JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	7–9, 19–21 June, 26 July 2017
DATE OF JUDGMENT:	28 November 2017
CASE MAY BE CITED AS:	Rasco Pty Ltd v Lucas
MEDIUM NEUTRAL CITATION:	[2017] VSC 703

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TRESPASS—Trespass to land—Where defendant committed several and repeated trespasses to plaintiff’s land—Appropriate remedy—Prima facie entitlement to injunction—Plenty v Dillon (1991) 171 CLR 635.

INJUNCTIONS—Quia timet injunction—Where plaintiff seeks injunction to prevent future trespass—Whether defendant likely to cause immediate and substantial damage—Where ‘substantial damage’ means ‘real interference’ with plaintiff’s rights—Whether absolute and unambiguous injunction appropriate—Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428—Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311—Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272; [2012] FCA 748.

DAMAGES—Appropriate measure of damages—Damages for tort compensatory—Damages must be fair and reasonable—Where plaintiff entitled to return land to condition before defendant’s trespasses—Reinstatement damages awarded—Powercor Australia Ltd v Thomas (2012) 43 VR 220—Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2016] VSCA 187.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A R Morrison	KCL Law
For the Defendant	The Defendant appeared in person	Self-represented

HER HONOUR:

Introduction

The plaintiff, Rasco Pty Ltd (‘Rasco’), seeks against the defendant a quia timet injunction restraining him from entering or performing any activities on its property at 450 Mickleham Road, Attwood (‘the Rasco property’ or ‘the property’), damages calculated at $253 115 for rectification work arising from his unauthorised activity on the Rasco property, a declaration as to the boundaries of the Rasco property and costs.

The defendant’s activities on the property include trespassing, dumping large amounts of fill, moving soil and other materials, and moving fences and gates on the property, including by installing new fences and gates, so that the defendant could control various parts of the property. These activities culminated in the defendant using heavy earthmoving equipment in attempting to increase the width of an easement road on the Rasco property from 5 metres to 25 metres.

The Rasco property consists of 70.82 hectares of mostly undeveloped land. Rasco had previously leased portions of the property to certain businesses. The main tenant was Stargrow (Australia) Pty Ltd (‘Stargrow’) which operated a wood chipping and firewood business from the northwest corner of the Rasco property (‘the former Stargrow site’). Pursuant to arrangements with Rasco, other areas of the Rasco property are used for horse agistment and apiculture. In 2014, Stargrow abandoned its lease and since then Rasco has sought other tenants for the property. For that purpose, Rasco retained Mr Sarkis Sassine (also known as Sam Sassine) of Jason Real Estate as its estate agent to secure a new tenant and monitor the use…

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 Rasco Pty Ltd v Lucas

Details

AGLC: Rasco Pty Ltd v Lucas [2017] VSC 703
Case: [2017] VSC 703
Decision Date: 28 November 2017

CaseChat Overview and Summary

The case of Rasco Pty Ltd v Lucas involved a dispute over trespass to land. Rasco Pty Ltd sought relief from the court for the defendant's repeated trespasses on their property. The case was heard in the Supreme Court of Victoria. The primary legal issues revolved around the appropriate remedy for the trespasses, specifically whether the plaintiff was entitled to an injunction to prevent future trespasses and the appropriate measure of damages for the tort of trespass.

The court considered whether an injunction was necessary to prevent the defendant from causing immediate and substantial damage to the plaintiff's property. It was noted that an injunction should only be granted if the defendant was likely to cause real interference with the plaintiff's rights. The court relied on several precedents to determine the nature of the injunction. The court found that an absolute and unambiguous injunction was appropriate given the repeated and intentional trespasses by the defendant. Additionally, the court examined the appropriate measure of damages, holding that the plaintiff was entitled to reinstatement damages to return the land to its condition before the defendant's trespasses.

The court ultimately ruled in favour of the plaintiff, awarding an injunction to prevent future trespasses and ordering the defendant to pay reinstatement damages. The court determined that the plaintiff had demonstrated a prima facie entitlement to the injunction, and the defendant's actions warranted such relief. The court also considered the precedents and concluded that the injunction was necessary to prevent immediate and substantial damage to the plaintiff's property. Furthermore, the court found that the plaintiff was entitled to damages for the trespasses, and reinstatement damages were the appropriate measure. The defendant was ordered to pay the plaintiff's costs of the proceeding.

Orders