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Owners Strata Plan 4085 v Mallone

Owners Strata Plan 4085 v Mallone

Case [2006] NSWSC 1381 13 December 2006

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CITATION: Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381

HEARING DATE(S): 18/10/06

JUDGMENT DATE :
13 December 2006

JURISDICTION: Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Defendant liable to contribute to the abatement of the continued nuisance from her land involving rocks falling onto the plaintiff's land. Each party to pay their own costs.

CATCHWORDS: TORTS [171]- Nuisance- Rocks falling from defendant's land onto common land of body corporate- Not caused by defendant- Continued nuisance- Mandatory quia timet injunction- Duty to take reasonable care to abate nuisance- Scope of duty based on facts and circumstances- Defendant has limited finances- Rocks also falling from plaintiff's property- Plaintiff has not mitigated damages- Substantial cost to defendant of abating nuisance- Uncertain effectiveness- Defendant not to take all necessary steps, only those that are reasonable in the circumstances- Defendant to contribute some funds and to act reasonably in co-operation with plaintiff.

LEGISLATION CITED: Civil Liability Act 2002, s 35(1)(b)
Strata Schemes Management Act 1996, s 227

CASES CITED: Attorney General for Canada v Ritchie Contracting and Supply Co Ltd [1919] AC 999
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660; 79 ALJR 1511
Bonnici v Ku-ring-gai MC (2001) 121 LGERA 1
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
Economy Shipping Pty Ltd v ADC Building Pty Ltd [1969] 2 NSWR 97
Giles v Walker (1890) 24 QBD 656
Goldman v Hargrave (1966) 115 CLR 458
Hargrave v Goldman (1963) 110 CLR 40
Hornsby SC v Danglade (1928) 29 SR (NSW) 118
Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341
Lambton v Mellish [1894] 3 Ch 163
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485
Noble v Harrison [1926] 2 KB 332
Owners-Strata Plan 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169
Pontardawe Rural District Council v Moore-Gwyn [1929] 1 Ch 656
Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478
Redland Bricks Ltd v Morris [1970] AC 652
Richmond City Council v Scantelbury [1991] 2 VR 38
Sedleigh-Denfield v O'Callaghan [1940 AC 880
Sparke v Osborne (1908) 7 CLR 51
Sturges v Bridgman (1879) 11 Ch D 852
Thorpe v Brumfitt (1873) LR 8 Ch App 650
Torette House Pty Ltd v Berkman [1939-1940] 62 CLR 637
Yared v Glenhurst Gardens Pty Ltd (2002) 10 BPR 19,485

PARTIES: Owners Strata Plan 4085 (P)
Magda Mallone (D)

FILE NUMBER(S): SC 3443/06

COUNSEL: M Cashion SC and M A Izzo (P)
C Birch SC and J Gruzman (D)

SOLICITORS: Harris Freidman Hyde Page (P)
AWM Dickinson & Son (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 13 December 2006

3443/06 – OWNERS STRATA PLAN 4085 v MALLONE

JUDGMENT

1 HIS HONOUR: In this unfortunate case, the plaintiff is likely to suffer damage to its building through rocks falling off an area of a cliff face which is owned by…

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 Owners Strata Plan 4085 v Mallone

Details

AGLC: Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381
Case: [2006] NSWSC 1381
Decision Date: 13 December 2006

CaseChat Overview and Summary

The case of Owners Strata Plan 4085 v Mallone involved a dispute between the plaintiff, a strata body corporate, and the defendant, a neighbouring property owner. The plaintiff alleged that rocks were falling from the defendant's land onto the common land of the strata plan, causing a nuisance. The defendant denied causing the rocks to fall and argued that the plaintiff had not mitigated its damages. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was the scope of the defendant's duty to abate the nuisance caused by the falling rocks. The court had to determine whether the defendant had a duty to take all necessary steps to prevent the rocks from falling, or whether the duty was limited to taking reasonable steps based on the facts and circumstances of the case. The court also had to consider the defendant's limited financial resources and the uncertain effectiveness of any measures taken to abate the nuisance.

In its decision, the court held that the defendant had a duty to take reasonable care to abate the nuisance caused by the falling rocks. The scope of the duty was based on the facts and circumstances of the case, including the defendant's limited financial resources and the uncertain effectiveness of any measures taken to abate the nuisance. The court found that the defendant was not required to take all necessary steps to prevent the rocks from falling, but only those that were reasonable in the circumstances. The court also held that the defendant should contribute some funds towards the cost of abating the nuisance and act reasonably in co-operation with the plaintiff.

The court made a declaration that the defendant had a duty to take reasonable care to abate the nuisance caused by the falling rocks. The defendant was ordered to contribute some funds towards the cost of abating the nuisance and to act reasonably in co-operation with the plaintiff. The plaintiff was ordered to mitigate its damages by taking reasonable steps to prevent the rocks from falling from its own property.

Orders