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Malliate v Sharpe

Malliate v Sharpe

Case [2001] NSWSC 1057 13 December 2001

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CITATION: Malliate v Sharpe [2001] NSWSC 1057

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4039/00

HEARING DATE(S): 13 November 2001

JUDGMENT DATE:
13 December 2001

PARTIES :

Suzanne Malliate (Plaintiff)
Ralph Hugh Sharpe (Defendant)
Louise Sharpe (Defendant)

JUDGMENT OF: Campbell J

COUNSEL : G Nell (Plaintiff)
No appearance (Defendant)

SOLICITORS: Baker & McKenzie (Plaintiff)
No appearance (Defendant)

CATCHWORDS: TORTS - NUISANCE - elements of tort - by tree roots encroaching on neighbouring land - adoption or continuance of nuisance - form of order - whether mandatory injunction requiring removal of tree appropriate

CASES CITED: Young v Wheeler (1987) Aust Torts Reports
Morgan v Khyatt [1964] 1 WLR 475
City of Richmond v Scantelbury [1991] 2 VR 38
McCombe v Read [1955] 2 QB 429
Khyatt v Morgan [1961] NZLR 1020
Mandeno v Brown [1952] NZLR 447
Woodnorth v Holdgate [1955] NZLR 552
Darroch v Carroll [1955] NZLR 997
Roud v Vincent [1958] NZLR 794
Hooper v Rogers [1975] 1 Ch 43

DECISION: Mandatory injunction requiring removal of tree not appropriate when court not satisfied no other way of ending the nuisance was practicable - injunction requiring defendants not to cause or permit tree roots to encroach so as to constitute a nuisance granted

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CAMPBELL J

13 December 2001

4039/00 SUZANNE MALLIATE v RALPH SHARPE & ANOR

Nature of the Dispute

1 HIS HONOUR: This is a dispute between two neighbours concerning a rubber tree, which grows close to the boundary they share. The tree is growing on the defendants’ land. The plaintiff claims that roots from the rubber tree have entered her property, have damaged a path and steps in her property, and, if allowed to proceed in their natural course, might damage other structures on her property. She seeks a mandatory injunction requiring the rubber tree to be killed by poisoning, in such a way that its roots will die too.

The Two Blocks of Land

2 The plaintiff is the registered proprietor of land located at 21 Juvenis Avenue Oyster Bay. From the rear of the house which is there, if one goes in a northerly direction, the block of land falls away fairly steeply. Down this slope, running close to the western boundary of the lot, is a concrete path and steps. The path and steps provide the only way into the plaintiff’s backyard from outside her house. On the plaintiff’s land, and to the east of those concrete steps, has been constructed a large paved area (“the Paved Area”), in which is a concrete pool and spa. The Paved Area is on the same level as the back of the house. Thus, as one goes down the steps in a northerly direction, there is a wall or bank, the height of which increases the further one goes down the steps in a northerly direction, which retains that concrete pool and Paved Area. The main drainage pipe of the house runs parallel to the concrete path, a…

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 Malliate v Sharpe

Details

AGLC: Malliate v Sharpe [2001] NSWSC 1057
Case: [2001] NSWSC 1057
Decision Date: 13 December 2001

CaseChat Overview and Summary

Malliate v Sharpe involved a dispute between the plaintiff, Malliate, and the defendant, Sharpe, concerning a tree planted by Sharpe on his property, which was causing damage to Malliate's adjacent property through its roots. The case was heard in the Supreme Court of Victoria. Malliate sought an injunction to compel Sharpe to remove the tree, arguing that it constituted a nuisance.

The primary legal issue before the court was whether the tree roots encroaching upon Malliate's land constituted a nuisance and, if so, what form of order would be appropriate. The court had to determine if the nuisance was actionable and whether a mandatory injunction requiring the removal of the tree was the appropriate remedy. The court needed to consider the principles of nuisance, including whether the interference with Malliate's land was substantial and unreasonable, and if Sharpe had adopted or continued the nuisance.

The court found that the tree roots were indeed causing a nuisance to Malliate's property, constituting an unreasonable interference. It was held that the nuisance was both substantial and actionable. However, the court determined that a mandatory injunction requiring the removal of the tree was not the most appropriate remedy in this case. Instead, the court issued an interlocutory injunction, ordering Sharpe to take reasonable steps to mitigate the nuisance caused by the tree roots, such as trimming or removing them to a depth that would prevent further encroachment on Malliate's property. The court emphasised the need for a balanced approach, taking into account the interests of both parties and the feasibility of the proposed measures.

Orders