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Hill v Higgins

Hill v Higgins

Case [2012] NSWSC 270 27 March 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Hill v Higgins [2012] NSWSC 270
Hearing dates: 4-5 May, 4 November and 9 December 2012
Decision date: 27 March 2012
Jurisdiction: Common Law
Before: Harrison J
Decision:
Verdict for the plaintiffs for $220

Catchwords: TORTS - trespass - trespass to land -deposit of bricks - subsequent unauthorised entry to remove bricks - damages awarded
TORTS - trespass - trespass to land - encroaching dwarf retaining wall - no damages awarded
TORTS - nuisance - land unkempt, overgrown and weed infested - no nuisance established
Legislation Cited: Encroachment of Buildings Act 1922
Environmental Planning and Assessment Act 1979
Cases Cited: Break Fast Investments Pty Ltd v PCH Melbourne Ltd [2007] VSCA 311; (2007) 20 VR 311
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Haddon v Lynch [1911] VLR 230
Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635
Ruthning v Ferguson [1930] St R Qd 325
Walter v Selfe (1851) 4 De G & Sm 315 at 322; 64 ER 849
Watson v Cowen [1959] Tas SR 194
Wherry v Trustees of the Sisters of Charity of Australia [2000] NSWLEC 252; (2007) 111 LGERA 216
Texts Cited: Restatement (Second) of Torts § 822
Category: Principal judgment
Parties: Andrew Steven Hill (First Plaintiff)
Julie Hill (Second Plaintiff)
Anita Michelle Higgins (First Defendant)
Alan Higgins (Second Defendant)
Representation: M R Hall (Plaintiffs)
J J Young (Defendants)
Trisley Lawyers (Plaintiffs)
Sparke Helmore (Defendants)

File Number(s): 2009/296191

Judgment

HIS HONOUR: Mr and Mrs Hill and Mr and Mrs Higgins are neighbours. Their properties are respectively known as 42 and 40 Kurrawong Avenue, Hawks Nest, which is a small hamlet located on the picturesque northern shores of Port Stephens. A modest house is erected on each property. Kurrawong Avenue slopes gently from north to south in the vicinity of the properties. Number 40 is on the higher northern side and number 42 is on the lower southern side. Mr and Mrs Hill purchased number 42 in about November 2005. Mrs Higgins purchased number 40 sometime in the following year.

A mostly brick dwarf retaining wall approximately one metre high and a mesh dividing fence originally ran from east to west along most of the northern side of the common boundary between the two properties. At some stage during 2006, Mr Hill became alerted to the fact that the double brick section of the retaining wall had deteriorated and had developed a slight lean, so that it was to some extent encroaching onto and over his property. In late 2006 Mr and Mrs Higgins carried out some earthworks and landscaping upon their property adjacent to that boundary. They did nothing then to repair or to relocate the retaining wall. Mr Hill has given evidence that Mr Higgins told him at that time that he did not intend to do anything about the state or location of the retaining wall "until it falls over". This comment was not destined…

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 Hill v Higgins

Details

AGLC: Hill v Higgins [2012] NSWSC 270
Case: [2012] NSWSC 270
Decision Date: 27 March 2012

CaseChat Overview and Summary

The case of Hill v Higgins involved a dispute between neighbours over alleged trespass and nuisance. The plaintiff, Hill, alleged that the defendant, Higgins, trespassed onto Hill's property by depositing bricks and later entering the property to remove them. Hill also claimed that an encroaching dwarf retaining wall constituted a trespass and that the defendant's land was a nuisance due to being unkempt, overgrown, and weed infested. The case was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the defendant's actions constituted trespass to land and whether the condition of the defendant's land amounted to a private nuisance. The court was required to determine whether the plaintiff had established a prima facie case for trespass and nuisance and whether any damages were warranted.

The court found that the defendant's deposit of bricks on the plaintiff's land constituted trespass, and the subsequent unauthorised entry to remove the bricks was also a trespass. However, the court held that the encroaching dwarf retaining wall did not amount to a trespass. The court found that the plaintiff had failed to establish that the condition of the defendant's land constituted a private nuisance, as the unkempt state of the land did not unreasonably interfere with the plaintiff's enjoyment of their own property.

The court awarded damages to the plaintiff for the trespasses but declined to award any damages for the alleged nuisance. The court held that the plaintiff had not established a case for nuisance and that the condition of the defendant's land did not amount to an unreasonable interference with the plaintiff's use and enjoyment of their property.

Orders