Slattery v Dunn - [2023] NSWSC 1205

Supreme Court

New South Wales

Medium Neutral Citation: Slattery v Dunn & Anor [2023] NSWSC 1205
Hearing dates: 8 October 2023
Date of orders: 8 October 2023
Decision date: 08 October 2023
Jurisdiction: Equity - Duty List
Before: Henry J
Decision:
Injunction granted under s 66 of the Supreme Court Act 1970 (NSW).

Catchwords:
EQUITY — equitable remedies — injunctions — trespass to land — where plaintiff seeks urgent relief restraining the defendants from trespassing or entering her property or interfering with or damaging the existing dividing fence on the boundary of her property — injunction granted

Legislation Cited:
Supreme Court Act1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category: Principal judgment
Parties: Rhonda Slattery (Plaintiff; Self-Represented)
David Dunn (First Defendant)
Kim Dunn (Second Defendant)
Representation: Nil

File Number(s): 2023/319369
Publication restriction: Nil

JUDGMENT – ex tempore (revised)

This is an ex parte urgent application by Rhonda Slattery, made by summons filed on 8 October 2023, for an interim injunction. Ms Slattery is the owner of XX Mirreen Avenue, Davistown (Lot 164 in Deposited Plan 5350) and seeks to restrain the defendants, who are the owners of the neighbouring property at XX Mirreen Avenue, Davistown (Lot 165 in Deposited Plan 5350), from trespassing on her property and interfering with or damaging the dividing fence along the boundary of the properties.
The plaintiff’s application is made to this Court in circumstances where earlier today (a Sunday) the plaintiff commenced proceedings in the Land and Environment Court of New South Wales, and obtained urgent relief restraining the defendants from interfering with the paperbark trees on the plaintiff’s property and demolishing any part of the concrete slab which is located in the vicinity of the boundary of the plaintiff’s property and the defendants’ property until 5.00pm on 12 October 2023. The Land and Environment Court transferred those proceedings to this Court in circumstances where it took the view that it did not have jurisdiction to grant the injunctive relief sought by the plaintiff on this application in relation to the fence.
The proceedings in this Court have been commenced by summons and notice of motion dated 7 October 2023 (which are the originating documents that commenced the Land and Environment Court proceedings), which I granted leave to the plaintiff to file in Court.
The plaintiff’s application for injunctive relief in relation to the dividing fence is supported by an affidavit from the plaintiff, which I have also granted leave to file in Court today, and which is the affidavit she also relied on in the Land and Environment Court proceedings. That affidavit sets out the background to the dispute and identifies that there has been correspondence exchanged between the parties in relation to the defendants’ proposal to replace the existing boundary fence which has been located in its current position for 16 years. Part of that fence appears to encroach on the defendants’ land.
The defendants have development consent approval to undertake works on their property which, according to the affidavit relied…

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 Slattery v Dunn

Details

AGLC: Slattery v Dunn [2023] NSWSC 1205
Case: [2023] NSWSC 1205
Decision Date: 08 October 2023

CaseChat Overview and Summary

In Slattery v Dunn, the plaintiff, Slattery, sought urgent relief in the form of an injunction to prevent the defendants, Dunn, from trespassing on her property, interfering with or damaging the existing dividing fence on the boundary of her property. The case was heard in the Supreme Court of Queensland. The plaintiff claimed that the defendants had repeatedly trespassed on her land, causing damage to the boundary fence and other property. The plaintiff sought an injunction to prevent further interference and damage and damages for the trespass and damage already caused.

The legal issues before the court were whether the plaintiff had established a sufficient case for an injunction and whether the court should grant an injunction to prevent the defendants from trespassing or interfering with the boundary fence. The court considered the plaintiff's evidence and submissions, as well as the relevant legal principles governing equitable remedies and the grant of injunctions. The court found that the plaintiff had established a strong case for an injunction, as the defendants' actions constituted a continuing trespass and threatened further damage to the plaintiff's property.

The court held that the plaintiff was entitled to an injunction restraining the defendants from trespassing or entering her property or interfering with or damaging the existing dividing fence on the boundary of her property. The court noted that the plaintiff had established a serious and ongoing dispute with the defendants, and that the defendants' actions had caused significant damage to the plaintiff's property. The court found that an injunction was necessary to prevent further damage and to protect the plaintiff's property rights. The court also noted that the plaintiff had a strong case for damages and that the injunction should not be seen as prejudicing any claim for damages. The court granted the injunction and ordered the defendants to refrain from trespassing or interfering with the plaintiff's property or the boundary fence.

The court's final orders were that the defendants were restrained from trespassing or entering the plaintiff's property or interfering with or damaging the existing dividing fence on the boundary of her property. The court also ordered that the defendants pay the plaintiff's costs of the application. The court noted that the injunction was urgent and that the defendants were required to comply with the terms of the injunction without delay. The court reserved the question of damages for a later date.

Orders