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)

1. 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.

2. 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.

3. 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.

4. 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.

5. The defendants have development consent approval to undertake works on their property which, according to the affidavit relied on by the plaintiff in these proceedings, does not provide approval for fencing work or demolition of the boundary fence.

6. The urgency of the current application arises as yesterday (on Saturday, 7 October 2023) the plaintiff received a letter from the defendants notifying her that they intended to commence works to demolish the boundary fence at 7.00am on Monday, 9 October 2023 and, amongst other issues, the plaintiff has two large dogs that need to be confined. It appears from the materials before the Court that there have been some discussions and proposals made by the plaintiff to resolve the dispute and confine the nature of the works, but these have not been accepted by the defendant.

7. Based on the material filed in Court, I am satisfied that it is appropriate to grant the interim relief sought by the plaintiff until 5.00pm on Thursday, 12 October 2023, which aligns with the timing of the interim injunctions granted by the Land and Environment Court earlier this morning.

8. I am satisfied based on the evidence that there is a serious question to be tried that the defendants’ proposed works may involve an unlawful trespass on the plaintiff’s land and may constitute a nuisance. This Court has inherent jurisdiction to grant equitable injunctive relief to restrain any threatened or apprehended trespass under s 66 of the Supreme Court Act1970 (NSW). In my view, the balance of convenience favours the grant of injunctive relief for a short period, given the irrevocable nature of the destruction of the fence and the risk arising from the plaintiff’s two large dogs that need to be confined. Further, Ms Slattery has given the usual undertaking as to damages which the Court has taken into account in granting the relief sought.

9. I will order that the proceedings be returnable before me on 10.00am on Tuesday, 10 October 2023 on which occasion I anticipate that these and the Land and Environmental Court proceedings may be transferred to the Land and Environment Court as it seems more appropriate for all the issues raised by the two sets of proceedings to be dealt with together in the Land and Environment Court.

10. The plaintiff has indicated that she is able to serve the documents filed today and a copy of the orders I make by delivering them by hand to the defendants by 8.00pm today and sending copies to an email that she has used for communication with the defendants.

11. For these reasons, I make the following orders and notations:

1. Upon the undertaking of the Plaintiff to pay the requisite filing fee or obtaining deferment of payment of that fee from the Registry, grant leave to the Plaintiff to file in Court the Summons and Notice of Motion dated 7 October 2023, the affidavit of Rhonda Slattery dated 7 October 2023 and Exhibit RS-1 to that affidavit.

2. Upon the Plaintiff giving the usual undertaking as to damages, order that until 5.00pm on Thursday, 12 October 2023, David Dunn (the First Defendant) and Kim Dunn (the Second Defendant) be restrained by themselves, their servants, agents or contractors from trespassing or entering upon XX Mirreen Avenue, Davistown NSW 2251 at Lot 164 DP 5350 (Plaintiff’s Property) and interfering with and damaging the existing dividing fence located on or in the vicinity of the contiguous boundary between the Plaintiff’s Property and XX Mirreen Avenue, Davistown NSW 2251 at Lot 165 DP 5350 (Defendants’ Property).

3. Pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW), the time for service of the Summons, Notice of Motion, affidavit of Rhonda Slattery and Exhibit RS-1 (Documents) together with a copy of these orders be abridged to 8.00pm on 8 October 2023.

4. Service of the Documents and a copy of these orders is to be effected on the Defendants by:

1. hand delivery of the Documents addressed to the Defendants at the Defendants’ Property; and

2. by email to [email protected], attention David Dunn.

5. Note that Land and Environment Court proceedings 2023/123456 (LEC Proceedings) have been transferred to the Supreme Court of New South Wales and direct that the LEC Proceedings and these proceedings to be heard together.

6. List these proceedings and the LEC Proceedings before the Equity Duty Judge at 10.00am on Tuesday, 10 October 2023.

7. Liberty to apply to the parties on four (4) hours’ notice

8. These orders be entered forthwith.

TO: David Dunn and Kim Dunn being the first and second defendants.

IF YOU:

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

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Decision last updated: 10 October 2023