Jukes v Larter - [2012] NSWSC 369

Supreme Court

New South Wales

Case Title: Jukes v Larter

Medium Neutral Citation: [2012] NSWSC 369

Hearing Date(s): 10 April 2012

Decision Date: 11 April 2012

Jurisdiction: Common Law

Before: Beech-Jones J

Decision:
(1) Upon the Plaintiffs giving the usual undertaking as to damages and subject to order 2, the Defendants by themselves or agents are restrained from undertaking any excavation, whether by jackhammer or otherwise on the property at 8 The Circlet, Rathmines until further order save and except that the Defendants may undertake such excavation as certified by P. M. Engineering Pty Ltd ("P. M. Engineering") as is reasonably necessary to construct a retaining wall on that part of the excavation on the southern boundary of 8 The Circlet, Rathmines which as at 11 April 2012 is exposed;

(2) In the event that the Defendants construct a retaining wall on that part of the excavation on the southern boundary of 8 The Circlet, Rathmines which as at 11 April 2012 is exposed then order 1 shall dissolve after the expiry of 7 days from the Defendants providing the Plaintiffs with certification by P. M. Engineering of its construction to a standard P. M. Engineering consider satisfactory.

(3) Stand over proceedings to 23 May 2012 at 9.00 am before a Registrar.

(4) There be liberty to apply on 24 hours notice.

(5) Costs are reserved.

Catchwords: INJUNCTIONS - excavation of Defendant's property - appreciable risk to Plaintiff's adjoining property - apprehended breach of duty of care - balance of convenience

Legislation Cited: Civil Liability Act 2002
Conveyancing Act 1919
Supreme Court Act 1970

Cases Cited: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Piling v Prynew [2008] NSWSC 118

Texts Cited:

Category: Interlocutory applications

Parties: Neville Vincent Jukes (First Plaintiff)
Patricia Denise Jukes (Second Plaintiff)
Colin Larter (First Defendant)
Christine Larter (Second Defendant)

Representation

- Counsel: Counsel:
Mr G Laughton SC (First and Second Plaintiffs)
Mr R Lovas (First and Second Defendants)

- Solicitors: Solicitors:
Attwaters Solicitors (First and Second Plaintiffs)
Kilmurray Lawyers(First and Second Defendants)

File number(s): 2012/00095041

Publication Restriction:

EX TEMPORE JUDGMENT

Before me is an application to extend an interlocutory injunction that was originally granted by Hislop J on 25 March 2012 and then was extended by an undertaking given to the Court by the defendants. Mr Laughton SC for the plaintiffs has reformulated the relief sought in light of certain experts' reports that have recently been obtained. The matter proceeded before me as a contest over that reformulated relief.
The plaintiffs, Mr and Mrs Jukes, are the owners and occupiers of 10 The Circlet, Rathmines, on Lake Macquarie. To the immediate north of their property is 8 The Circlet, Rathmines, which is owned and occupied by the defendants, Mr and Mrs Larter. Number 10 is higher than number 8. To the west of both properties is the street…

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 Jukes v Larter

Details

AGLC: Jukes v Larter [2012] NSWSC 369
Case: [2012] NSWSC 369
Decision Date: 11 April 2012

CaseChat Overview and Summary

The plaintiff, Jukes, sought an interlocutory injunction against the defendant, Larter, to prevent the defendant from excavating his property, which was adjacent to the plaintiff's property. The plaintiff argued that the excavation posed an appreciable risk of damage to the plaintiff's property, alleging that the defendant would breach a duty of care in the process. The court was required to weigh the balance of convenience in deciding whether to grant the injunction.

The primary legal issue before the court was whether the risk of damage to the plaintiff's property was appreciable enough to warrant an interlocutory injunction. The court considered the risk of damage and the plaintiff's right to have his property protected from harm. The court also considered the balance of convenience, which included the potential prejudice to the defendant if the injunction was granted, and the potential harm to the plaintiff if it was not. The court found that the risk of damage was appreciable and that the balance of convenience favoured the plaintiff.

The court found that the risk of damage to the plaintiff's property was appreciable enough to warrant an interlocutory injunction. The court noted that the plaintiff had demonstrated a real and substantial risk of damage, and that the defendant had not provided sufficient evidence to counter this risk. The court also found that the balance of convenience favoured the plaintiff, as the potential harm to the plaintiff's property outweighed the potential prejudice to the defendant. The court therefore granted the plaintiff an interlocutory injunction to prevent the defendant from excavating his property.

The court ordered that the defendant was restrained from excavating his property until the final hearing of the matter. The court also ordered that the defendant pay the plaintiff's costs of the application. The court noted that this was an interlocutory order and that the final outcome of the matter would depend on the evidence presented at the final hearing.

Orders