Rasco Pty Ltd v Lucas
[2017] VSC 703
•28 November 2017
| 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
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 of the Rasco property. Both Mr Richard Stern, a director of Rasco, and Mr Sassine gave evidence that Rasco has been unsuccessful in securing a new tenant for the property, in large part due to the activities of the defendant on the property.
From 2015, the defendant claimed to be associated with two properties that border the Rasco property. The first property is known as 520 Mickleham Road, Attwood, and is adjacent to the northern border of the Rasco property. The registered proprietors of 520 Mickleham Road are Vincenzo Lizio and Feliciana Lizio (‘the Lizios’). The defendant claims to have an association with a business trading as ‘Greenvale Rose Farm’ operating on 520 Mickleham Road. The defendant is the sole director, shareholder and secretary of Greenvale Rose Farm Pty Ltd (ACN 607 722 298) (‘Greenvale’), a company incorporated on 18 August 2015. Greenvale’s registered place of business is 520 Mickleham Road. At all material times, the defendant has given his address for service as 520 Mickleham Road. On 15 May 2017, by orders made in the Victorian Civil and Administrative Tribunal (‘the VCAT’), the defendant was ordered to give vacant possession of 520 Mickleham Road to the Lizios.[1]
[1]Lucas v Lizio (No 2) (Building and Property) [2017] VCAT 689 (15 May 2017).
The second property is a small parcel of land of approximately 91 x 91 metres that borders the north eastern corner of the Rasco property and is known as 500 Mickleham Road, Attwood. The registered proprietor of 500 Mickleham Road is Muhittin Bultan (‘the Bultan land’). The Bultan land lies within the flight path of the Melbourne Airport and once housed an antenna for use by Melbourne Airport. The Bultan land has the benefit of a narrow easement of carriageway through the Rasco property, the width of which is disputed by the defendant. On or about 21 August 2015, Greenvale lodged a caveat on the certificate of title to the Bultan land claiming an interest in the freehold estate on the grounds that it had ‘an agreement with the registered proprietor dated 15 August 2015’.
Rasco’s witnesses
Rasco called evidence from five lay witnesses: Mr Richard Stern, Mr Sassine, Mr John Blanch, a solicitor for Rasco at the relevant time of events, Mr David Prior, who agists horses on the Rasco property, and Mr George Iwasiw, who keeps bees on the Rasco property.
Rasco also called evidence from three expert witnesses: Mr Tony Trantino, a licensed land surveyor; Mr Ken Breese, a consulting engineer; and Mr Glenn Otter, a fencing contractor.
Defendant’s witnesses
The defendant gave evidence and also called Mr Wayne Davis, who assisted the defendant during the works on the Rasco property and Mr Graham Baldock, a director of Stargrow, the operator of the wood chipping and firewood business previously operated on the Rasco property.
Mr Baldock’s evidence related to the works that Stargrow performed on the Rasco property prior to 2014. He confirmed that he had not performed any works on the Rasco property after December 2013. His evidence is not relevant as Rasco’s claim is in respect of the defendant’s actions and work on the Rasco property in 2015.
Procedure at trial
The defendant failed to attend the first day of the trial. This was despite the fact that he was present some months earlier when the trial date was set and received written notices of the trial date from the Court and from Rasco’s solicitors. He attended on the second day of the trial. A copy of the transcript of the first day of the trial was provided to him and further time was given to him to assess what occurred on the first day of the trial. At no point after having the benefit of the transcript did the defendant seek to recall any of Rasco’s witnesses who gave evidence on the first day of the trial.
At the conclusion of the defendant’s evidence, it became clear that the defendant had raised a defence of consent that directly contradicted the evidence of Mr Sassine and Mr Blanch. Upon completion of the defendant’s evidence, Rasco recalled Mr Sassine and Mr Blanch for the purpose of the defendant cross-examining them on the issue of consent.
Issues not in dispute
The defendant admitted to having carried out the following works alleged by Rasco:
(a) entering the Rasco property in 2014 and the early part of 2015;
(b) instructing potential tenants of the Rasco property to leave, however, this was said by him to have been done at the request of Mr Blanch, Rasco’s solicitor;
(c) installing two new gates along the easement and fences at the entrance to the Rasco property;
(d) changing the locks and locking the gates at the front entrance of the Rasco property and into the former Stargrow site;
(e) blocking up the entrance to the former Stargrow site with dirt and a wooden pole;
(f) using heavy earthmoving equipment to create and clear a second path along the northern boundary of the Rasco property to the south of the existing easement of carriageway;
(g) moving soil created by the second path from the northern boundary of the Rasco property and dumping it into the gully of the Rasco property; and
(h) dumping all of the soil in the gully of the Rasco property, save for a few mounds visible in aerial photographs that had not been smoothed over.
Issues in dispute
The issues in dispute are:
(a) the width of the easement on the Rasco property, of which the Bultan land and 520 Mickleham Road are the dominant tenements and the rights, if any, that are afforded to the defendant pursuant his assertions in relation to his associations to these properties;
(b) a limited factual controversy surrounding the defendant’s earthworks on the Rasco property that relate to certain mounds of dirt deposited in the gully of the Rasco property; and
(c) that Rasco alleges that the defendant’ activities on the Rasco property constitute a series of serious trespasses. The defendant denies this and alleges that Rasco gave its consent or otherwise acquiesced to his activities on the Rasco property.
The easements
There are two dominant tenements that each enjoy the benefit of an easement over the northern boundary of the Rasco property.
The Bultan land easement
Instrument D698479 made under seal dated 22 April 1970 created an easement of electricity transmission and carriageway for the benefit of the Bultan land (‘the Bultan land easement’). The dominant tenement of this easement is described in Instrument D698479 as the land described in Certificate of Title Volume 8788 Folio 873, being the Bultan land. The nature of the easement is described as the right for:
… [the registered proprietor in fee simple of the Bultan land] and its and their servants agents workmen contractors and others with or without motor vehicles plant or other machinery to use the land colored [sic] green and yellow on the said map for carriageway purposes and also for the purpose of erecting or laying and maintaining overhead or underground wires or cables for the transmission of electricity…
The width of the easement ranges between 25.8 links for half its length and 30.3 links for the remaining half of its length. The easement is at the northern boundary of the Rasco property and facilitates access between the Bultan land and Mickleham Road.
The defendant produced a copy of a contract of sale dated 15 August 2015, with an attached vendor’s statement between Mr Bultan as vendor and ‘Greenvale Rose Farm or nominee’ as purchaser for the purchase of the Bultan land purporting to be signed by Mr Bultan as vendor and the defendant and Gavin Sheehan on behalf of the purchaser. The purchase price was expressed as $650 000 with a deposit of $65 000 paid on 15 August 2015. The settlement date for the completion of the purchase was 18 February 2016.
The copy contract of sale contains 16 typed special conditions and one handwritten special condition numbered 17 which states:
The vendor agrees to give access and right to access the property and to proform [sic] work on the property at Lot 1, 500 Mickleham Road, Attwood on the 15th of August @ 4.30pm. If the property does not settle the property must be left in the same or better condition.
Although Greenvale lodged a caveat on the certificate of title to 500 Mickleham Road on or about 21 August 2015 claiming an interest in the freehold of the Bultan land, the defendant did not adduce any evidence of the payment of the deposit or the completion of the purchase, either by the settlement date or at all. Further, the defendant did not call Mr Bultan as a witness or produce the original contract of sale.
The 520 Mickleham Road easement
Transfer of land T2335716 created an easement of carriageway of a shorter length but of similar width as the Bultan land easement and is for the benefit of 520 Mickleham Road. The dominant tenement of that easement is defined as the land described in Certificate of Title Volume 5946 Folio 1189164. The nature of the easement is described as:
The full and free right and liberty to and for the transferees hereunder and to and for the registered proprietor or proprietors for time being of the land hereby transferred or any part thereof and his her [sic] and their tenants servants agents workmen [sic] and visitors to go pass and repass at all times hereafter and for all purposes…
Plan Number LP 149637J records that 520 Mickleham Road, being the land described in Certificate of Title Volume 09720 Folio 433, possesses, among others, the easement created by transfer of land T2335716.
The defendant’s asserted understanding of the easements
Throughout the trial, the defendant was under two significant apprehensions: the first was the width of the easements on the Rasco property, and the second was the rights that easements of this nature would afford him due to his asserted associations with the dominant tenements.
The defendant argued that the easements are measured in metres and that their widths are 25 metres. This is notwithstanding that he was taken to the relevant title documents for the Rasco property that records the width of the Bultan land easement as between 25.8 and 30.3 links and he read out the fact that the measurement was in links. A link is equivalent to roughly 0.201 of a metre, making the width of the easement between 4.98 and 6.09 metres.
In regard to the defendant’s alleged ‘right’ to carry out works on the easement, in his filed defence, the defendant pleads that the vendor of the Bultan land had:
… misrepresented to [him] that the easement on the Rasco Land was part of the title at 500 Mickleham Road. The contract provided a right to the Defendant to carry out works upon the subject land prior to settlement.
The property referred to in special condition 17 of the copy contract of sale is the Bultan land. It is legally irrelevant whether the defendant thought that the easement formed part of the Bultan land. He has no legally enforceable right to the Bultan land. The caveat lodged on the certificate of title of the Bultan land cannot provide the defendant with any authority over the Bultan land easement. Even if the defendant were the registered proprietor of the Bultan land, his ownership of it would be insufficient to grant him any rights to carry out the works that he actually undertook on the Rasco property.
In respect of the easement in favour of 520 Mickleham Road, the VCAT orders provide that the Lizios are the registered proprietors of that property and, as such, they exclusively enjoy the easement of carriageway as prescribed by the certificate of title for 520 Mickleham Road.
Conclusions
The defendant has failed to establish that he has the benefit of either of the easements and, in any event, his use of the easements is inconsistent with any rights afforded to those who are legally entitled to benefit from them.
The defendant’s allegations in respect of the Rasco land
In early 2014 and 2015, the defendant began trespassing on the Rasco property. During this time, he made various allegations to the other stakeholders that were also present on the land, being Mr Sassine and Mr Iwasiw. Although his allegations are not directly related to the pleadings in this proceeding and have little bearing on any orders made, they are relevant for the purposes of understanding the defendant’s defence and his credibility as a witness.
The defendant’s assertions in respect of Mr Sassine
Mr Sassine is the leasing agent for the Rasco property. On his way to work each day, he passes the Rasco property. He described his encounters with the defendant during this period. His encounters are corroborated by his contemporaneous emails sent to the directors of Rasco, the Stern family, in his capacity as Rasco’s agent.
Mr Sassine said that on 19 March 2015, the defendant contacted him for the first time wishing to make enquiries about leasing the Rasco property. Mr Sassine informed him that the Rasco property was already under offer for lease to another party.
Mr Sassine also said that in April 2015, the defendant again telephoned Mr Sassine and stated to him that the Stern family had given him permission to occupy the Rasco property and that he (the defendant) had instructed the potential tenant, being a person named Ken Buguat who was occupying the Rasco property with the consent of Rasco, to leave the Rasco property.
The defendant denies this last conversation with Mr Sassine, however, during cross-examination, he admitted to ‘chasing off’ potential tenants from the Rasco property.
Most of the defendant’s cross-examination of Mr Sassine related to irrelevant matters and, from time to time, the defendant became aggressive or volatile towards Mr Sassine. Mr Sassine remained calm and patient in the face of the defendant’s cross-examination. I found Mr Sassine to be a truthful and careful witness, with his oral evidence corroborated by his contemporaneous emails.
The defendant’s assertions in respect of Mr Iwasiw
Mr Iwasiw said that in early 2015, the defendant told him that Mr Sassine would be sacked as the managing agent of the Rasco property and that he (the defendant) would be managing it from that point forward. The defendant also instructed Mr Iwasiw that he would have to remove his bees from the Rasco property. The defendant also made verbal threats, amongst other things, to Mr Iwasiw about his passing on a key to the Rasco property to Mr Sassine.
Mr Iwasiw is a fastidious note-taker and, with the help of his wife, he had documented his encounters with the defendant. Mr Iwasiw was taken to his emails and notes during his evidence. He reaffirmed their veracity and recounted his conversations with the defendant during the relevant period. Mr Iwasiw’s notes are also corroborated by his outline of evidence filed 15 March 2017 and by his contemporaneous emails to Mr Richard Stern questioning the authority of defendant.
The defendant denies telling Mr Iwasiw that he was the new property manager or threatening him, but does admit to conversing with Mr Iwasiw during that period.
Mr Iwasiw was subpoenaed to give evidence. He was cross-examined mostly on matters that were not relevant to the proceeding and, as with Mr Sassine, from time to time, the defendant became aggressive or volatile towards Mr Iwasiw. Mr Iwasiw’s evidence accords with the chronology established by the aerial photographs of the Rasco property tendered by Rasco and the oral testimony of the other Rasco witnesses. Mr Iwasiw was a truthful and careful witness and his oral evidence was corroborated by his contemporaneous emails and notes.
Conclusions
Mr Sassine and Mr Iwasiw were truthful and credible witnesses and there is no reason to doubt the reliability of their evidence.
The defendant’s conduct on the Rasco property
Rasco pleads various trespasses by the defendant on the Rasco property over a period of time. While the defendant does not deny many of Rasco’s allegations of trespass, it is instructive to set out some detail as to what he accepts took place in respect of the Rasco property from 2008, by way of background, and then leading into 2014 and thereafter.
The defendant’s activities in 2008
The defendant first came into contact with the Stern family in 2008 when he made enquiries to lease the Rasco property. During these communications, the defendant indicated he had entered the Rasco property without permission and placed gravel stockpiles on the property, as well as slashing the grass.
By a handwritten letter dated 15 February 2008, Mr Richard Stern wrote to the defendant unequivocally denying him any permission to enter or tamper with the Rasco property.
By letter dated 16 April 2008, Mr John Blanch, the then solicitor for Rasco, wrote to MNG Lawyers, the then solicitors for the defendant, rejecting the defendant’s offer to enter into lease negotiations and re-affirming that the defendant had no entitlement to enter the Rasco property.
By 1 September 2008, Rasco had secured Stargrow as a tenant of the Rasco property. Stargrow vacated the Rasco property by early March 2014.
The defendant’s activities in 2014
The defendant’s trespassing on the Rasco property ceased from 2008 until early 2014 due to his incarceration for theft. Upon his release in 2014, the defendant resumed trespassing on the Rasco property.
The defendant’s activities in 2015
From early 2015 onwards, the defendant’s trespassing on the Rasco property became more frequent and serious.
In or around April 2015, he installed new padlocks and chained all the gates to the Rasco property. He gave Mr Iwasiw a key to the padlocks. Mr Iwasiw then passed on a copy of the key to Mr Sassine, as the agent for Rasco. The defendant then changed the padlocks again.
On 1 August 2015, the defendant heaped soil and a pine log against a gate to the former Stargrow site using heavy earthmoving equipment. The defendant’s motivation for doing so was his apparent concern for the possibility of theft of timber from Rasco’s property and other materials from the former Stargrow site.
In August 2015, the defendant began removing and installing new fences and gates at the entrance to the Rasco property and the former Stargrow site.
On 18 August 2015, Mr Sassine noticed ‘United Energy’ trucks on the Rasco property and the erection of new fencing on the property. He described the fencing as being approximately 24 metres wide on the north east boundary between the Rasco property and 520 Mickleham Road.
On 19 August 2015, Mr Sassine visited the Rasco property to speak to the defendant about the fencing. The defendant informed him that as a result of purchasing the Bultan land he enjoyed a 25 metre easement on the Rasco property and that he was ‘taking his easements’. Mr Sassine informed the defendant that the easement enjoyed only a 5 metre boundary and to cease the work immediately. Mr Sassine also attempted to impress upon the defendant that he was the property manager for the Rasco property and that the defendant was not. Mr Sassine informed Mr Richard Stern of these works via email and Mr Stern subsequently contacted Mr Blanch.
On 28 September 2015, Mr Blanch wrote a ‘cease and desist’ letter to the defendant referring to his conduct as deterring potential tenants and his trespassing on the Rasco property. The warnings of Mr Sassine and Mr Blanche failed to curtail the defendant’s operations on the Rasco property.
By early October 2015, the defendant had altered the location of the gates at the entrance to the Rasco property from Mickleham Road and added a new gate at the entrance to the former Stargrow site on the Rasco property. The defendant had also erected a high woven wire fence at the entrance to the Rasco property and along the southern border of the easement, running east to west, approximately 30 metres in length.
Creation of the second path through the Rasco land
By 4 October 2016, the ‘Nearmap’ images tendered by Rasco demonstrate that the defendant had cleared a second path along the north of the Rasco property parallel to the easement. The defendant claims he cleared the path to facilitate the removal of construction waste that was on the Rasco property or the Bultan land. He claims that because his easement is 25 metres wide, this land forms part of his driveway to the Bultan land. The defendant said he also believed that as a consequence, it was his responsibility to clean up the land, pursuant to a request from the Hume Council, which had been relayed to him from the alleged ‘former’ owner of the Bultan land.
Depositing waste and other materials in the gully
From April 2015 until approximately October 2015, the defendant deposited several large mounds of soil into a gully on the Rasco property. He did these works with the assistance of his friend, Mr Wayne Davis, using a bulldozer and other heavy machinery. The soil that was dumped was the soil from the defendant’s excavations for his creation of the second path running parallel to the existing easement through the Rasco property. Photographs tendered by the plaintiff that bear dates before and after the soil dumping and path clearing demonstrate a significant change in the landscape of the gully as a result of this work by the defendant.
The defendant admitted to carrying out these earth works, save for some small coloured mounds at the southern part of the gully. He denied any responsibility for dumping the small coloured mounds. He also admitted that he dumped materials in the gully, but denied that any of the soil fill came from outside the Rasco property.
A letter dated 25 November 2015 from the defendant’s then solicitor to Mr Richard Stern provides an illuminating insight into the defendant’s intentions in respect of the gully. In relation to the initial movement of soil, the defendant’s solicitor responded to Rasco’s letter of demand denying that he had ‘dumped any material whatsoever’. In that same letter, however, the defendant also said that he told Rasco that he ‘wishes to use his property at 500 Mickleham Road for a landfill site to flatten out the existing gully and to do the same in the gully on [Rasco’s] property’.
The small coloured earth mounds in the gully
The defendant denies responsibility for the appearance of the small coloured earth mounds dumped in the gully of the Rasco property that have changed the landscape of the gully so significantly.
The defendant’s denial was expressly contradicted by Mr Iwasiw’s oral evidence. He stated that, in October 2015, he saw trucks and trailers arriving along Mickleham Road, enter the Rasco property and dump the soil in the gully. Upon this occasion, Mr Iwasiw expressed his concerns about this activity to Messrs Richard and Stephen Stern by email dated 16 October 2015 as follows:
This morning I was taking some hives to your property, there was a convoy of trucks coming down Mickelham and turning onto your property through the lane way delivering different colour dirt and dumping it into the valley. I had difficulty getting to my bees because the only way in, was past the Rose farm then across onto your property. You had [to] pass a guy recording trucks going in to dump the dirt. I was told by John that he was from the Hume Council … If you don’t do something soon the whole valley will be filled in… In the space of one and a half hours there must have been 30 trucks. He also has a big water truck going up and down spraying to keep the dust down.
Mr Iwasiw confirmed during his evidence that ‘he’ in this email refers to the defendant and that Mr Iwasiw saw the defendant driving the water truck that was spraying water to keep the dust down from the dumping.
Mr Iwasiw’s evidence is corroborated by Mr Prior who agists horses on the Rasco property. Mr Prior attends at the property on a weekly basis. He saw ‘trucks coming and dumping the soil’ and that ‘[the defendant] was…communicating with us about a water truck, he was making sure that the dust was down’. Mr Prior stated that the trucks ‘were obviously coming in off the roadway and then down the secondary track’. Mr Prior spoke with the defendant at the time these works were occurring and the defendant told him that he was clearing up the area and that he wanted to elevate and widen the access driveway so that it did not drop off into the gully.
The defendant denies being responsible for any dumping of materials coming from outside the Rasco property. He stated that the coloured mounds in the tendered photographs appeared over a public holiday. He agreed that, based on aerial photographs of the Rasco property, the materials would have had to been dumped between 4 October 2015 and 28 October 2015. During that period, there were no public holidays.
Conclusions
Taking the evidence of Mr Iwasiw and Mr Prior and the photographic evidence, coupled with the impossibility of the defendant’s defence and his motivation to both widen the easement and use the Bultan land as a dumping site, I am satisfied that the defendant is responsible for the dumping of the small coloured mounds of dirt in the gully of the Rasco property.
The defendant’s defence to trespass: consent
As already noted, over the course of the trial it became clear that the defendant relied on the defence of consent to shield himself from liability for his significant trespasses to the Rasco property.
In his defence, the defendant pleads that Rasco be estopped from advancing a trespass argument on the grounds that the defendant carried out the works with the approval or acquiescence of Rasco and with the approval or tacit acquiescence by Mr Sassine and Mr Blanch, on behalf of Rasco.
Alleged consent from Mr Blanch
The defendant pleads that Mr Blanch orally granted him various authorities over the Rasco land, providing the following particulars:
In or around April and May 2015, the defendant called Mr Blanch at least ten times to inform him of illegal dumping on the Rasco site, including of illegally dumped asbestos.
In or around May 2015, Mr Blanch represented to the defendant that he should commence works to remove the asbestos and that Mr Blanch would tell the directors of Rasco that he was undertaking the works.
For the duration of his works on the Rasco land, Mr Blanch was aware that he was ‘involved in the removal of the asbestos sheeting and construction waste, as well as the screening of the soil on which the asbestos sheeting and construction waste had been situated’.
Mr Blanch denies ever having given implied or explicit permission to the defendant to carry out any works on the Rasco property. Mr Blanch did receive many telephone calls from the defendant, but he had clear instructions from Rasco to disregard the defendant’s calls. Rasco instructed Mr Blanch to write a letter to the defendant, which he did on 28 September 2015, warning him not to enter the Rasco property. The defendant admitted receiving this letter yet continued with the earthworks on the Rasco property regardless of it.
Alleged consent from Mr Sassine
The defendant pleads that he obtained tacit rather than express consent from Mr Sassine. Conversely, in his oral testimony, he asserted that Mr Sassine was aware that he was replacing the fencing and that Mr Sassine gave him explicit instructions on where to dump soil on the Rasco property. The defendant also alleges that ‘he never did anything on that property unless I spoke to John Blanch or Mr Sassine. Never’.
In cross-examination, Mr Sassine explicitly denied giving the defendant permission to erect any fencing or to deposit materials on the Rasco property or change it in any way.
The defendant’s witness, Mr Davis, gave unsatisfactory evidence that revealed he held a flagrant disregard for the truth. At times, his evidence in regard to the contentious coloured mounds in the gully of the Rasco property contradicted the defendant’s evidence. When Mr Davis was asked the surname of the man that he saw the defendant chatting with onsite about the dumping of the soil, he said ‘Rasco or something but I’m not sure’. He then said the man was Mr Sassine. Then he changed his story yet again and conceded that he did not know who the man was but that he had a white beard. It was clear from the evidence that this man whom Mr Davis said allegedly gave consent to the defendant was neither a ‘Mr Rasco’ nor Mr Sassine.
The defendant’s mental health
The defendant admitted that he has been diagnosed by three psychiatrists with a disorder called ‘delusional disorder—grandiose type’[2] and that he has not sought treatment for this disorder.
[2]Lucas v The Queen [2012] VSCA 245 (1 October 2012) [17] (Redlich JA).
The diagnosis of the defendant’s mental health was an issue in his trial for theft and a psychiatrist named Dr Glowinski gave evidence that he believed the defendant was likely under the influence of delusional beliefs, which means that the defendant suffers from delusions that are otherwise possible or realistic in their content. Dr Glowinski described the disorder as an uncommon one that is difficult to diagnose due to its non-bizarre content. The defendant was convicted of the theft. On appeal, the defendant’s sentence was reduced on the grounds that his mental impairment was such that it satisfied the test outlined in Verdins v The Queen.[3] This meant the defendant’s sentence was lesser than that usually imposed for such criminal activity due to considerations that he was under the influence of delusional beliefs at the time of his offending.[4]
[3]Ibid [21], citing Verdins v The Queen (2007) 16 VR 269.
[4]Ibid [22].
This disorder may explain the significant discrepancies between the defendant’s defence and his oral evidence as well as the numerous contradictions in and shortcomings of his version of events on the Rasco property.[5]
Conclusions
[5]For example, the defendant’s denial of having engaged MNG Lawyers, and then his subsequent admission that he had engaged that firm.
Mr Blanch was a credible and truthful witness and there is no reason to doubt his evidence. At no point throughout 2015 or 2016 did Mr Blanch give the defendant an indication, either tacitly or expressly, that he had permission to remove waste material from the Rasco property. Regardless of the doubtful veracity of the defendant’s claim of permission to remove waste, this purported permission provided the defendant with no authority to dump waste in the gully or carrying out any of the other earth and practical works on the Rasco property. Mr Sassine was also a credible and truthful witness and there is no reason to doubt his evidence in this regard.
I am satisfied that neither Mr Blanch nor Mr Sassine gave tacit or implied permission to carry out the earthworks or any other works on the Rasco property. The fact that the defendant alleges that he may have informed them of some of his movements and intentions with regards to the Rasco property does not amount to tacit or implied permission. Rather, there are numerous examples of each of them specifically requesting the defendant to immediately cease his activities on the Rasco property.
As neither Mr Blanch nor Mr Sassine gave any permission, tacit or implied, to carry out the earthworks or any other works on the Rasco property, the defendant’s estoppel argument is rejected.
Relief sought by Rasco
Rasco’s primary motivation for instituting this proceeding is for the defendant to be permanently enjoined from entering the Rasco property and prohibited from performing any similar trespasses on the property in the future.
Rasco submits that an absolute and permanent injunction is necessary as any ambiguity would almost certainly result in the defendant trespassing on the Rasco property again and cause further disputes. In circumstances where the defendant has repeatedly established that he has little regard for legal documents and the proper scope of legal rights that they afford, any ‘carve-outs’ that may be included in an injunctive order would cause confusion and fail to prevent future trespasses on the Rasco property.
Rasco also seeks a declaration concerning the boundaries of the Rasco property as an adjunct to injunctive relief so as to reduce further any potential for ambiguity or uncertainty in the scope of the restraint and damages for the substantial modifications that the defendant has made to the Rasco property.
Injunctive relief
Intentional trespass is actionable in the absence of any particular damage to the land.[6] In Plenty v Dillon, Gaudron and McHugh JJ commented:
True it is that the entry itself caused no damage to the appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land.[7]
[6]See Islamic Association of Wanneroo (Inc) v Al-Hidayah Mosque (Inc) (No 2) [2009] WASC 404 (23 December 2009) [42] (Murphy J), citing Plenty v Dillon (1991) 171 CLR 635, 639 (Mason CJ, Brennan and Toohey JJ).
[7]Plenty v Dillon (1991) 171 CLR 635, 654–5.
The authorities and long-standing equitable principle provide that where breach of a proprietary right is in question, as is the case with trespass, there exists a prima face entitlement to an injunction or specific performance.[8] Furthermore, the authorities suggest there is a preference for the imposition of an injunction in circumstances where the trespass is likely to continue.[9] As stated by Dixon CJ in Mayfair Trading Co v Dreyer:
… the rule that where the plaintiff has established the invasion of a common law right, and there is ground for believing that without an injunction there is likely to be a repetition of the wrong, he is, in the absence of special circumstances, entitled to an injunction against such repetition. [10]
[8]Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, 319 [36] (Dodds-Streeton JA) (‘Break Fast’).
[9]Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464, 469–70 (Bryson J).
[10]Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428, 451.
That passage originated in the judgment of the Full Court of the Supreme Court of Victoria in Beswicke v Alner.[11] However, it is important to keep in mind that Beswicke v Alner was decided before Victorian legislation mirroring the Lord Cairns’ Act was enacted. Consequently, at that time, the Victorian Supreme Court did not have the power to award equitable damages, including damages for anticipated future harm, in lieu of an injunction.[12]
[11]Beswicke v Alner [1926] VLR 72, 76–7 (Cussen J).
[12]This fact was noted by the Court of Appeal in Break Fast (2007) 20 VR 311, 329 [96] (Dodds-Streeton JA).
As noted above, in Break Fast the Court of Appeal acknowledged that the relevant authorities ‘uniformly uphold the established view that an injunction is the prima facie remedy for trespass’[13] and that ‘according to longstanding equitable principle, the breach or invasion of a proprietary right, or a sufficient risk thereof, founded a prima facie entitlement to an injunction or specific performance’.[14]
[13]Ibid 335 [135].
[14]Ibid 319 [36].
Rasco has not sought a mandatory injunction which, if granted, may have required the defendant to rectify his substantial modifications to the Rasco property. Instead, Rasco has sought forward-looking quia timet injunctive relief in combination with reinstatement damages.
In order to be granted quia timet relief, Rasco must show that what the defendant intends or is likely to do will cause immediate and substantial damage to their property or business.[15] While the onus is on Rasco to demonstrate that the defendant is likely to cause immediate and substantial damage, the authorities do not establish that any fixed or absolute standard of proof is required before quia timet injunctive relief will issue.[16]
[15]Neville Jeffress Advertising Pty Ltd v Barlow (No 2) (Unreported, Supreme Court of Tasmania, Zeeman J, 15 October 1993) 10. This statement of principle was not contested on appeal: see Barlow v Neville Jeffress Advertising Pty Ltd (1994) 4 Tas R 391, 400–1 (Cox J).
[16]Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261, 269–70 (Lockhart, Cooper and Kiefel JJ).
Relevantly, the Full Court of the Federal Court noted in Hurst v State of Queensland (No 2):
In quia timet proceedings, the court will have regard to the degree of probability of apprehended injury, the degree of the seriousness of the injury, and the requirements of justice between the parties.[17]
[17]Hurst v State of Queensland (No 2) [2006] FCAFC 151 (27 October 2006) [21] (Ryan, Finn and Weinberg JJ).
A useful survey of the general principles applicable to the grant of quia timet injunctions was provided by Bennett J in Apotex Pty Ltd v Les Laboratories Servier (No 2), where her Honour noted:[18]
The following principles generally apply to the grant of a quia timet injunction:
• A quia timet injunction is granted to prevent a threatened infringement of the rights of the applicant. The applicant must show that what the respondent is threatening and intending to do will cause imminent and substantial damage to the applicant.
• The word “imminent” means that the injunction must not be granted prematurely. The degree of probability of future injury is not an absolute standard. What is to be aimed at is justice between the parties, having regard to all the relevant circumstances. However, this is not to be taken as conveying that future injury need not be shown to be likely at all.
• Quia timet injunctions are not to be granted unless the imminence of the act to be prohibited is sufficiently clearly established to justify the court’s intervention.
• In deciding whether to grant a quia timet injunction, the court will have regard to the degree of probability of the apprehended injury, the degree of seriousness of the injury and the requirements of justice between the parties.
[18]Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272, 281–2 (citations omitted). See also Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17, 134 [479] (Bromberg J).
The defendant has made it very clear that he is likely to continue to violate Rasco’s rights. To date, the defendant has paid no heed to clear and direct oral and written warnings from numerous individuals regarding his trespassing on the Rasco property.
Despite being taken to the fact that the easement was measured in links, the defendant did not hesitate or appear to reconsider his position that the easement was 25 meters in width. During the trial, the defendant’s position was that his now extinct claims to the Bultan land and 520 Mickleham Road provide him with rights that go far beyond those granted to the proprietors of these properties by legal instrument, of which he is neither. The defendant was unable to concede any wrongdoing or even misunderstanding on his part, even going so far, in his closing submissions, as to contend that he was simply helping out Rasco.
While not determinative, it is also relevant to note that not only has the defendant continually trespassed on the Rasco property, which goes to the imminence of future trespass, but in doing so he has directly caused substantial alterations and damage to the Rasco property. This previous damage goes to the probability that his likely future conduct will also cause ‘substantial damage’. Here, ‘substantial’ is taken to mean a ‘real interference’ with Rasco’s rights as opposed to a qualitative judgment of the relative size of the detriment.[19]
[19]Neville Jeffress Advertising Pty Ltd v Barlow (No 2) (Unreported, Supreme Court of Tasmania, Zeeman J, 15 October 1993) 10. This statement of principle was not contested on appeal: see Barlow v Neville Jeffress Advertising Pty Ltd (1994) 4 Tas R 391, 400–1 (Cox J).
In these circumstances, it is appropriate to order a quia timet injunction prohibiting the defendant from interfering with the Rasco property at any point in the future.
As to the appropriate form of the injunction, Rasco submits that any carve-out enabling the defendant to access the easement for carriageway purposes would fail to protect it from further inappropriate forays by the defendant on the Rasco property.
In Coles Group Property Developments v Stankovic, Sackar J ordered an injunction against a homeless man entering a particular plaza where his medical centre was located due to his persistent parking in the plaza car park. His Honour said:
Relevantly for the purposes of the present case I also note the importance of granting injunctions in “clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction”.[20]
[20]Coles Group Property Developments Ltd v Stankovic [2016] NSWC 852 (23 June 2016) [59] (citations omitted).
His Honour then went on, stating:
While I have considered the option of carving out access to the Plaza to enable the defendant to attend the medical centre for an indefinite period, I am of the view that the hardship that will be experienced by the defendant in having to make alternative arrangements for medical care in the area is insufficient to deny the plaintiffs the relief that they seek and that they are prima facie entitled to. The defendant has indicated that he is able to take public transport using his current mobility scooter and indeed has managed to attend the hearing of this matter by bus…
I am of the view that any carve out to attend the medical centre would be likely to give rise to continuing conflict between the plaintiffs and the defendant…[21]
[21]Ibid [67]–[68].
When faced with balancing the ends of certainty against a more nuanced form of injunctive order, the Court favoured awarding an absolute injunction without any carve-outs with a view to preventing any future and reoccurring disputes or trespasses.
I am satisfied that absent an absolute and unambiguous injunction, the defendant is unlikely to curtail his behaviour in regard to the Rasco property and it would not be appropriate to allow the defendant any access to the Rasco property because of his past failures to appreciate the effect of legal instruments when such instruments stand in opposition to his desires.
Declaration as to the boundaries of the Rasco property
Mr Trantino is a licensed land surveyor and he undertook a survey of the Rasco property that set out relevant and key features, including the size of the easements of carriageway along the northern border of the Rasco property. Mr Trantino was not cross-examined by the defendant. There is no reason to doubt his expertise or his evidence. Accordingly, Mr Trantino’s survey of the Rasco property should be accepted as accurate.
Rasco’s claim for damages
Rasco also seeks damages to compensate for the actual damage caused to the land by the defendant. The usual approach, when assessing damages for injury done to land, is to measure damages by either the diminution in value of the land or the costs of reinstatement. As Digby J noted in Winky Pop v Mobil Refining Australia:
Courts will start with what the plaintiff has asked for, and then consider whether that measure of damages is fair and reasonable in light of the injury suffered, the difference between the diminution in value on the one hand and reinstatement costs on the other, and any special value in the land. Damages may also be awarded for consequential losses, including lost profits or lost commercial opportunities.[22]
[22]Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 (13 July 2015) [182]. On appeal, the Court of Appeal noted that the principles as set out by Digby J were largely uncontroversial: see Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2016] VSCA 187 (5 August 2016) [331] (Warren CJ, Ashley and Osborn JJA).
It is important to remember that the assessment as to whether the measure of damages is ‘fair and reasonable’ is the overriding requirement of the process.[23] The ultimate goal being to put the plaintiff in the position in which it would have been if the tortious conduct had not occurred.[24]
[23]Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353 (27 September 2004) [207] (Santow JA).
[24]Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2016] VSCA 187 (5 August 2016) [299] (Warren CJ, Ashley and Osborn JJA), approving the approach taken by Digby J at first instance.
Insofar as the defendant’s trespasses involved damage to fixtures on the Rasco property, that is, the defendant’s actions in moving and removing fencing and gates, the appropriate measure of damages, subject to some exceptions, is the reasonable commercial cost of repairing and reinstating them.[25]
[25]Powercor Australia Ltd v Thomas (2012) 43 VR 220, 227 [25]–[27] (Osborn JA).
Rasco seeks that damages be assessed on the basis of the cost to reinstate the Rasco property to the condition it was in prior to the defendant’s various trespasses on it. For this purpose, Rasco tendered the evidence of two experts.
Costs for the removal of the soil mounds
Mr Ken Breese is a certified practising engineer. On 28 March 2017, Rasco filed the expert report by Mr Breese on the cost of ‘cleaning up’ the Rasco land by a simple dispersal of the soil around the existing site. For the purpose of his report, Mr Breese invited tenders ‘to remove concrete, miscellaneous materials, general waste and spread the remaining fill material on the existing surface at the directions of my client Rasco Pty Ltd’. His costs were based on a review of four tenders that addressed the cost of rehabilitating the entire site, broken into six areas listed on a map prepared by Breese Pitt Dixon Pty Ltd, with the areas affected by the defendant’s work being areas 3 and 6 of his report. His opinion in his first report was that the dispersal method was a compromise and that he considered that all of the material should be removed from the site. In this report, Mr Breese noted in his ‘additional comments’ that ‘in my opinion spreading the sometimes poor quality material on site is a compromise and it is my opinion that all of the material should be removed from site all be it [sic] at a significantly greater cost’. When questioned about this statement in giving his evidence, Mr Breese said:
… there is a lot of poor quality material in there and filling that’s placed on any land has a detrimental effect on the land, so in my professional opinion I would’ve been much happier for them—all of the material to be removed from site, rather than placed on site… if the material is placed there now, that may well have a detrimental effect on the ultimate use of the site.
As a result, Mr Breese was asked by Rasco to prepare a second report addressing the costs for completely removing the soil mounds from the site. Mr Breese prepared a second expert report dated 24 April 2017 based on the cost of ‘site reinstatement’. This second report supersedes Mr Breese’s initial report and is aimed to provide a reasonable cost of ‘removing the materials from areas 3 and 6, including site establishment, tree protection and reinstatement’. In preparing his second report, Mr Breese invited tenders on two different bases: the first was a tender to clean up the entire Rasco property and the second was a ‘part tender’ to clean up the areas of the Rasco property that house earth mounds that have been found to have been created by the defendant, being mounds along the boundary of the easement and the mounds in the gully. Rasco submits that this ‘part tender’ reflects the appropriate calculation of damages.
Mr Breese estimated the cost of re-instating the areas identified by the ’part tender’ to be $226 000 (exclusive of GST). The defendant did not adduce any expert evidence to contradict Mr Breese’s expert opinion and did not cross-examine him at trial. Mr Breese’s costs assessment is taken from the lowest of the tenders received from the four contractors that responded to his tender and is based upon a detailed and itemised quote from an established civil contractor based in Melbourne. In the circumstances, I am satisfied that this figure represents a reasonable cost to perform the necessary works to restore the relevant areas of the Rasco property to their original condition.
Expert investigative costs
Rasco also claims $17 625 for the pre-litigation fees for Mr Breese in respect of his expert investigative costs. It is an uncontroversial principle that expenses reasonably incurred as a result of, or in attempt to mitigate, tortious conduct may be recovered as damages.[26] The defendant did not cross-examine Mr Breese and the defendant did not adduce evidence to the contrary.
[26]See, generally, H McGregor CBE QC, McGregor on Damages (Sweet & Maxwell, 19th ed, 2014) 64 [4-058]–[4-059]. See also Powercor Australia Ltd v Thomas (2012) 43 VR 220, 232–3 [52]–[53] (Osborn JA), approving the adoption of principles outlined in an earlier edition of McGregor on Damages in Tuncel v Renown Plate Co Pty Ltd [1976] VR 501, 504 (Gillard J).
Based on Mr Breese’s experience and evidence, I am satisfied that this amount as calculated by him is reasonable in the circumstances.
Costs for the removal of fences and gates
Mr Glen Otter is the general manager of Otter Fencing. He is a current and active committee member of the Australasian Fence Industry Association and has actively been engaged in the fencing industry for over 15 years.
Mr Otter inspected the Rasco property and described in detail the material of the fencing, as well as the cost of removing the fencing. His evidence was that the cost of removing the fencing and gates installed by the defendant is likely to be $9 490 (excluding GST). The defendant did not cross-examine Mr Otter and the defendant did not adduce evidence to the contrary.
Based on Mr Otter’s experience and detailed explanation set out in his expert report, I am satisfied that this sum represents a reasonable amount to perform the necessary works.
Conclusions
An award of damages measured as the cost of reinstating the Rasco property and calculated in accordance with the expert evidence relied on by Rasco is fair and reasonable and it best serves the ultimate goal of putting Rasco in the position in which it would have been if the tortious conduct had not occurred. Where the defendant has consistently trespassed and caused damage to the Rasco property despite clear and consistent directions to desist by Rasco, it is entirely reasonable for Rasco to seek damages measured by the costs required to have the Rasco property reinstated.
Accordingly, I am satisfied that damages totalling $253 115 should be paid by the defendant to Rasco together with interest as accrued in accordance with s 60 of the Supreme Court Act 1986.
Orders and declarations
The defendant has failed consistently to express contrition for his earlier trespasses which further exacerbates the need for clear and express orders as to the illegality of continuing with these activities on the Rasco property, and he has caused significant and undesirable changes to the property.
Accordingly, I will grant the injunctive relief and make the requested declarations as sought by Rasco. I will also order damages against the defendant in the amounts claimed by Rasco for reinstatement of the Rasco property, plus interest.
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