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Quick v Alpine Nurseries Sales Pty Ltd

Quick v Alpine Nurseries Sales Pty Ltd

Case [2010] NSWSC 1248 29 October 2010

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CITATION: Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248

HEARING DATE(S): 19-22 July 2010

JUDGMENT DATE :
29 October 2010

JURISDICTION: Equity

JUDGMENT OF: Ward J

DECISION: Plaintiffs' claim dismissed with costs

CATCHWORDS: PRACTICE AND PRCEDURE - adequacy of pleadings - HELD - claim in negligence has not been properly pleaded and cannot now be maintained - claim in nuisance is limited to pleaded allegations - TORTS - nuisance - whether substantial and unreasonable interference by the defendants with the rights of or in connection with the plaintiffs’ use of their land as a result of development and use of defendants’ land as commercial nursery - HELD - no unreasonable interference with use or enjoyment of land by defendants as pleaded

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Protection of the Environment Operations Act 1997 (NSW)

CATEGORY: Principal judgment

CASES CITED: Bayliss v Lea (1961) 62 SR (NSW) 521; [1961] NSWR 1002; (1961) 79 WN (NSW) 218
Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53; [1990] HCA 11
Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245
Bell v Pitt [1956] Tas SR 161
Bennetts v Honroth [1959] SA SR 170
Bone and Anor v Seale [1975] 1 All ER 787
Borough of Bradford v Pickles [1895] AC 587
Brand v Monks [2009] NSWSC 1454
Broadbridge Little v Holroyd (1935) LGR (NSW) 81
Brodie v Singleton Shire Council (2001) 206 CLR 512
Bruce v Odhams Press Limited [1936] 1 KB 697
Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264
Charter Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of stern Australia (1987) 13 FCR 413
City of Richmond v Scantelbury [1991] 2 VR 38
Corbett v Pallas (1995) 86 LGERA 312
Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Douglas v Swan (12 December 1950, unreported) CHECK
Elston v Dore (1982) 149 CLR 480
Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33
Goldman v Hargrave [1967] 1 AC 645
H 1976 Nominees Pty Limited v Galli (1979) 30 ALR 181
Hill v Van Erp (1997) 188 CLR 159
Hunter v Canary Wharf Ltd [1997] AC 655
Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653; (2008) 252 ALR 659; (2008) 68 ACSR 595; [2008] NSWCA 206
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (unreported, French J, Federal Court of Australia, 3 September 1991)
Kraemers v Attorney General (Tas) [1966] Tas SR 113
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485
McFadzean v CFMEU [2004] VSC 289
Melaleuca Estate Pty Ltd v Port…

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 Quick v Alpine Nurseries Sales Pty Ltd

Details

AGLC: Quick v Alpine Nurseries Sales Pty Ltd [2010] NSWSC 1248
Case: [2010] NSWSC 1248
Decision Date: 29 October 2010

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Quick brought an action against Alpine Nurseries Sales Pty Ltd, seeking damages for nuisance and negligence. The plaintiffs alleged that the defendants' operation of a commercial nursery on their adjacent property caused substantial and unreasonable interference with the plaintiffs' enjoyment and use of their land. The court had to determine whether the claims in negligence and nuisance were properly pleaded and, if so, whether the defendants' activities amounted to a nuisance.

The court held that the claim in negligence was not properly pleaded. The plaintiffs failed to set out sufficient facts to establish the necessary duty of care, breach, and causation. Consequently, the court ruled that the claim in negligence could not be maintained. Regarding the nuisance claim, the court found that it was limited to the allegations made in the pleadings. The plaintiffs' arguments were confined to the specific interferences stated in their initial complaint. The court determined that, based on the pleaded facts, the defendants' activities did not constitute an unreasonable interference with the plaintiffs' use or enjoyment of their land.

The court's reasoning focused on the adequacy of the plaintiffs' pleadings and the specific allegations made. The negligence claim was dismissed outright due to the lack of proper pleading. For the nuisance claim, the court applied the principle that a nuisance claim is restricted to the specific allegations in the pleadings. Given the evidence and arguments presented, the court found no substantial and unreasonable interference with the plaintiffs' land as pleaded.

The court ordered that the claim in negligence be dismissed. The nuisance claim was to proceed only on the basis of the pleaded allegations, with no allowance for additional arguments beyond what was specified in the initial complaint. The court did not award any damages for nuisance, as the plaintiffs failed to prove their case based on the pleaded facts.

Orders