Nguyen & Le v Davies - [2011] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
NGUYEN & LE v DAVIES
[2011] SADC 63
Reasons for Decision of His Honour Judge Beazley
6 May 2011
TORTS - NUISANCE - DEFENCES - GENERALLY
TRESPASS TO LAND - EASEMENTS - REAL PROPERTY - ABATEMENT OF NUISANCE
Application for Minor Civil Review of decision of a Magistrate pursuant to Section 38 of the Magistrates Court Act – neighbourhood dispute – plaintiffs assert that defendant unlawfully interfered with the plaintiffs wall which abutted the boundary with the defendant’s property – self help to remove graffiti from wall facing the entrance to the defendant's property - the plaintiffs asserted that the defendant had committed a trespass by inserting bolts into subject wall, and in painting the exterior of the wall – further asserted that the defendant had caused an inflow of water into the plaintiffs' dwelling; and that damage was caused to the plaintiffs' “earth electric system” - finally the plaintiffs asserted that the defendant had breached their "right to light".
Minor Civil Review – the learned Magistrate concluded that judgment ought to be entered for the defendant – whether plaintiffs' claim ought to have been dismissed – purpose and objects of Section 38 of the Magistrates Court Act 1991 considered – complaint by plaintiffs that Magistrate erred in failing to give detailed reasons for conclusions reached.
Held: Application for review dismissed.
Magistrates Court Act 1991 s 38; Law of Property Act 1936 (SA) s 22; Graffiti Control Act 2001 (SA) s 12, referred to.
Ventrice v Ipseftel [2008] SADC 147; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Abrahams v Flynn & Anor (1994) BC9503225; Wheeldon v Burrows (1879) 12 Ch.D.31; Bolton v Clutterbuck [1955] SASR 253; Averbach v Beck (1985) 6 NSWLR 424; De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498; Young v Wheeler [1987] Aust Torts Rep 68,966; Owners SP 30339 v Torada Pty Ltd [2008] NSWSC 1154; Yandle v Done [2011] 1 NZLR 255; Fox v Percy (2003) 214 CLR 118; Burton v Winters [1993] 1 WLR 1077; Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201; Hutchens v City of Holdfast Bay [2007] SASC 238; Plenty v Dillon (1991) 171 CLR 635; Sedleigh-Denfield v O'Callaghan [1940] AC 880, considered.

NGUYEN & LE v DAVIES
[2011] SADC 63
Introduction

This is an application by Thanh Ngoc Le and Thinh Xuan Nguyen (the applicants) for this Court to review a judgment delivered in a Minor Civil Action pursuant to s 38 of the Magistrates Court Act 1991 (the Act). The applicants were the plaintiffs in action number 7917 of 2008 in the Magistrates Court in which Tony Davies was the defendant (the respondent).
On 27 November 2009 following the delivery of ex tempore reasons, a Magistrate dismissed the applicants’ claim, and ordered that the applicants pay the respondents costs of the proceedings fixed at $700.
The application raises some complex questions of law. They were not all properly raised before the learned Magistrate because of the vague pleadings in the action. Amongst them are whether:
·there subsists in South Australia a right of “access to light” in respect of any building.[1]
·a registered proprietor of neighbouring land may remove graffiti from a neighbour’s residential wall in circumstances where that wall is contiguous with the boundary between the respective properties, and fronts the entrance to the neighbouring land.
·a cause of action vests in the owner of the boundary wall in trespass or nuisance for work undertaken by a neighbour in respect of that wall.
·any unsightly condition of the boundary wall could vest in the neighbour a cause of action in nuisance such as to permit the neighbour, by self help, to abate that nuisance.[2]
·the Graffiti Control Act (SA) 2001 had any relevance to the subject dispute.
[1] See Law of Property Act, 1936 (SA) s 22. Contrast Property Law Act, 2007 (NZ) s 33; Yandle v Done [2011] 1 NZLR 255
[2] cf Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201; and Hutchens v City of Holdfast Bay [2007] SASC 238
The genesis of the proceedings was a dispute between neighbours as to the erection of a carport. It was a matter which ought to have been capable of resolution as a Development Act application to the City of Prospect in June 2004.
The resolution of what objectively was a simple dispute for damages for “self help” on the pleadings has become unnecessarily complex in consequence of the respective positions taken by the parties.
The proceedings have had a long and somewhat vexed history. It will therefore be necessary to set out the history in some detail to fully comprehend the basis of the learned Magistrate’s decision.
On an Application for Review, this Court is obliged, pursuant to s 38(7) of the Act to act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The clear policy in the Act is to provide an efficient and economical means by which small claims can be determined. Unfortunately the intention behind that policy was not achieved in the subject case.
At the completion of their respective arguments the parties were invited to consider whether they should adopt a practical means of resolving the subject and only future disputes. Having heard nothing from the parties I now publish my reasons for dismissing the Application for Review.
Given the vehemence of the criticisms by the applicants of the learned Magistrates findings it is appropriate that I ought explain in some detail my reasons with respect to each issue raised by the applicants.
The decision of this Court is final, and not subject to appeal.
Factual Background
The applicants and the respondent are the respective registered proprietors of residential properties which abut each other on Churchill Road at Prospect. The boundary between the respective properties is defined by the wall of the applicants’ residence. There was however an unresolved issue as to whether the boundary wall in fact encroached upon the respondent’s property.[3] On the respondent’s side of the applicants’ wall is the respondent’s driveway which abuts the applicant’s boundary wall on one side and the respondent’s residence on the other.[4] When exiting the front door of his residence, the respondent’s view was of the wall of the applicants’ residence.
[3] See transcript, 2/3/10 at p 19
[4] Photograph Ex D1
Evidence accepted by the learned Magistrate was that the wall was from time to time defaced by graffiti, which the defendant cleaned in order to maintain the amenity of his property.
At a point most distant from the road, the applicants’ residential wall contained a window which they asserted provided light to an interior room in their residence.
In 2004, without Development Approval, the respondent cleared and concreted the driveway contiguous with the applicants’ wall, and erected a carport structure abutting the applicants’ wall. Having received notice from the City of Prospect of a breach of the Development Act,[5] the respondent made an application for approval on 18 June 2004.
[5] Ex P4 - letter dated 2/6/04
That ex post facto approval was granted by the City of Prospect on 15 July 2004 for the erection of a freestanding roller door, and roof at the end of the driveway.[6]
[6] Ex D4
The applicants asserted that the approval ought not to have been granted. They had asserted in correspondence to the Council in early 2004 that:
·The roller door is not freestanding but is bolted to the applicants’ wall.
·The enclosure of the roller door garage has prevented the light entering the window at the rear of their residence.
·The angle of the roller door has led to storm water running into an open vent in the applicants’ residence.
The respondent in correspondence denied those assertions and maintained that it was a free-standing roller door and roof which was attached to his existing pergola on the respondents’ property, and was not connected to the applicants’ boundary wall. He relied upon the development approval granted by the City of Prospect.
The applicants also asserted, and it is not disputed by the respondent, that the respondent, without their permission, had painted part of their boundary wall on the respondents’ side of the boundary. The respondent asserted that he undertook, at his own cost, that painting, as he had done on previous occasions, so as to remove graffiti which had been applied by vandals to that wall. That graffiti was on that side of the wall facing his property, and was an eye sore to him allegedly affecting his amenity of life.
There was ongoing correspondence between the applicants and the City of Prospect until by letter dated 17 October 2008,[7] the applicants were advised by the Council that:
The issue of light and ventilation is one that you may need to address through alternative solutions, such as a ventilated skylight. As previously advised, the verandah is an approved structure and Council cannot order its removal or relocation, as you request.
As previously advised, the verandah was approved as a free-standing structure and an inspection undertaken by Council’s building officer revealed that it is not attached to the boundary wall.
As previously advised, stormwater disposal from the site has been established and maintained. If concerns surrounding damp remain, you may consider engaging the services of a licensed builder for advice on how this may be rectified.
The painting of, and any incidental damage to, the boundary wall is a civil matter between you and your neighbour.
I appreciate that you would like assistance from Council in resolving the issues you have raised in your correspondence. Nonetheless, I reiterate my previous advice that Council staff are not empowered under the Development Act 1993 to follow up on matters where no breach of the Act has occurred. Further, the majority of the concerns you raise are civil matters to be resolved between neighbours. …
[7] Ex P3
The applicants elected to institute the subject proceedings upon receipt of that correspondence.
Finally, as part of the construction work, the respondent had paved, with concrete, his driveway. It was asserted by the applicants that, in so doing, an earth cable, which included a regular earth wire to protect the electricity supply in the applicants’ house, had been damaged or removed.
Whatever was the true position with that cable, there was no dispute that it was situated on the respondent’s property and prima facie, constituted a trespass by the applicant’s.
The Proceedings in the Magistrates Court
On 20 November 2008 the applicants instituted proceedings in the Magistrates Court seeking damages against the respondent in consequence of the alleged damage to their property. The particulars of that claim were rather vaguely pleaded.
Screw many bolts on our wall; Damage the earth electric; Damp our wall; Graffiti on the wall of building; Built the verandah – roller door cover so our room is lost of sunshine; Hollow out our wall basement (wall-leg) along our building.
The total damage claimed by the applicants was the sum of $5,800 alleged to be:
·$1,500 to “fix holes on the basement wall legs of the boundary wall”;
·$1,000 to connect the ‘earth electric system’;
·$1,600 to repair ‘the wall (room side) damaged by storm water’;
·$1,700 to ‘paint the site of the wall graphitised by (the respondent).’
The respondent, by his defence, filed on 11 December 2008, denied the applicants’ assertions. He pleaded that the roller door and roof had been constructed in July 2004 some four years previously, and that it had been built in accordance with the approval of the City of Prospect and was free-standing and was not connected to the applicants’ wall. He denied that any damage was caused to the applicants’ conduit cable or any “earth electric” when the driveway was resurfaced in 2004.
He denied that any water had escaped from his pergola to the applicants’ property and further denied having caused any damage to the “basement of the boundary wall”.
He acknowledged having painted the boundary wall, but asserted that he did so because vandals had trespassed across his driveway to place graffiti on the wall thereby visually adversely impacting upon his enjoyment of his property.
The Hearing in the Magistrates Court
Preliminary Matters
·On 6 February 2009, a Magistrate determined that the only way to resolve the respective assertions of the parties was to appoint an independent building expert to inspect the premises and provide a report to the Court.
·The applicants “filed” a series of photographs which they asserted disclosed “hidden bolts” affixing the verandah to their wall; alleged dampness on their wall; “hollowed out” sections of their wall; and the presence of their electric “earth” wire.
·The respondent filed a submission dated 12 May 2009 denying the applicants’ assertions and alleging trespass by the applicants in taking the photographs.
·On 5 June 2009, a Court appointed expert, John Robinson, attended the respective properties in the presence of the parties.
·On 9 June 2009 Mr Robinson provided a written report to the Court generally supportive of the respondent’s case.
·On 20 July 2009 a Magistrate ordered Mr Robinson to further inspect the respective properties and provide a supplementary report directed to the applicants’ asserted loss of light.
·On 25 August 2009 Mr Robinson provided the supplementary report.
The Trial on 27 November 2009
The applicants
The applicants Mr Nguyen and Ms Le both gave evidence. Each took issue with the opinions expressed by Mr Robinson, who had concluded that the roller door assembly was free standing. In his opinion there was no possible way in which timber posts could be affixed to a wall without the bolts being disclosed. Mr Nguyen said that he had used a “metal detecting machine” which satisfied him that bolts had been used by the respondent. The applicants pointed to dampness behind a piece of handiflex on the interior wall of their residence. Mr Robinson had expressed the opinion that dampness at that point was “some distance away” from any work undertaken by the respondent, and could not have been caused by the respondent.
As to the “electrical earth wire” Mr Robinson did not accept that it was in fact an “earth wire”. In any event by reference to the boundary survey, he pointed out that such wire, and, indeed the applicant’s electrical junction box, had encroached upon the respondent’s land.
As to the hollowing out of the base of the wall Mr Robinson was unable to say how or when that hollowing out had occurred, but again raised issues of encroachment by the applicants.
As to the suggestion of graffiti, Mr Robinson described the wall as of Besser Block construction which needed a minimum of three coats of acrylic paint to weather proof it.
Finally as to the loss of light, Mr Robinson concluded that:
the window was small; appeared not to have been opened for decades, and that it was unclear whether it would ever get sunlight even had the roller door not been built.
The respondent Mr Davies gave evidence denying that any bolts were used, and restating that the roller door was free standing.
The hearing began to break down with the respective parties interrupting each other.
The learned Magistrate determined that a view should be taken and adjourned the hearing to enable it to take place.
Following that view the learned Magistrate suggested to Mr Nguyen that the view supported the opinion expressed by Mr Robinson and provided no support to the applicant’s case.
The applicants maintained their assertions, and expressed the opinion that they were not being given a fair hearing. Mr Nguyen accepted that he had suffered no loss in consequence of the wall having been painted.
The respondent
The respondent, Mr Davies gave evidence that the wall had been “graffitied” numerous times over a seven year period. He said that the applicants had allowed the wall to become filthy, and consequently had adversely impacted upon the amenity of his property. He asserted that he had painted out the graffiti without complaint previously. On this occasion he had, at his own expense, chosen the City of Prospect heritage colours which would have been used by the Council, had it determined to use its powers under the Graffiti Control Act, in any event.
He asserted that the chipping of the base of the wall had predated the work undertaken by him. Finally he denied that the wire on his driveway was an earth wire, and stated that the box on his property was not a fuse box. He asserted that the defendant’s wall had encroached upon his property.
The respondent called a roofing supervisor Steven John MacDonald as a witness.
Mr MacDonald told the Court of his extensive history in the building industry over 25 years. He described tests undertaken by him with a hand saw, in respect of the roller door.
He said positively that the roller door was free standing and not fixed by any bolts to the applicant’s wall.
He gave evidence that the subject cable was not an earth cable. He denied that any water could escape from the respondent’s pergola to the applicants’ wall; and denied that there was any water or dampness entering the applicants’ internal walls, from the respondent’s property.
He denied the assertion that the bottom of the wall had been hollowed out during construction.
The applicants were critical of the role and expertise of Mr MacDonald, and referred to the fact that the building work was done initially without Council approval.
The Magistrates Ex Tempore Reasons – delivered 27/11/09
The learned Magistrate found in the respondent’s favour on each of the issues:
·Her Honour accepted the evidence of Mr MacDonald, the respondent and the independent expert Mr Robinson, that the pergola/roller door was freestanding and that no bolts had been inserted into the applicants’ wall.
·As to the “earth cable”, Her Honour accepted the evidence of Mr Robinson and Mr MacDonald and held that the applicants had not produced any evidence that the cable was an earth wire, nor that it had been damaged by the respondent.
·As to the alleged dampness Her Honour concluded that “there is no shred of evidence provided to me by the plaintiffs in that regard”.
·As to the question of “graffiti” the learned Magistrate held that at its highest the applicants’ complaint was that the painting, was done without their approval and without consulting them as to colour. She concluded that the painting was ultimately of benefit to the applicants, and saved them the cost of water proofing the wall. She concluded that “I therefore find that there was no negligence on the part of the defendant and no loss sustained by the plaintiffs”.
·As to the “loss of light or sunshine”, the learned Magistrate concluded that in fact light did filter through the applicants’ window. However she felt constrained to cease to address this issue as she “had reservations as to whether the Magistrates Court is the right jurisdiction for that issue to be determined”.
·As to the “chipping or hollowing out” of the base of the applicants’ wall, the learned Magistrate accepted the evidence of the respondent that he had not caused that damage, and that it pre-dated the subject work. Her Honour did however add that it was “not caused by any negligence by the respondent”.
·As to any dampness the learned Magistrate concluded that she was not satisfied that any dampness, if it existed, was caused by the respondent.
·Accordingly the learned Magistrate dismissed the applicants’ claim and ordered that the applicants pay to the respondent the costs of action which she fixed at $700 which included the sum of $400 as the witness fee for Mr MacDonald.
Application for Review – dated 14 November 2009

The applicants, in their Application to Review the decision of the learned Magistrate, repeated each of the arguments which had been put by them before that Court. In very detailed grounds they complain that the respondent had trespassed and “disrespected their property rights”. They complained that the learned Magistrate had accepted the evidence given by or on behalf of the respondent and asserted that no weight had been given to their oral evidence nor to the photographs which had been tendered by them. They asserted that they had been treated unfairly by the learned Magistrates Court during the hearing.
In support of the Application for Review they tendered a detailed written submission dated 30 December 2009; an extract of the Graffiti Control Act 2001; and a further detailed outline of argument entitled “where is the justice and clairvoyance?”
While many of the assertions in those documents disclose a misunderstanding as to the law, the essence of the complaints was that the learned Magistrate ought to have concluded that the respondent had trespassed upon the applicants’ property causing damage to the applicants’ wall and had caused salt damp and the loss of sunlight. The applicants complained that the learned Magistrate had erred in failing to give detailed reasons for the conclusions which were reached.
The Hearing on Review
The applicants
The applicants are clearly highly intelligent individuals who felt aggrieved by the failure of the respondent to approach them before commencing the work in 2004.
At the commencement of the hearing I explained to the applicants the nature of their application. I have no doubt that they understood that pursuant to s 38 of the Magistrates Court Act there was a need to establish that the learned Magistrate had made an error of fact or law; or reached a finding not properly open to her on the evidence, or that there was some other reason why I ought interfere with the findings made by her. Notwithstanding that need the applicants proceeded to criticise each of the findings made by the learned Magistrate and simply repeated the evidence that they had given before her.
They explained that in relation to the painting of the wall they felt “violated” because the respondent had simply painted it a colour of his choice without consulting them. They explained that they had attempted to resolve all issues with the respondent, however once the approval had been given by the City of Prospect no resolution could be made.
They sought orders that the colour of the wall be repainted from its present colour to its original colour of white and that the roller door verandah be removed in order to enable them to recover the sunlight which they previously had received through their window.
They also sought orders for the removal of all bolts which they maintained were in the wall, and that the respondent pay an electrician to ensure the effectiveness of the “electrical earth”. They asserted that the Council should never have permitted the erection of the carport so as to block their window. They complained that irrespective of the factual findings, the acts of the respondent constituted a trespass to their land, and they were entitled to a remedy at law.
The respondent
The respondent briefly referred to the evidence which he had given before the learned Magistrate and relied upon the findings of the learned Magistrate.
Discussion
From time to time during the hearing the learned Magistrate felt compelled to interrupt the applicants. I have no doubt that Her Honour was attempting to assist the applicants to concentrate upon the matters relevant on the pleadings. There is simply no basis for any complaint as to the manner in which the hearing was conducted. Her Honour did all that was possible to understand the issues between the parties.
As to the question of not giving specific reasons for a finding, McHugh J for the Court of Appeal in NSW in Soulemezis v Dudley (Holdings) Pty Ltd[8] said:
What is decisive is that his Honour’s judgment reveals the ground for, although not the detail reasoning and support of, his finding of fact. That is enough in a case where no appeal lies against the finding of fact. Accordingly, there was no failure to give reasons sufficient to constitute an error of law.
[8] (1987) 10 NSWLR 247 at 282
The learned Magistrate had delivered reasons in a very practical manner so that it could be understood by the parties. There was no need to identify particular causes of action, or explain the law in any respect.
In the case of Fox v Percy (2003) 214 CLR 118 at [23] the High Court said:
Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.
(Footnotes omitted)
In my opinion there is no proper basis for any complaint as to such of the findings of fact as made by the learned Magistrate. While I had some initial concerns that the learned Magistrate may have relied solely upon her own observations on the view[9] it is apparent that in reaching her findings the learned Magistrate relied upon the evidence of Mr MacDonald, the respondent and the independent expert Mr Robinson which evidence she found to be reliable.
[9] Contrast Fielke v Municipal Tramways Trust (1944) SASR 235
I have noted that the learned Magistrate referred to the respondent “not having acted negligently”. The fact is that he acted intentionally in painting the wall and concreting the driveway. Ultimately however the suggestion of negligence is irrelevant to the issues to be decided in the subject case.
Putting to one side for the moment two matters of law involving the alleged right to sunshine and the painting of the wall the findings of fact made by the learned Magistrate were not merely open to her but inevitable.
I turn now to each of the issues raised by the applicants before the learned Magistrate and before this Court on the Applicant for Review.
The bolts in the wall
·I have no doubt that the applicants genuinely believe that bolts were inserted into their wall during the construction of the pergola/roller door. However save for the evidence of the male applicant as to his use of a metal detector the evidence was overwhelming that no bolts had in fact been affixed.
The “earth wire”
·As to the alleged earth wire, there is no doubt that a cable was located in the respondents driveway when it was being paved. However the learned Magistrate was, with respect, quite justified in concluding that there was no evidence as to the type of cable, its use or as to the damage allegedly caused to it. In light of those findings based upon the learned Magistrate’s acceptance of evidence of Mr MacDonald, it is simply not open to this Court to interfere with those findings. They were clearly open to the learned Magistrate. Her Honour did not need to consider the undisputed evidence that the cable was located on the respondent’s property, and constituted a trespass by the applicants.
Dampness
·As to the question of dampness there is no doubt that the common law recognises a claim in nuisance causing water penetration, but only if the applicant’s could have established the source of any such water.[10] The learned Magistrate preferred the evidence of the independent expert Mr Robinson. The finding that there was no evidence of dampness caused by the respondents work was open to her. It would be entirely inappropriate for this Court to reach any other conclusion given the position of the Magistrate in having heard the witnesses.
[10] See Sedleigh-Denfield v O'Callaghan [1940] AC 880
I turn then to the two issues in respect of which the applicants assert that the learned Magistrate was wrong in law.
Alleged loss of sunshine
The learned Magistrate had accepted the opinion expressed by the independent expert Mr Robinson, that the small window in question had not been open for decades. He had said that it was uncertain as to whether light or sunshine would have entered that window irrespective of the erection of the pergola. The learned Magistrate however declined to make any findings on the issue, expressing doubts as to the jurisdiction of the Court to determine that issue. The learned Magistrate did not explain the basis of that lack of jurisdiction.
I assume that she may have felt that the question of light or sunshine ought to have been considered at the time of the development application before the City of Prospect. In Hutchens v City of Holdfast Bay,[11] Debelle J. considered an appeal under the Development Act, with respect to the preservation of existing views. His Honour noted the absence of any specific common law rights, however said that “the introduction of planning controls [under the Development Act] has provided a means of which those who enjoy pleasant views [and light] may take steps to prevent the construction of a building which obstructs those views”. The question of “light” or views was not resolved in favour of the applicants when the Development Application was considered by the City of Prospect.
[11] [2007] SASC 238
The learned Magistrate ought not to have declined to determine the common law issues.
In my opinion the matter can be dealt with simply. Section 22 of the Law of Property Act, (SA), 1936, as and from 26 October 1911, provides that:
“no right to the access or use of light to or for any building shall be capable of coming into existence by reason only of the enjoyment of such access or use for any period of time or of any presumption of lost grant based upon such enjoyment”.
Further while easements of necessity may be created in respect of certain rights an easement of light cannot be claimed as of necessity as it has been held that a room can always be used without such light[12].
[12] Ray v Hazeldine (1904) 2 CH 17 at 20 per Kekewich J.
The painting of the wall
The applicants had based their claim upon the Graffiti Control Act, 2001, on the misunderstanding that the painting by the respondent had constituted graffiti. They had not asserted a cause of action in either nuisance or trespass in their pleadings. They did however assert a claim in trespass on the Application for Review. I will deal now with any potential claims in trespass and/or nuisance.
The applicants assert their entitlement to recover damages for the painting of the wall even though on Her Honour’s findings, the wall has been improved by the work of the respondent. In Plenty v Dillon,[13] the High Court held that a party may, in certain circumstances be entitled to have his right of property vindicated by a substantial award of damages even if there is no proof of damage.
[13] (1991) 171 CLR 635 at 654-5
In other cases it may be appropriate to award merely nominal damages.[14] The applicants complain that the learned Magistrate had erred factually in finding that the respondent had painted over graffiti. They assert that he had flagrantly disregarded their rights by treating the wall as his own, and had painted a small section, simply to blend in with the colour of his roller door. They submitted that they ought be awarded substantial damages.
[14] Prentice v Mercantile House Pty Ltd (1991) 99 ALR 107
The difficulty with that submission is that it ignores the findings of fact made by the Magistrate, who had accepted the evidence of the respondent that the wall which faced his premises was in a filthy state and marked with graffiti.
The respondent could have complained to the City of Prospect and requested it to enter the property pursuant to s 12 of the Graffiti Control Act, 2001; and take such action as was necessary to remove or obliterate the graffiti on the property which was visible from a public place. In those circumstances it is probable that the Council would have insisted that the graffiti be removed by the applicants as the owners of the relevant property. There is no doubt that the Magistrate had approached this issue on a practical basis, as she was required to do in respect of a Minor Civil claim. She had properly concluded that the respondent had saved the applicants from having to expend significant sums of money to remove the graffiti, and to waterproof the wall.
However, as the High court had said in Plenty v Dillon, prima facie a trespass had occurred, and it is no answer to say that the applicants or the public were better off. It is necessary to consider whether there were any defences open to the respondent.
I have already noted that there was an unresolved dispute as to whether the boundary wall had encroached upon the respondent’s land. If it were the case then it would have been the applicants who were prima facie liable in trespass for that encroachment.[15] In a recent decision in the County Court of Victoria, based upon a similar factual set of circumstances, the Court declined to order the removal of any painting on an encroaching wall.[16]
[15] See Owners SP 30399 v Torada Pty Ltd [2008] NSWSC 1154
[16] Berengo v Menelle [2010] VCC 330
However it is trite that self help to overcome a trespass by encroachment could rarely be justified.[17] The law recognises, in some cases, a defence of necessity which may create an immunity from liability in tort for a party who intentionally interferes with a property of another if that interference is reasonably necessary as a means of protecting that person or his property from the threat of real and imminent harm. It is not sufficient to show that it was merely convenient to do the work. Those circumstances do not arise in the subject case. See Abrahams v Flynn[18]. The learned Magistrate accepted the evidence of the respondent that he had on previous occasions undertaken the same type of work namely the removal of graffiti without complaint from the applicants. It may be that such would give rise to an implied licence to undertake the work on that wall. The respondent’s case was that it was the applicants who ought be liable in nuisance for permitting the wall to be in such a state that it adversely impacted on the respondents amenity. If such a claim in nuisance were established the respondent would have been entitled to abate such a nuisance, by an act of self help of painting[19].
[17] Burton v Winters [1193] 1 WLR 1077
[18] (1995) Supreme Court of Victoria BC 9503225
[19] See Burton v Winters [1993] 1WLR 1077 at 1081; Owners S.P. 30339 v Torada Pty Ltd [2008] NSWSC 1154
Although in the past the law did not readily recognise an actionable right to preserve amenity,[20] it may be that the Courts are now more inclined to permit a party in the position of the respondent to preserve the amenity of his property.[21]
[20] See Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201
[21] See The Laws of Australia vol 33 at 33.7.220 and Victoria Park Racing & Recreation Grounds v Taylor (1937) 58 CLR 479
The question for this Court is whether the Application for Review ought be permitted for these matters to be further explored.
The fact remains that the action proceeded before the learned Magistrate on the basis that the respondent had breached the provisions of the Graffiti Control Act and these matters were not fully explored. These events arose some 7 years ago in 2004, and ought to have been resolved in the development application.
In my opinion any finding in favour of the applicants would not have resulted in an order for other than nominal damages and would not have required the repainting of the wall. It would not have affected the findings of fact nor the decision of the learned Magistrate as to the order for costs.
Ultimately the learned Magistrate dealt appropriately with a Minor Civil Review, which required a practical determination of the issues raised by the parties.
In my opinion the Application for Review ought be dismissed.
Conclusion
The findings and orders made by the learned Magistrate ought not be interfered with. There is no basis for the complaints which have been made by the applicants. Accordingly, pursuant to s 38(7)(d) of the Act I affirm the judgment and orders of the learned Magistrate and dismiss the Application for Review.
Costs
Pursuant to Rule 6 DCR 279A of the Rules of Court, the Court has a general discretion to make an order for costs of the Review. I note also that pursuant to s 38(5) the philosophy of Parliament is that in Minor Civil Actions costs are not to be awarded unless there are special circumstances justifying the award of such costs.
In my opinion in the subject case there is no proper basis for an order save that each party bear his or her own costs of the Application for Review.
The formal orders of the Court therefore are:
1. That the decision of the learned Magistrate is affirmed.
2. The Application for Review is dismissed.
3.That each party bear his or her own costs of the Application for Review.