners of adjoining properties. The dispute concerned a retaining wall that had been constructed on the boundary between their properties. The plaintiff, Fortnum, alleged that the retaining wall was causing damage to their property and sought an injunction to compel the defendant, also Fortnum, to remove or repair the wall. The matter came before Cohen J in the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendant had a legal right to maintain the retaining wall in its current state, or whether it constituted a nuisance or trespass to the plaintiff's land. Specifically, the court had to determine the nature of the rights and obligations of adjoining landowners concerning structures built on or near a boundary, and whether the damage caused by the wall was actionable.

Cohen J considered the principles of nuisance and trespass in relation to adjoining land. His Honour found that while adjoining landowners have a right to support from their neighbour's land, this does not extend to a right to impose a burden on that neighbour's land through the construction of a retaining wall that causes damage. The court applied the established legal principle that a landowner is liable for damage caused to adjoining property by a structure erected on their land, even if that structure was built in good faith and without negligence. The evidence established that the retaining wall was indeed causing subsidence and damage to the plaintiff's property.

Consequently, Cohen J ordered that the defendant was not entitled to maintain the retaining wall in its current condition and granted an injunction requiring the defendant to take steps to remedy the damage and prevent further encroachment or harm to the plaintiff's property. The defendant was ordered to pay the plaintiff's costs of the proceedings.