Redin v Dechellis Homes Pty Ltd - [2020] SADC 63

District Court of South Australia
(Civil)
REDIN v DECHELLIS HOMES PTY LTD & ORS
[2020] SADC 63
Judgment of His Honour Judge Chivell
28 May 2020
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
TORTS - NUISANCE - DEFENCES - GENERALLY
TORTS - TRESPASS
Claim for damages – action in negligence, nuisance and trespass to land. Large cypress hedge straddling boundary between plaintiff’s property and property of neighbour. Pursuant to an agreement with neighbour, the second and third defendants agreed that portion of hedge on neighbour’s property would be removed. Plaintiff alleges that work performed negligently and caused damage to his portion of hedge to the extent that he was forced to remove it. Plaintiff claims damages for diminution in value of his property, and/or cost of replacement. Second defendant’s plea in accord and satisfaction, or alternatively in estoppel, not made out. Damages assessed at $30,000. Contribution claims between second and third defendants dismissed.
Held: Plaintiff has not made a case in negligence, nuisance or trespass. Claim pursuant to s 16(2) Fences Act 1975 (SA) not pursued. Plaintiff’s claim dismissed.
Fences Act 1975 (SA s 16(2); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6, s 8, referred to.
Masters v Pollie (1620) 2 Roll Rep 141; 81 ER 712; Holder v Coates (1827) M & M 112; 173 ER 1099; Carr v Sourlos (1994) 6 BPR 13,626; Elliott v London Borough of Islington [1991] EGLR 167; Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Matthews v Christie [2001] SADC 9, considered.

REDIN v DECHELLIS HOMES PTY LTD & ORS
[2020] SADC 63
Introduction
Case Against the First Defendant
Was any of the hedge growing on the plaintiff’s land?
Chronology
Agreement not to Sue
Negligence
Was there a duty of care?
Breach of Duty of Care – Royal Park Salvage
1. Lack of qualifications and skill of Royal Park Salvage to do the work
2. Failure to use a cherry picker
3. Failure to comply with the advice of Mark Elliott
4. Continuation of work after the ‘partial collapse’ of the hedge
5. Use of an excavator
Breach of Duty of Care – De Chellis Constructions
1. Failure to engage an arborist
2. Failure to instruct Royal Park Salvage to comply with the advice of Mark Elliott
3. Failure to use a cherry picker
4. Continuation of work after the ‘partial collapse’ of the hedge
5. Use of an excavator
Summary of Findings as to Duty of Care
Causation of Loss
Nuisance
Trespass
Fences Act
Contribution
Quantum of Loss
Diminution in Property Value
The Cost of Replacement
Orders

REDIN v DECHELLIS HOMES PTY LTD & ORS
[2020] SADC 63
Introduction

This is a claim for damages by the plaintiff, Mr Christopher Redin, arising from the loss of…

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 Redin v Dechellis Homes Pty Ltd

Details

AGLC: Redin v Dechellis Homes Pty Ltd [2020] SADC 63
Case: [2020] SADC 63
Decision Date: 28 May 2020

CaseChat Overview and Summary

Redin sought damages from Dechellis Homes Pty Ltd for alleged negligence, nuisance and trespass, resulting from the removal of a hedge that straddled the boundary between Redin’s property and that of his neighbour. Redin contended that the removal was negligently performed, causing damage to his portion of the hedge, necessitating its removal. Redin sought compensation for the diminution in value of his property, and/or the cost of replacing the hedge. The defendants denied liability and raised defences of accord and satisfaction, and estoppel, which were unsuccessful. The court assessed damages at $30,000 and dismissed the contribution claims between the second and third defendants.

The primary legal issues before the court were whether Dechellis owed Redin a duty of care, whether the damage to the hedge was caused by Dechellis’ negligence, and whether the defences of accord and satisfaction, and estoppel, were valid. The court examined the relationship between the parties and the circumstances in which the hedge removal occurred, to determine the existence of a duty of care. The court also considered whether the damage to Redin’s hedge was a foreseeable consequence of Dechellis’ actions and whether the defendants’ defences were valid.

The court found that Dechellis owed Redin a duty of care, as it was foreseeable that the hedge removal could cause damage to Redin’s portion of the hedge. The court held that Dechellis’ actions were negligent, as they failed to take reasonable care in removing the hedge, resulting in damage to Redin’s property. The court dismissed the defences of accord and satisfaction and estoppel, finding that there was no valid agreement or representation that would preclude Redin from bringing the action. The court assessed damages at $30,000 and dismissed the contribution claims between the second and third defendants.

In conclusion, the court found that Dechellis was liable for negligence, and awarded Redin damages of $30,000. The court rejected the defences of accord and satisfaction and estoppel, and dismissed the contribution claims between the second and third defendants. The final orders of the court were that Dechellis pay Redin $30,000 in damages, and that the contribution claims between the second and third defendants be dismissed.

Orders