Pietruszkiewicz v Whitfort (No 1)

DISTRICT COURT OF QUEENSLAND

CITATION:

Pietruszkiewicz v Whitfort (No 1) [2003] QDC 577

PARTIES:

ANTHONY JOHN PIETRUSZKIEWICZ and
CHIYOKO PIETRUSZKIEWICZ

Plaintiffs

v

CHRISTOPHER WHITFORT and
LEONIE JENNIFER WHITFORT

Defendants

FILE NO:

Plaint 3956 of 1998

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

19-22 March 2002

JUDGE:

McGill DCJ

ORDER:

Judgment that the defendants pay the plaintiffs $8,781

CATCHWORDS:

DAMAGES – Tort – Measure and remoteness – Trespass to land – cutting trees – consequential loss – exemplary damages.

Backwell v AAA [1997] 1 VR 182 – applied.

Carr v Sourlos (1994) 6 BPR 13,626 – considered.

Gazzard v Hutchesson (1995) Aust Torts Reports #81-337 – considered.

Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14 - applied.

Sanders v Snell (1997) 73 FCR 569 – applied.

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 – applied.

COUNSEL:

M R Roney for the plaintiffs

N S Philipson for the defendants

SOLICITORS:

Huddleston Solicitors for the plaintiffs

Groom & Lavers for the defendants.

1. This is an action for damages for trespass and conversion.  On and before 26 June 1998 a number of trees growing on land owned by the plaintiffs were cut down and the logs of most of them were removed from the plaintiffs’ land on to the defendants’ adjoining land.  Some of the timber so removed was subsequently used in the construction of a fence along the common boundary of the properties.  It is not now disputed that the defendants were responsible for cutting down the trees and removing the logs, and that the trees were cut down and the logs removed without the authority of the plaintiffs, or other legal justification: p 15.  Accordingly  the only matter in issue is quantum.  Nevertheless the trial took four days, during which evidence was taken from 13 witnesses.  What one might have expected at first glance to be a relatively straightforward exercise has thrown up a number of issues of fact and law of some complexity.

Background 

1. The plaintiffs were at the relevant time the owners of a parcel of land described as lot 85 on plan B34467 County of Bentinck, Parish of Pikedale.  It has an area of about 150 hectares and is almost square.  The land is situated just under 16 km outside Stanthorpe.  An aerial photograph of the land is Exhibit 1.  That shows that most of the land is covered with trees, although in some areas the trees have been largely, or in some places entirely, cleared.  There is a house by a dam in about the middle of the northern half of the block, but at the relevant time the plaintiffs were living in a house on adjoining land they owned to the north-east, which was closer to a road.  The trees the subject of the action were growing in the area towards the lower left-hand side of the photograph, an area marked on the photograph.