Rasco Pty Ltd v Lucas

Case [2017] VSC 703


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2016 00246

RASCO PTY LTD (ACN 004 496 244) Plaintiff
-and-
JOHN LUCAS Defendant

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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

  1. 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.

  1. 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.

  1. 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…

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Rasco Pty Ltd v Lucas [2017] VSC 703
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[2017] VSC 703
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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.

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