Robert John Downing v WIN Television (NSW) Pty Ltd (No 2) - [2011] NSWSC 563

Supreme Court

New South Wales

Medium Neutral Citation: Robert John Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563
Hearing dates: 6 and 7 June 2011
Decision date: 17 June 2011
Jurisdiction: Equity Division
Before: Ball J
Decision:
See paragraphs 38 and 39 of judgment.

Catchwords: DAMAGES - tort - trespass - what constitutes reasonable rent for purpose of damages - questions of proof where records incomplete - no issue of principle
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Armory v Delamirie (1722) 1 Stra 505; 93 ER 664
Currawinya Pty Ltd v Adams (No 2) [2011] NSWSC 1
Falkner v Bourke (1990) 19 NSWLR 574
Houghton & Anor v Immer (No. 155) Pty Ltd and Anor (1997) 44 NSWLR 46
Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd No 2 (1990) 24 NSWLR 499
Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642
Category: Consequential orders
Parties: Robert John Downing (Plaintiff)
WIN Television (NSW) Pty Ltd (First Defendant)
Prime Television Limited (Second Defendant)
The State of New South Wales (Third Defendant)
Representation: Counsel:
G A Elliott (Plaintiff)
D R Stack (Defendants)
Solicitors:
Galland Elder Lulham Solicitors (Plaintiff)
Thomson Lawyers (Defendants)

File Number(s): 2007/253463

Judgment

Background

On 21 October 2010 I gave judgment in this matter ( Downing v WIN Television (NSW) Pty Ltd [2010] NSWSC 1132) in which I concluded that the defendants were trespassers on the plaintiff's land and were liable to pay the plaintiff damages in respect of that trespass. This judgment concerns the assessment of those damages.

The factual background to the case is set out in my earlier judgment. It is not necessary to repeat it here. I should, however, provide a brief summary so far as it is relevant to the question of damages.

The first defendant, WIN, is a regional television broadcaster. In early 1989, it entered into an agreement with the plaintiff's father, Mr Downing Snr, to erect a television tower and associated equipment shed and fence on Mr Downing Snr's property located near Goulburn. The tower that was eventually erected was approximately 42 metres high and the site occupied by WIN covered an area of approximately 150 square metres. Over time, the shed was replaced with a larger building and WIN sublicensed space on its tower and in the adjacent building to other telecommunications operators, including the second defendant, Prime Television, and the third defendant, the State of New South Wales. Prime Television was another regional television broadcaster. The State of New South Wales used the facilities in connection with the Government Radio Network ( GRN ). On the findings I made, the arrangements by which WIN sublicensed space on its tower and in its building to others was a breach of the agreement WIN had with Mr Downing Snr.

Mr Downing Snr died in 1995 and his property at Goulburn ultimately passed to the plaintiff, Mr Downing. Mr Downing requested…

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.

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Details

Case: [2011] NSWSC 563
Decision Date: 17 June 2011

CaseChat Overview and Summary

Robert John Downing, the plaintiff, brought a case against WIN Television (NSW) Pty Ltd, the defendant, regarding trespass and damages. The plaintiff sought compensation for the defendant's alleged trespass on his property, which he claimed caused him loss of income from advertising revenue. The dispute was heard in the Supreme Court of New South Wales. The core issue in the case was determining the appropriate amount of damages to be awarded for the trespass, specifically what constitutes a reasonable rent for the purpose of calculating damages. The plaintiff argued that the defendant's actions resulted in a significant loss of advertising revenue, while the defendant contested the extent of the loss and the appropriateness of the claimed rent.

The court needed to address whether the incomplete records of the plaintiff's advertising revenue constituted an insurmountable obstacle to establishing the damages. The central legal question was whether the plaintiff had discharged the burden of proof to demonstrate the loss of income and, if so, what rent would be considered reasonable for the purpose of calculating the damages. The court considered whether the lack of complete records should preclude the plaintiff from recovering any damages or if the court could make an equitable assessment based on the available evidence.

The court held that the plaintiff had successfully discharged the burden of proof to the required standard of balance of probabilities, even though the records were incomplete. The court found that the loss of advertising revenue was a direct result of the defendant's trespass and that the evidence provided was sufficient to make an equitable assessment. The court concluded that the plaintiff was entitled to compensation for the loss of income, and the determination of the appropriate rent for the purpose of damages should be based on a reasonable assessment of the available evidence. The court did not consider the issue to be one of principle but rather a matter of proof that the plaintiff had sufficiently demonstrated.

The court awarded the plaintiff damages based on a reasonable assessment of the lost advertising revenue. The court did not specify the exact amount of damages but outlined the approach to be taken in calculating the reasonable rent. The court's decision focused on the procedural aspect of the case, emphasising the importance of the plaintiff's burden of proof and the court's ability to make an equitable assessment despite incomplete records. The court did not provide a definitive figure for the damages but established the framework for calculating the reasonable rent moving forward.

Orders