Nadinic v Fotopoulos
[2009] VSC 554
•20 NOVEMBER 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 10240 of 2009
| ANDREW FRANK NADINIC | Plaintiff |
| v | |
| FOTIOS FOTOPOULOS | Defendant |
---
JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 NOVEMBER 2009 | |
DATE OF JUDGMENT: | 20 NOVEMBER 2009 | |
CASE MAY BE CITED AS: | NADINIC v FOTOPOULOS | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 554 | |
---
Injunction – Interlocutory – Dispute between neighbours over fence on the boundary between their properties – Auction of plaintiff’s property about to be held – Fear that auction will be disrupted by defendant raising issue of boundary dispute – Possible financial loss to plaintiff as a result – Injunction granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T.R. Messer | Ross Millen Lawyers Pty Ltd |
| For the Defendant | Mr S.G. Hopper | Tasiopoulos Lambros & Co Solicitors |
HIS HONOUR:
This is an application for an injunction to restrain the defendant from attending or disrupting an auction due to be held tomorrow.
The plaintiff is the owner of a property at 8 Moss Street, Prahran and the defendant is the owner of the property at 10 Moss Street, Prahran.
The evidence before me would appear to show that an old fence was erected on the boundary between those two properties in part intruding on to the defendant's land to the extent of between and nine and 11 centimetres for an uncertain, but not very long, distance.
Recently when the plaintiff was carrying out renovations to his own place, the old fence was removed and a new fence placed in the same position. As a result of surveys being carried out, this situation concerning the difficulty with the boundary was revealed.
At this stage, of course, the plaintiff is unable to say how long the old fence had been in place, although it was described as being old and in poor condition.
The plaintiff also has a dispute with the defendant about some damage that was caused to the defendant's house when the renovations were being conducted and some offers have been made to reimburse the defendant for the cost of, or to assist him in repairing, those items of damage. Perhaps that has led to the current impasse between the plaintiff and the defendant.
The agent acting on behalf of the plaintiff, from the firm of Kay & Burton, was contacted by letter from the defendant's solicitors, which was received on 17 November 2009, stating that the real estate agent had a duty to inform any prospective purchaser of:
This dispute and the contents of our correspondence at the auction and prior to the execution of any contract of sale.
What I quoted from the letter followed what was said in the previous paragraph, that the defendant's claim was in trespass and nuisance as a result of the works carried out to the property at 8 Moss Street which had caused damage to the defendant's property and there was reference to the dispute in relation to the boundary between the two properties. Thus, although the defendant's solicitors seemed to be mixing the two disputes, there was at least a specific reference to the boundary dispute. This would suggest that it was the latter dispute which was the one that was being said should be brought to the attention of prospective purchasers.
On the day before the letter was received, two men attended on the estate agent seeking copies of the contract. The circumstances of that visit, which are set out in the plaintiff's affidavit which I will not repeat here, led the agent to believe that they were making inquiries on behalf of the defendant, particularly as they asked questions about the title boundary issue.
In addition to those steps, on 5 November 2009, the plaintiff received a letter from the defendant's solicitors demanding a response within 14 days, which having recited much of the history said:
We place you on notice that you should ensure that all prospective purchasers are made aware of our client's claim against you.
Insofar as that referred to the damage caused to the property, it was totally irrelevant to any prospective purchaser. Insofar as it referred to the boundary dispute, a prospective purchaser may well be interested in knowing about the claim, but it was really nothing to do with the defendant, in my view.
Subsequently, there was more correspondence between the solicitors for the plaintiff and the defendant including a letter from the defendant's solicitors on 19 November 2009, and I quote:
We maintain our advice that your client is obliged to inform potential purchasers of his property of our client's claim and he will ignore this obligation at his own peril. We intend to tender the correspondence at the appropriate time and it will be referred to in any litigation that is instigated. It is not a matter for you to say that our client's claim will not be brought to the attention of a potential purchaser based on your views in circumstances where there is a potential claim which may impact on a prospective purchaser of the property and may also result in the prospective purchaser being joined in any proceedings that will ultimately be issued.
The plaintiff's solicitors replied on the same day drawing attention to the statements:
We intend to tender the correspondence at the appropriate time
and
It is not a matter for you to say that our client's claim will note be brought to the attention of a potential purchaser.
They asserted that these statements carried on inference that the defendant or his agents intended to make statements at the auction, repeating his unfounded claims, with the intention of cancelling or causing a major disruption of the plaintiff's lawful public auction.
On 19 November 2009, there was a second letter from the defendant's solicitors saying:
We maintain that our client has a cause of action against your client in relation to the damage caused to our client's property and potentially our client will also have a cause of action against a prospective purchaser in relation to any loss and damage that continues on an ongoing basis. This is of course only stating the obvious. Presumably this creates an obligation on your client to notify a prospective purchaser that there may be potential litigation on foot. For you to then say that this carries on inference that your client or his agents intend to disrupt the auction is nonsensical. Accordingly your request for undertakings and threat of an application for injunctive relief is unwarranted.
This morning, at 9.49, an e‑mail was sent by the plaintiff's solicitors to the defendant's solicitors advising that they had instructions to issue a summons which would be returnable in the Practice Court at 2.15 this afternoon, and saying that the request for an undertaking was not unwarranted.
Mr Hopper of counsel has been briefed at the last moment and has put certain arguments to me on behalf of the defendant. I repeat what I said in the course of the argument. It seems a matter of great regret that notwithstanding that solicitors are acting on both sides, that a simple statement could not be made to the effect that, if it be the case, the defendant has no intention of disrupting the auction and undertakes that he would not do so. As a result of the failure to make such a statement, both parties have been put to costs of briefing counsel to appear in court this afternoon.
Notwithstanding Mr Hopper's submissions about the language used in the defendant's solicitor's first letter of 19 November 2009, I consider that these statements carry with it a threat that, if the plaintiff or his estate agent do not bring to the attention of the potential purchasers at the auction that there is this issue about the boundary, the defendant will do so.
Whether or not the vendor should alert potential purchasers to the boundary dispute is a matter that may result in later complaint by the purchaser, but it is not a matter in which the defendant has any legitimate interest, in my view. He may have a claim to have the fence placed on the correct boundary as against the owner of the land, whether it be the plaintiff/vendor or the purchaser. On the other hand, of course, he may now no longer have any such claim. That is a matter for the future.
What is of immediate concern is that if the defendant makes statements about the boundary dispute, potential purchasers may be frightened off from continuing to have an interest in the auction. All that they will know is that they have heard talk of litigation and disputes about boundaries without any opportunity to understand the rights or wrongs or the extent of it. That, obviously, has the potential to cause significant financial detriment to the plaintiff.
In those circumstances, I consider that, the defendant having in effect through this solicitors twice refused to give the undertaking sought, the plaintiff has made out a justifiable claim for injunctions to be granted and I propose to make an order in the terms of the first three paragraphs of the summons.
---
0
0
0