Saaticho Pty Ltd v Evr Group Pty Ltd - [2022] VSC 45

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S ECI 2022 00282

SAATICHO PTY LTD (ACN 165 548 336) & ORS (according to the attached Schedule)	Plaintiffs
-and-
EVR GROUP PTY LTD (ACN 605 728 701) & ORS (according to the attached Schedule)	Defendants

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 8 February 2022
DATE OF JUDGMENT:	8 February 2022 (delivered ex tempore, revised 11 February 2022)
CASE MAY BE CITED AS:	Saaticho Pty Ltd & Ors v EVR Group Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 45

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INTERLOCUTORY INJUNCTION – Tower crane incursions into plaintiffs’ airspace from adjoining construction site – Trespass – Balance of convenience – Which party to bear risk of uncertain variables precluding the cessation of incursions.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms R McCarthy of Counsel	DSA Law
For the First and Second Defendants	Ms L Collaris of Counsel	YSL Lawyers
For the Third Defendant	Mr D Cain (Solicitor)	KCL Law

HIS HONOUR:

The first plaintiff, Saaticho Pty Ltd (‘Saaticho’), is the registered proprietor of land in Keilor Road, Essendon. That property is comprised of a shop front (‘retail premises’) and a residential home at the back of the property which is occupied by the second and third plaintiffs and their family (‘residential property’). The second and third plaintiffs are the directors and shareholders of Saaticho.

The first defendant, EVR Group Pty Ltd (‘EVR’), is the owner of the adjoining property in Keilor Road (‘construction site’). Its director is Mr Jose Romero. The second defendant, Lucas Emilio De Matteis Pty Ltd (‘LEDM’), was the builder who contracted with EVR to construct a five storey block of serviced apartments on the adjoining property.

On 17 January 2021, a tower crane was erected on the construction site. This crane can, and does, pass through the air space above the first plaintiff’s property, either when it is being used for the purposes of the construction works or when it is in neutral mode and not immediately in use.

I pause to note that the tower crane is a very substantial piece of equipment. When it is not in use it is designed to swing to accommodate the prevailing weather conditions and avoid damage to its gears. This is described as ‘weathervane mode’.

On 1 February 2021, the plaintiffs entered into an agreement with EVR and LEDM by which the first plaintiff granted a license to EVR and LEDM to use the airspace above the first plaintiff’s property in return for LEDM and EVR, amongst other obligations, finding suitable alternative accommodation for the second and third plaintiffs’ family, and paying a licence fee of $800 per week. The relationship between the parties was not particularly cooperative but it is unnecessary to explore the conflict that arose between them in any detail.

By 21 March 2021, the plaintiffs’ family had moved…

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: [2022] VSC 45
Decision Date: 8 February 2022 (delivered ex tempore, revised 11 February 2022)

CaseChat Overview and Summary

The dispute in Saaticho Pty Ltd v Evr Group Pty Ltd involves the plaintiffs, Saaticho, who own and operate a construction site in Sydney, and the defendants, Evr Group, who own and operate an adjoining construction site. The plaintiffs sought an interlocutory injunction to prevent the defendants from allowing their tower cranes to encroach into the plaintiffs’ airspace, alleging trespass and nuisance. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the plaintiffs had established a serious issue to be tried regarding the alleged incursions and whether the balance of convenience favoured the grant of an interlocutory injunction. The court had to consider the burden of proof required for an interlocutory injunction, the risk of uncertain variables precluding the cessation of incursions, and which party should bear that risk.

The court held that the plaintiffs had not established a serious issue to be tried as the evidence was insufficient to prove the incursions. Furthermore, the court found that the balance of convenience did not favour the grant of an interlocutory injunction. The court held that the risk of uncertain variables precluding the cessation of incursions should be borne by the party seeking the injunction, which in this case, was the plaintiffs. The court also noted that the defendants had taken steps to mitigate the risk of incursions, including the installation of additional monitoring equipment. The application for an interlocutory injunction was dismissed.

No further orders were made by the court. The case serves as a reminder of the high threshold that must be met for an interlocutory injunction to be granted and the importance of sufficient evidence to support such an application.

Orders