Griffiths v McDonald

In *Griffiths v McDonald*, the New South Wales Court of Appeal considered an appeal from a decision of the District Court concerning a dispute between neighbours. The appellant, Mr. Griffiths, had erected a fence which encroached onto the property of the respondent, Ms. McDonald. Ms. McDonald sought an order for the removal of the encroaching fence.

The primary legal issue before the Court of Appeal was whether the District Court had erred in its assessment of the appropriate remedy. Specifically, the court had to determine whether an order for the removal of the fence was a just and equitable outcome, or if an alternative remedy, such as an easement or compensation, should have been ordered. The court also considered the principles governing the award of mandatory injunctions in cases of encroachment.

The Court of Appeal found that the District Court had correctly applied the principles of equity in ordering the removal of the fence. The court emphasised that while courts are reluctant to grant mandatory injunctions, such orders are appropriate where a party has acted in wilful disregard of another's property rights. In this instance, the appellant's encroachment was found to be substantial and without the respondent's consent, justifying the equitable relief granted. The court affirmed that the right to exclusive possession of one's land is a fundamental right, and an encroaching structure constitutes a trespass.

The appeal was dismissed, and the order of the District Court for the removal of the fence was upheld.