SSYBA Pty Ltd v Lane

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SSYBA PTY LTD -v- LANE

CORAM:   McKECHNIE J

HEARD:   25 & 26 NOVEMBER 2013

DELIVERED          :   13 DECEMBER 2013

FILE NO/S:   CIV 1647 of 2011

BETWEEN:   SSYBA PTY LTD

First plaintiff

MICHAEL JOSEPH GRIFFIN
Second plaintiff

AND

MICHAEL REUBEN LANE
First Defendant

LAMAC COMMERCIAL PLUMBING PTY LTD (IN LIQ)
Second Defendant

Catchwords:

Trespass to land - Nuisance - Liability of a director of a company - Liability of owner of land for permitting a continuing trespass - Whether vicariously liable for acts of workers who affix brackets to plaintiffs' wall - Principles of liability - Damages - Whether exemplary damages should be awarded - Comparison with other awards

Legislation:

Dividing Fences Act 1961 (WA)

Result:

Plaintiff succeeds, permanent injunction granted, damages awarded
Counterclaim dismissed

Category:    B

Representation:

Counsel:

First plaintiff                 :     Ms C H Thompson

Second plaintiff            :     Ms C H Thompson

First Defendant             :     In person

Second Defendant         :     No appearance

Solicitors:

First plaintiff                 :     Benz Legal

Second plaintiff            :     Benz Legal

First Defendant             :     In person

Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

Attorney‑General v Corke [1932] 1 Ch 89

Balanced Securities Ltd v Bianco [2010] VSC 201; (2010) 27 VR 599

Barker v The Queen (1983) 153 CLR 338

Deutsch v Rodkin [2012] VSC 450

Field Common Ltd v Elmsbridge Borough Council [2008] EWHC 2079 (Ch); (2008) All ER (D) 141

Finesky Holdings Pty Ltd v Minister for Transport (WA) [2002] WASCA 206; (2002) 26 WAR 368

Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1

Hill v Higgins [2012] NSWSC 270

Holmes v Wilson (1839) 10 Ad & El 503

Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125

Lippiatt v South Gloucestershire County Council [2000] QB 51

Microsoft Corporation v Auschina Polaris Pty Ltd (1996) 142 ALR 111

Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635

Quarmby v Oakley and Harper [2011] TASSC 20

Rylands v Fletcher [1868] LR3HL 330

Sedleigh‑Denfield v O'Callaghan [1940] AC 880; [1940] 3 All ER 349

Sefton v Tophams Ltd [1967] 1 AC 60

State of New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638

TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333

TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9; (2008) 71 NSWLR 323

Thompson‑Schwab v Costaki [1956] 1 WLR 335

Westripp v Baldock [1938] 2 All ER 779

Whitehaven Coal Mining Ltd v Tomaska [2012] NSWSC 1445

Windridge Farm Pty Ltd v Grassi [2011] NSWSC 196; (2011) 254 FLR 87

McKECHNIE J: 

Introduction

  1. It is a great pity that Mr Lane did not remove the brackets which had been placed onto his neighbour's wall when he was politely asked to do so on 23 November 2008.  Had he acted then, he would have saved Mr Griffin a lot of stress and inconvenience and…

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Details
Case
[2013] WASC 445
Decision Date

CaseChat Overview and Summary

In the case of SSYBA Pty Ltd v Lane, the plaintiff sought relief for the defendant's ongoing trespass to their property through the installation and maintenance of brackets on the plaintiffs' wall. The defendant, Mr. Lane, was both a director and shareholder of the company responsible for the trespass, and he was also the landlord of the premises from which the trespass originated. The dispute was adjudicated by the court which had to determine the extent of Mr. Lane's liability for the trespass, including whether he could be held vicariously liable for the actions of the company's employees and whether he should be held personally liable for permitting the trespass to continue.

The legal issues before the court encompassed the principles of vicarious liability, personal liability for directors in relation to torts committed by their companies, and the liability of a landowner for permitting a continuing trespass. Specifically, the court had to examine whether Mr. Lane's role as a director and landlord rendered him liable for the company's actions, and if his knowledge of the trespass and his failure to act constituted a sufficient basis for holding him personally liable. Additionally, the court considered whether exemplary damages should be awarded, comparing them with other damages claimed.

In reaching its decision, the court applied established principles of liability, emphasizing that the holding of an office in a company does not automatically make a director liable for the company's torts. However, the court found that Mr. Lane's conduct and his relationship with the tortious actions warranted personal liability. Given his controlling role in the company and his knowledge of the trespass, the court held Mr. Lane liable for the ongoing trespass. The court also determined that exemplary damages were appropriate given the defendant's conduct, which demonstrated a wilful disregard for the plaintiffs' property rights.

The court ordered Mr. Lane to pay damages to the plaintiffs, including compensation for the trespass and exemplary damages, reflecting the seriousness of his actions. The court's ruling underscored the importance of directors taking responsibility for their companies' actions, especially when they are aware of ongoing trespasses on neighbouring properties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Microsoft Corporation v Auschina Polaris Pty Ltd (1996) 142 ALR 111, Lindgren J had to consider the liability of a director of a company which had sold unlicensed reproductions of computer software opened by the applicant. He commenced by setting out certain propositions which seem to be uncontroversial in relation to tortious activity:(3)The principles governing vicarious liability of an employer for the torts of its employee do not govern the present question: WEA at FCR 283.(4)The holding of an office in a company, such as that of director or even managing director, does not itself suffice to render the office-holder liable.(5)It is not necessary that the director know that the conduct in question is tortious.(6)In any particular case it is necessary to assess closely the director's conduct and its relationship with the tortious conduct for which the company is liable (121). Lindgren J then proceeded to analyse a number of authorities which it is not necessary to set out before concluding:With great respect, however, I find the 'directed or procured' test more satisfactory than the 'making the tortious act his own' test. In any event, the former test is supported by Australian authority which I should follow unless convinced that it is clearly wrong. I am not convinced that it is clearly wrong (125).It may be that a consequence of the view which I favour is that in the case of a 'one man company', in the sense of a company, all of whose relevant acts, omissions and states of mind are exclusively those of one human being, that human being will be liable for the tortious conduct of the company, at least in cases other than 'dealings cases'. I find nothing in principle or authority inconsistent with this result (126). The present case is not quite in that category. True it is that Mr Lane is the controlling mind of the company, but he was not the only member of the business. However, whether or not there were other persons with responsibility within the company, Mr Lane was its director and only shareholder. Any profit made was his. He was also its landlord. From the letter written to him and received before 24 November 2008 he knew that brackets had been affixed to the east wall, and that hoses were hanging off them. He also knew that the plaintiffs had not consented to this trespass. Moreover, even accepting (although there is no evidence) that Mr Lane was busy from time to time with other plumbing projects away from Bunbury and that indeed in September 2011 he was as he says in the United States for a month, it is absolutely inconceivable that he did not ever visit the LCP yard over the three years between receiving the first letter and the eventual removal of the brackets. Having regard to the photographs which have been tendered in evidence, any person visiting the yard would have been bound to have seen the brackets and the hoses hanging from them. Both as landlord and as the controlling mind of the company he had a duty to remove the brackets. He also had a duty to instruct LCP staff not only to remove the brackets but to refrain from any further trespasses. He had a duty as neighbour not to allow or permit his land to be used to facilitate a trespass on the plaintiffs' land in the light of his knowledge. This he manifestly failed to do.