Stereff v Rycen - [2010] QDC 117

DISTRICT COURT OF QUEENSLAND

CITATION:

Stereff v Rycen & Anor [2010] QDC 117

PARTIES:

PETER ROBERT PAUL STEREFF

(Plaintiff)

AND

ANTHONY PETER RYCEN and

BERNADETTE DOROTHY RYCEN

(Defendants)

FILE NO/S:

D25/05

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Gladstone

DELIVERED ON:

26 March 2010

DELIVERED AT:

Gladstone

HEARING DATE:

30 April, 1 May 2009 (with further written submissions received to 5 June 2009)

JUDGE:

Irwin DCJ

ORDER:

I give judgment for the plaintiff for trespass to land and nuisance against Anthony Peter Rycen as follows:

(a)Restitutionary compensatory damages$15,314

(b)Aggravated compensatory damages$15,000

(c)Interest at 10% per annum from$18,734

20 January 2004 to 26 March 2010

($30,314 x 10% x 6.18)

(d)Exemplary damages$25,000

TOTAL  $74,048

CATCHWORDS:

TRESPASS – TRESPASS TO LAND – where the plaintiff was a landlord – where the plaintiff did not prove that he was in exclusive possession of the land at the times of the alleged trespass – whether the plaintiff could sue in trespass as owner of the land, for compensation for damage to the reversion

NUISANCE – WITHDRAWAL OF SUPPORT FROM LAND – where the plaintiff was a landlord – where the plaintiff did not prove that he was in exclusive possession of the land at the times of the alleged interference – whether the plaintiff could sue in nuisance as owner of the land for damage to his reversion

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – CIVIL JURISDICTION – PROCEDURE UNDER THE RULES OF THE COURT – PLEADING – GENERALLY – where the plaintiff claims the defence discloses deemed admissions of quantum of damages pursuant to rule 166(5) of the Uniform Civil Procedure Rules 1999 – whether the pleading discloses sufficient explanation to amount to a denial – whether the plaintiffs conduct in seeking to prove facts on which the court could make a factual assessment of the quantum of damages was inconsistent with reliance on the proposition, not made until final submissions that quantum was not in issue by virtue of rule 166(5) – whether there was good reason to relieve the defendants of any deemed admissions

PRINCIPAL AND AGENT – IN GENERAL – where the male and female defendants were husband and wife – where the male defendant committed trespass and nuisance on the plaintiffs land in the course of doing construction work on a common boundary – where the female defendant agreed with the male defendant’s plan to do construction work – where the female defendant knew excavation would be involved – where the female defendant handed the project over to the male defendant – where the female defendant never directed the male defendant in the manner of the undertaking – where the female defendant never instructed the male defendant to encroach or trespass on the plaintiff’s land – where the female defendant was not aware the male defendant had trespassed on the plaintiff’s land until it was too late – whether the male defendant acted as the agent of the female defendant for the purpose of entering onto the plaintiff’s land and for the purpose of dealing with the plaintiff or any other third party so as to make her a joint tortfeasor with him

DAMAGES – COMPENSATORY DAMAGES – whether the plaintiff is entitled to compensatory damages for the conduct of the defendants for trespass to his land, and nuisance for withdrawal of support from the land

DAMAGES – AGGRAVATED DAMAGES – where the male defendant intentionally caused an excavator operator to excavate on the plaintiff’s land, without first advising the plaintiff – where the male defendant responded angrily and aggressively to the plaintiff’s insistence that he cease encroaching on the land – where the plaintiff experienced feelings of violation as a result – where the male defendant removed further soil from the plaintiff’s land after being told by the plaintiff to stop – where the male plaintiff committed a further trespass one month later by dumping soil on the plaintiff’s land – where the male defendant again responded angrily and aggressively when he was told to stop – where the male defendant dumped further soil on the plaintiff’s land after being told to stop – whether in these circumstances aggravated damages should be awarded

DAMAGES – EXEMPLARY DAMAGES – where the male defendant intentionally caused an excavator operator to excavate on the plaintiff’s land, without first advising the plaintiff – where the male defendant responded angrily and aggressively to the plaintiff’s insistence that he cease encroaching on the land – where the plaintiff experienced feelings of violation as a result – where the male defendant removed further soil from the plaintiff’s land after being told by the plaintiff to stop – where the male plaintiff committed a further trespass one month later by dumping soil on the plaintiff’s land – where the male defendant again responded angrily and aggressively when he was told to stop – where the male defendant dumped further soil on the plaintiff’s land after being told to stop – whether in these circumstances exemplary damages should be awarded

Uniform Civil Procedure Rules 1999 (Qld) r 149, r 150, r 155(4), r 157, r 161(1), r 166, r 367, r 375, r 376, r 444

Limitation of Actions Act 1974 (Qld) s 10(a)(a)

Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeships Scheme Ltd [2008] QCA 100, applied

Ballesteros v Chidlow No. 2 [2005] QSC 285, applied

Coco v The Queen (1994) 174 CLR 427, cited

Coleman v Watson & Shaw & Anor [2007] QSC 343, applied

Cooper v Crabtree (1882) 20 Ch D 589, cited

Costi v Minister of Education (1973) SASR 331, distinguished

Dunn & Anor v Howard & Anor [2001] QDC 030, cited

Fontin v Katapodis (1962) 108 CLR 1, cited

Georgeski v Owners Corporation Sp 49833 [2004] NSWSC 1096, cited

Gray v Motor Accident Commission (1998) 196 CLR 1, cited

Grove v Purvis [2003] QDC 151

Jones v Dunkel (1959) 101 CLR 298, cited

Jones v Llanrwst Urban District Council [1911] 1 Ch 393, applied

Kidgill v Moor 9 CB 364, cited

Lamb v Cotongo (1987) 164 CLR 1, cited

Lockwood Buildings v Trust Bank [1995] 1 NZLR 22, applied

Mayfair Property Company v Johnston [1894] 1 Ch 508, cited

Meredith v Paloncam Pty Ltd & Anor [2000] QCA 113, cited

Petersen v Moloney (1951) 84 CLR 91, cited

Plenty v Dillon (1991) 171 CLR 635, cited

Pollack v Volpato [1973] 1 NSWLR 653, cited

Port Stephens Shire Council & Anor v Tellamist Pty Ltd [2004] NSWCA 353, applied

Proprietors of the Centre BUP No. 343 v Bourne [1984] 1 Qd R 613, cited

Seabrook v Allianz Australia Insurance Limited & Ors [2005] QCA 58, cited

Rodrigues v Ufton (1894) VLR 539, distinguished

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, applied

Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, applied

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 16; 79 ALJR 129; 211 ALR 342, cited

Traian v Ware [1957] VR 200, cited

Trend Management Ltd v Borg [1996] NSWSC 588, cited

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, cited

COUNSEL:

G.F. Crow for the plaintiff

A.W. Appleton (Solicitors) for the defendants

SOLICITORS:

Tony Goodwin & Company for the plaintiffs

Peter Roche & Associates for the defendants

At all material times the plaintiff was the owner of Lot 298 on RP 617760 County of Clinton, Parish of Gladstone, being a residential property situated at 6 Beech Avenue, Gladstone; and the defendants[1] were the owners of Lot 297 on RP 617760 County of Clinton, Parish of Gladstone, being a residential property situated at 4 Beech Avenue, Gladstone. There was a common boundary between their land, which consisted of a slope from the plaintiff’s land down to the defendant’s land. This is the “dispute boundary” in relation to these proceedings.
[1]In this judgment I refer to the male defendant as Mr Rycen and the female defendant as Mrs Rycen.

On 11 August 2005, the plaintiff commenced the proceedings claiming damages for trespass to land and nuisance, together with exemplary damages; an injunction requiring the defendants to construct an appropriate retaining wall to prevent continuing nuisance upon the plaintiff’s land by removal of the earth causing a loss of lateral support to that land; interest; and costs.[2] The application for the injunction was not pursued in the proceedings before me.
[2]Mrs Rycen’s liability is alleged on the basis that Mr Rycen acted as her agent at all material times. This is denied.

Factual background

The plaintiff purchased the property at 6 Beech Avenue in 1999. He has never resided in the house on the property. He kept the house for rental purposes.[3] It had been regularly occupied by tenants until the events occurred which gave rise to these proceedings. He estimated that before this, the occupancy rate was about 95%.[4]
[3]T 1-44 ll 30-33.
[4]T 2-53 ll 43-51.

The defendants purchased the property at 4 Beech Avenue in 2002 as joint owners. They let their property to tenants until December 2003.

From the time of the plaintiff’s purchase of 6 Beech Avenue,[5] there was a freestanding bluestone rock wall which was believed to be the common boundary with 4 Beech Avenue. The plaintiff described this as a wall of boulders, and testified that it occupied about four-fifths of the length of the boundary.[6] Photographs of that wall taken by Ms Rycen on 7 February 2004 form Exhibit 20.
[5]T 1-46 ll 11-12.
[6]T 1-45 ll 12-15.

According to the plaintiff, there were four trees on the embankment between the rock wall and the paling fence near his house on the top of the embankment. These were an oleander bush, two hibiscus bushes and an umbrella or rubber tree.[7] He thought these were useful and attractive, particularly the oleander bush which had flowers almost all year round. He estimated it was six to seven feet high and close to three metres in diameter; and the hibiscus was about five and a half feet high and about a metre to a metre and a half in diameter.[8] These are represented on an “Original Plan View” that he prepared to show his recollection of the boundary prior to the commencement of the works which give rise to this dispute.[9]
[7]T 1-46 ll 10-23.
[8]T 1-47 ll 1-25.
[9]Exhibit 4.

In or about October 2003, Mr Rycen approached the plaintiff with the proposition to construct a retaining wall upon the common boundary. He expressed the view that he wished to construct a coppers log retaining wall. The plaintiff disagreed with this and expressed his view that he wished a besser brick and concrete retaining wall to be constructed. Despite several negotiations, they could not reach agreement as to the appropriate form of retaining wall.[10]
[10]Amended Statement of Claim filed by leave on 1 May 2009, para 5. These allegations are admitted in the defence of the defendants, para 4. The plaintiff also alleged that this was to be a “properly engineered” construction. However, the defendants do not recall this and therefore did not admit the allegation.

The plaintiff’s evidence about this was:[11]

“His proposal was that I come in halves with them to build a two metre high Koppers log wall. My reply to that was that I wasn’t confident of a Koppers height – Koppers log wall being that good, I preferred a besser block brick wall. We spoke for some time about different other types of walls, like sleeper walls and such like. We concluded the conversation saying that I would go out – he offered a – a price of the Koppers log wall and best of my recollection was round about $6,000. I said, oh well, for comparison I would go out and get a rough idea how much a besser block brick wall would cost because I preferred to put something in that was exactly the same as already there, extended it along and – for permanency.”

This reference to putting in something the same as was already there was to a besser block retaining wall at the back of the plaintiff’s property. It is marked as the “Existing Besser Block Brick Wall” on Exhibit 4.

[11]T 1-48 ll 31-43.

The plaintiff’s evidence was that he told Mr Rycen that due to the costs involved, he would prefer to save up the money and do it in the next financial year.[12] That is the year commencing on 1 July 2004.
[12]T 1-48 ll 55-58.

He said that when he advised the cost of constructing a besser brick wall would be approximately $10,000, Mr Rycen made a further proposal, which he did not accept. This proposal included excavating out his land from the level of Mr Rycen’s land for a distance of approximately three metres to the paling fence. He also said that they agreed it would be reasonable to assume that the dispute boundary ran from halfway between the two water metres at the front of their properties to the corner of the besser block wall at the back of his property. The water metres are also marked on Exhibit 4.[13]
[13]T 1-49 ll 10-34.

The plaintiff said that while these conversations were reasonably friendly, Mr Rycen remained quite insistent that he wanted a coppers log wall. The plaintiff inferred there were cheaper ways to build a besser block wall using second classification bricks. However, no agreement was reached.[14]
[14]T 1-49 l 50 to T 1-5 l 10.

In paragraph 6 of the defence, the following facts are relied upon, with reference to these discussions to show that the plaintiff has not established a cause of action in trespass or nuisance:

“(a)The defendants purchased their property in 2002. Up until December 2003 the defendants let their property to tenants.
(b)At the time of purchasing the property the defendants believed the boundary between it and the plaintiff’s property was marked by a fence which they later discovered was several metres inside the plaintiff’s boundary.
(c)It was not until the defendants had their boundaries surveyed on 12 January 2004 that they discovered the location of the true boundary between the plaintiff’s and the defendants’ property.
(d)In or about October 2003 the male defendant telephoned the plaintiff to come to an agreement to have the sloping area cleaned up. Because it was a very steep grade of about 60 degrees it was very hard to maintain and it was overgrown with bushes and thick grass a metre high. Up until this time the area in question was a ‘no mans land’ and was maintained in a limited fashion by the defendants’ tenants.
(e)During the same telephone conversation the male defendant raised the question of the supporting wall which was about 1.3m high and composed of large rocks measuring a third to half a metre in diameter.
(f)The defendants had tenants in their property at the time of the telephone conversation and they had complained that rocks were coming loose and falling. The rocks were potentially quite dangerous to children, and the male defendant explained to the plaintiff in the first telephone conversation that something needed to be done about them.
(g)In the first conversation no agreement was reached either in relation to the cleaning up of the area or the construction of a new retaining wall. The plaintiff simply stated to the male defendant his preference for a rock block retaining wall.
(h)In or about November 2003 the male defendant again telephoned the plaintiff regarding the construction of a retaining wall in place of the freestanding rock retaining wall but still no agreement was reached.”

Mr Rycen’s evidence was that from the start of their conversations about this issue, the plaintiff wanted what he described as a “two metre rock block wall” to bring it up to the level of the rest of his land. He said his response to the plaintiff at this stage was, “fair enough, we’ll work something out about that later”. He also said that after his grandchildren had been playing around the loose rocks at Christmas time, he made the phone call to the plaintiff in which he said that something needed to be done about this, and the plaintiff’s answer was the same. His response to the plaintiff was, “we’re going to have to do something”.[15] However, contrary to this, he agreed in cross‑examination that he never raised any question of the wall being dangerous until well after the work the subject of these proceedings had commenced.[16]
[15]T 2-75 ll 20-50.
[16]T 2-98 ll 10-15.

As a result, at the time of the first act of trespass and nuisance, which is alleged to have occurred on 20 January 2004, the position between the plaintiff and Mr Rycen with reference to the dispute boundary is summarised in the following passage of cross-examination of Mr Rycen:[17]
[17]T 2-98 ll 20-39.

“MR CROW: Now, you accept, don’t you, that in the October of 2003 or thereabouts there were a serious [sic] of discussions between yourself and Peter Stereff about – about doing something on the – one of the area between the properties?-- That’s correct.
I think you’ve told us that he was resolute that he wanted a – a rock block wall built?-- Hmm-mmm.
And you were equally resolute that you wanted a Koppers – Koppers log wall built?-- That’s correct.
And you accept, don’t you, that immediately behind you or behind where the area was, there was already an existing rock block wall?-- Yeah.
On your back boundary?-- Yeah.
And you accept that you two gentlemen, couldn’t agree, could you, what sort of wall was to be constructed?-- No.”

It is clear the plaintiff had not authorised Mr Rycen to enter or excavate on his land in respect of anything that he may have decided to do concerning the dispute boundary.

The plaintiff’s evidence is that his next involvement with this matter was to receive telephone messages ,which were left with his mother and sister on 19 January 2004, that it was extremely urgent he meet the defendant the next day.[18] This is consistent with Mr Rycen’s evidence that he tried ringing him on that date about the rubber tree.[19]
[18]T 1-50 ll 10-26.
[19]T 2-29 ll 16-20; T 2-80 ll 46-53.

When the plaintiff attended at his property with his father, Mr Iwan Stereff, on 20 January 2004 he observed that earthmoving equipment had cut into it.[20] He alleges that:[21]

“The male Defendant had used earthmoving equipment to remove a large amount of embankment on the Plaintiff’s land causing the cut to exceed one metre into the Plaintiff’s land from the common boundary. In doing so, the male Defendant had removed three bushes from the Plaintiff’s land. The male Defendant performed the above work without the knowledge and without the consent of the Plaintiff. At that stage the male Defendant had removed earth and other material from the Plaintiff’s land up to a distance of one metre from the common boundary however there was still approximately 4 metres of the existing wall of boulders formerly constituting the area of the boundary between the common properties.”

[20]Amended Statement of Claim, para 6 filed by leave on 1 May 2009.

[21]Ibid.

In relation to this, in paragraph 6 of the defence, the following facts were relied upon to show the plaintiff had not established a cause of action in trespass and nuisance:[22]
[22]This paragraph is as amended by the defendants in accordance with my leave which was granted on 30 April 2009. The amendments are marked in red on the pleading and are identified in this judgment by the words which are crossed out and underlined.

“i)In early January 2004 the defendants came to an agreement with their neighbour on the other side of their property (the western side) to build a retaining wall of coppers logs on that side and the defendants decided at the same time to remove the rocks on the dispute boundary and brace the slope with coppers logs.
j)The defendants hired a contractor with an excavator to do both jobs. The job on the western boundary was completed first and then the contractor immediately moved to the dispute boundary with his excavator.

k)Before beginning to work on the dispute boundary the male defendant marked out what he believed to be the boundary line ~~(which had previously been identified by survey)~~ so as to ensure that the coppers log retaining wall was constructed on the defendants’ land.
l)The excavator contractor began work on the dispute boundary by removing the freestanding rocks and then began to excavate on the defendants’ side of the boundary line. As he did so the soil on the plaintiff’s land began to crumble and fall away into the excavator.
m)It was immediately obvious that the subsidence of the soil would make it impossible to construct the retaining wall, so the male defendant authorised the excavation contractor to take a small amount of extra soil from what he believed to be the plaintiff’s land genuinely believing that the plaintiff would have no objection to this because:
·     the male defendant had intended to replace the soil immediately the retaining wall was constructed;
·     the encroachment was insignificant (especially having regard to the fact that the sloping area had formerly been a “no man’s land” under the control of the tenants of the defendant’s property; and
·     the retaining wall was to be constructed on the defendant’s side of the boundary at no cost to the plaintiff.”

Paragraph 6(m) of the defence is a concession that Mr Rycen committed trespass. This is also conceded by Mr Appleton in his submission on behalf of the defendants.[23] Under cross‑examination, Mr Rycen said he had never disputed that the excavator worked on the plaintiff’s side of the boundary and that this was his fault.[24]
[23]Submissions on behalf of the defendants, dated 21 May 2009, p 2.
[24]T 2-104 ll 52-55; see also T 2-106 ll 20-22.

During the hearing, Mr Rycen gave evidence that:[25]

“I had the machinery there and I’d ask their – block with the excavator, I said, ‘Just’ – ‘We’ll run along the boundary here and clean it up and we can do something with the boundary, all the loose rocks.”

[25]T 2-75 ll 44-47.

In accordance with the amended defence, he gave evidence that this happened before he got the survey done.[26] This is a reference to the survey which was conducted on 12 January 2004, as asserted in paragraph 6(c) of the defence. There was evidence from Mr McNee, who was responsible for the survey, that it was commenced on this date, with the marks being placed on the following day.[27] Mr Rycen’s evidence-in-chief was that the excavation was done on 6 or 7 January 2009.[28] He said that he marked out the boundary line halfway between the two water metres to the peg mark in the back wall with chalk and gave the excavator full reign to dig out along that line.[29] He said they realised they had gone over into the plaintiff’s land by probably a metre or three-quarters of a metre. He denied this was intentional.[30] Although he knew the contractor who drove the excavator,[31] he was never called as a witness.
[26]T 2-77 ll 1-2.
[27]T 1-35 ll 7-31.
[28]T 2-77 l 4.
[29]T 2-76 ll 52-55.
[30]T 2-77 ll 24-37.
[31]T 2-98 l 41 to T 2-99 l 6.

An issue which arises for determination is whether this excavation was carried out prior to Mr McNee’s survey. As indicated, the original defence in paragraph 6(k) was expressly to the effect that it had been. The determination of this issue is central to an assessment of Mr Rycen’s credibility and reliability as a witness. In addressing this issue, it is relevant that in cross‑examination of Mr Rycen, with reference to their conversation after the plaintiff had attended the property on 20 January 2004 and made his observations of the excavation, there was the following exchange:[32]

“And you said to him words to the effect, ‘I had to go ahead, I’ve been trying all December to contact you and you never got back to me. The reason I had to go ahead was I considered the wall was a safety risk. I had to start yesterday.’ That’s what you said, didn’t you?-- I probably did, yes.” (my emphasis)

In context, the reference to having to start yesterday is to 19 January 2004, which is subsequent to the placing of the survey marks.

[32]T 2-102 ll 19-23.

The plaintiff alleges that having made these observations:[33]

“[He] expressed his disgust at the male Defendant acting in the manner he did by cutting into the Plaintiff’s land with earthmoving equipment without the Plaintiff’s knowledge and consent and requested of the male Defendant on several occasions to stop performing the work. The male Defendant refused to stop the excavator contractor from operating the earthmoving equipment and continued to excavate the remaining 4 metres of wall of boulders. In this conversation the male Defendant was offensive and used abusive language.”

[33]Amended Statement of Claim, para 7. The amendment is underlined.

Mr Rycen accepts that while the excavation work was in progress, the plaintiff approached him and insisted he cease encroaching on the land. However, he asserts that he immediately instructed the excavator operator not to encroach and no further encroachments were made.[34]
[34]Defence of the Defendants, paras 6(n) and (o).

Consistent with Mr Rycen’s evidence that he had phoned the plaintiff on the previous date about the removal of the rubber tree, he told the plaintiff he wanted to talk to him about removing this remaining tree.[35]
[35]These are the terms of the conversation as put to and accepted by Mr Rycen in cross‑examination at T 2-103 l 45 to T 2-104 l 3. He also accepted at T 2-104 ll 22-33 that the excavator had killed the other three trees. Therefore, this must be a reference to the rubber tree. The evidence of the plaintiff’s father at T 2-60 ll 1-3 also was that Mr Rycen said that he wanted to see the plaintiff “to remove the tree”.

The plaintiff’s evidence was that during the conversation which followed, Mr Rycen became “reasonably agitated and abusive”.[36] He described Mr Rycen as “quite angry”.[37] Mr Rycen accepted that he may have been aggressive in voice.[38] He accepted he swore and probably said “fucking” on a few occasions because he was upset. He did not know if the plaintiff swore at him, but said that the plaintiff’s father did not.[39] He thought that both he and the plaintiff acted badly.[40] His response to the question “you swore at him on many occasions?” was, “I was in my yard, mate. If somebody’s yelling at you what would you do?”.[41] He denied the suggestion that the plaintiff did not yell at him on any occasion.[42]
[36]T 1-50 ll 47-48. The plaintiff’s father at T 2‑61 ll 2-3 also described the conversation as being very agitated on Mr Rycen’s part and that Mr Rycen swore a lot. At T 2-63 ll 34-40 he said that he felt that this could become physical. He did not like Mr Rycen’s body language. As a result, he made up a story about breaking it up because he had an appointment elsewhere. He was not cross‑examined.
[37]T 1-50 l 56.
[38]T 2-105 l 22.
[39]T 2-102 ll 39-54.
[40]Ibid ll 8-9.
[41]T 2-105 ll 25-28.
[42]T 2-105 ll 29-31.

Mr Rycen accepted that he could have told the plaintiff he was “fucking doing you a favour”.[43] He also accepted that he said he had legal advice and council advice that he could do what he wanted, but he said he added that this was in relation to his side of the boundary.[44]
[43]T 2-105 ll 16-18.
[44]T 2-105 ll 47-50.

The plaintiff said the conversation included:[45]

“And I said to him, ‘Well, you’re entitled to do with the machinery whatever you want on your side of the land but leave my side of the land alone. You’re entitled to clean up the mess or do whatever you want on your side; I’ve got no say in that matter.’ I insisted on him to leave my side of the land alone, you know. And I said, ‘Look’ – and he became quite angry again and explosive and I tried to calm him down by saying, ‘Look, I’m not saying I’m not interested in building a Besser block brick wall or any type of retaining wall, all I’m saying is that we should sit back, write down on paper what we should – how we should proceed from here, what your proposal is, what my proposal is, come to an agreement, put it down on paper and we both sign it.’ And he started getting abusive again and he’s not signing anything.”

He added that Mr Rycen kept on saying he was “not fucking signing anything.”[46]

[45]T 1-51 ll 10-24.

[46]T 1-52 ll 6-7.

Mr Rycen accepted that the plaintiff told him to stop work and not to do anything else until there was a written agreement as to what would occur.[47] He also accepted that the plaintiff said, “You can do whatever you like on your side of the boundary just leave my side alone”.[48]
[47]T 2-104 ll 34-40.
[48]T 2-105 ll 45-47.

As a result the plaintiff said that while he supposed that “maybe violated is too strong a word”, he felt annoyed, angry and confused about where Mr Rycen’s attitude was coming from because he thought he was using a reasonable approach and was not being abusive towards him.[49] As a result he asserts in his claim:[50]

“The male Defendant’s behaviour was malicious and done out of spite toward the Plaintiff with the intention of humiliating the Plaintiff and injuring his proper feelings and dignity and pride and causing him to be held in ridicule and contempt before his father who was present.”

This allegation is denied by the defendants.[51]

[49]T 1-52 ll 25-31.

[50]Amended Statement of Claim, para 8.

[51]Defence of the Defendants, para 7.

When the plaintiff left his property with his father on that day, the state of the excavation is described by him as extending from approximately the water meters at the front to about the remaining four metres of rock wall. He described the excavation as extending 600 to 800 millimetres from the boundary towards his house on a rough estimate.[52] The plaintiff’s father described the embankment being freshly dug up, about a metre beyond the boundary on the slope.[53] As a fruit farmer of 40 years’ experience, he estimated the soil had been dug up for no longer than a day.[54] He also said that the excavation stopped about four metres short of the besser block wall at the back.[55] As indicated, he was not the subject of cross‑examination.
[52]T 1-52 l 56 to 1-53 l 5.
[53]T 2-61 ll 54-56.
[54]T 2-62 ll 18-24.
[55]T 2-63 ll 10-15.

The plaintiff’s evidence was that he spoke with Mr Rycen again on the same date, and had the following conversation:[56]

“At that time when I spoke to him I reiterated again, I said, ‘I sought legal advice and they’ve informed me that what you’re doing is wrong.’ Which he then exploded and said, ‘How dare you go behind my back. If you wanted to go see a solicitor you should have taken me along and we could have sorted things out there and then but you’ve gone behind my back so be blowed with you I’m going to do whatever I want and I’m going to put up a Koppers log wall and dump everything in behind it.’”

Mr Rycen did not deny that a further conversation of this nature occurred on this date. However, his evidence was that he would have said, “Why didn’t we both go and see him?”, and any response about doing what he liked would have been in the context of doing this on his side of the boundary.[57]

[56]T 2-3 ll 30-38.

[57]T 2-105 l 40 to T 2-106 l 18.

The plaintiff gave evidence that on his way to work at 5.30 to 6 am on 21 January 2004 he again attended at his property. At this time he saw the remaining four metres of the rock retaining wall was gone.[58] The plaintiff’s father gave unchallenged evidence that he attended the property the following afternoon, at which time the rest of the soil had been removed up to the besser block wall at the back.[59] As a result, the plaintiff asserts that the digging continued after he left on the previous afternoon.[60] He prepared a “Current Plan View”[61] to indicate the extent of the excavation which he estimated was done by Mr Rycen until that time. This shows that in his estimate there was further excavation into his property in conjunction with removing the remaining rocks. He also took photographs that morning to document this.[62] With the use of a tape measure which appears in the photographs, he estimated that the excavation continued into his property about two and a half to three feet from the dispute boundary.[63]
[58]T 1-56 ll 46-55. Although with reference to Exhibit 6, Photo 9, he estimated there was about half a meter to a metre of the wall remaining.
[59]T 2-63 ll 25-26.
[60]T 1-54 ll 27-28.
[61]Exhibit 6.
[62]T 2-63 ll 25-26.
[63]T 2-6 ll 34-38.

Mr Rycen did not deny that the remaining part of the rock wall was removed. He believed he did this himself either in the next few days or when he was building the coppers log wall.[64] However, he also conceded that, because he was very upset after the confrontation with the plaintiff on 20 January 2004, he could have removed the remaining rocks that afternoon.[65] He also appeared not to exclude that this was done by the excavator, as demonstrated by the following exchange in cross‑examination:[66]

“I’m putting to you that on the … afternoon of the 20^th of January 2004 the excavator came again and removed the last four to – four-odd metres – four to five metres of remaining embankment?-- All he did was clean it up if he did do it.”

Although he responded to me shortly afterwards that he did not recall the excavator doing this,[67] it appears he may have been referring to the excavator tidying up after he had dismantled the remaining part of the rock wall with a shovel.[68]

[64]T 2-99 l 48 to T 2-100 l 10; T 2-101 ll 10-12; T 2-106 l 42.

[65]T 2-101 ll 24-33.

[66]T 2-104 l 56 to T 2-105 l 2.

[67]T 2-106 ll 47-48.

[68]T 2-107 ll 1-5.

On 4 February 2004 the plaintiff, having not received any written proposals from Mr Rycen about what he would envisage happening on the dispute boundary, wrote to him proposing two options to find a satisfactory solution.[69] A response was sought within seven days. It was delivered on 6 February 2004.[70] Mr Rycen agreed that he received and signed for this letter but did not respond to it.[71]
[69]Exhibit 7.
[70]Exhibit 8.
[71]T 2-107 ll 22-30.

On 20 February 2004, on the plaintiff’s instructions, his solicitor, Mr Goodwin, wrote to Mr Rycen. After noting that there had been no response to the plaintiff’s letter, it was stated:[72]
[72]Exhibit 9.

“You are hereby notified that unless as [sic] satisfactory arrangement is entered into within seven (7) days application will be made to the court for an injunction restraining you from further work, together with an order for costs.
In addition an order will be requested that you restore the property to its previous condition.
You should know that the work you have undertaken to date has been entirely without our client’s approval. Indeed you have not so much as consulted him as to your intentions. The work you have commenced represents a nuisance and trespass and entitles our client to various legal remedies including damages by way of compensation.
In the event of extreme weather conditions occurring before satisfactory remedy our client notifies you that he has fears of substantial damage being caused to his house property which may be undermined by your excavation works.
Our client has no wish to allow this matter to become a cause of friction between you however he has also no intention of allowing you to continue without prior consultation and approval.
We urge you to respond to this letter immediately or at least to seek independent legal advice with a request to your lawyers to make contact with us urgently.” (my emphasis)

It was also stated that Option (A), which had been notified in the previous letter, was no longer available.[73] Mr Rycen confirmed he received this letter, but did not know when he did so.[74]

[73]Exhibit 9.

[74]T 2-107 ll 36-40.

It is unlikely to have been received when the plaintiff visited his property with his father on 21 February 2004. On this occasion, the plaintiff alleges that:[75]

“The male Defendant, having erected several copper log posts on the Defendant’s side of the common boundary, proceeded to dump loose soil behind the copper log fence thus committing further trespass upon the Plaintiff’s land. The Plaintiff approached the Defendant and asked him to stop dumping loose soil upon his land. Despite the Plaintiff’s request, the male Defendant continued to operate a small earth moving machine (a Dingo) and continued to deposit loose soil onto the Plaintiff’s land.”

[75]Amended Statement of Claim, para 9.

The plaintiff also alleges that:[76]

“Further, the male Defendant became very abusive towards the Plaintiff and the Plaintiff’s father (by calling the Plaintiff’s father an idiot). Despite being asked to desist from continuing to place loose soil upon the Plaintiff’s land, the male Defendant did not desist. The Plaintiff therefore called the Police whilst the male Defendant continued to place lose soil upon the Plaintiff’s land.”

[76]Ibid, para 10.

In relation to this, in paragraph 6 of the defence, the following facts are relied upon to show that the plaintiff has not established a cause of action in trespass or nuisance:

“q)On about 21 February 2004 the male defendant, having completed the construction of the coppers log retaining wall and having hired a ‘dingo’, proceeded to back fill the excavation behind the retaining wall.
r)The plaintiff approached the male defendant on 21 February 2004 and insisted that he immediately cease filling behind the retaining wall and the male defendant immediately ceased to do so.”

The defendants deny the allegations set out in paragraph [37].[77]
[77]Defence of the Defendants, para 7.

Paragraph 6(q) of the defence is a concession that Mr Rycen committed trespass. Mr Appleton’s concession in his submissions is wide enough to cover this.[78]
[78]Submissions on behalf of the defendants, dated 21 May 2009, p 2.

The plaintiff’s evidence was that Mr Rycen had erected the upright coppers logs on his property and had started putting horizontal logs behind them. As he put the horizontal logs up, he was backfilling behind them by dumping soil on his land. He and his father went to where Mr Rycen was and asked him to stop.[79] He thought they both asked Mr Rycen to stop two or three times, but about three loads were still dumped on his land.[80]
[79]T 2-9 ll 1-11.
[80]T 2-10 ll 15-25. At T 2-11 ll 8-9 the plaintiff estimated that there may have been a cubic metre of soil in these three loads.

Consistent with the defence, Mr Rycen accepted that he decided to dump about half a wheel barrowful of soil over the logs, in order to hold them there. He said that he “probably did about three of them” before the plaintiff and his father came outside and told him to stop.[81] Also consistent with the defence, his evidence-in-chief was that he stoped dumping soil there when he was told to do so.[82] However, he contradicted this in cross‑examination as follows:[83]

“In any event, some of the – one of the Stereff gentlemen told you to stop?-- That’s correct.
Now, after you were told to stop you continued to dump loads across, didn’t you?-- Mm-hmm.
You dumped another two or three loads across?-- Another two, yeah.”

[81]T 2-84 ll 10-15.

[82]T 2-85 ll 25-30.

[83]T 2-108 ll 49-56.

Photographs taken by the plaintiff on the following day demonstrate the extent of the excavation along the dispute boundary, the stage of construction of the coppers log fence and the backfill on the plaintiff’s property.[84] The plaintiff’s evidence was that it was not clean backfill, but was full of rubbish.[85] The photographs also show that the last little bit of the rock wall had been removed.[86]
[84]Exhibit 10.
[85]T 2-13 ll 25-26.
[86]Ibid ll 36-42.

The plaintiff’s evidence was that at one stage the Dingo was on his side of the boundary.[87] However, not only does Mr Rycen deny this,[88] but so does the plaintiff’s father.[89] The reasons that each gave for this was that it could not enter the plaintiff’s property because the coppers log fence was in the road. Therefore, I proceed on the basis that although, as the plaintiff’s father confirmed, the machine came right up to the boundary,[90] the wheels did not come onto the plaintiff’s land. On the other hand, as he also said, the bucket had to be at least half a metre over the boundary to dump the soil.[91]
[87]T 2-9 ll 34-37.
[88]T 2-108 ll 35-38.
[89]T 2-66 ll 40-41.
[90]Ibid ll 33-35.
[91]Ibid ll 20-26.

The plaintiff’s evidence was that during the conversation with Mr Rycen on this date, it was necessary for them to shout at each other over the noise of the Dingo.[92] His evidence was that things started getting a bit heated and Mr Rycen told his father to “fucking piss off”.[93] He said that as Mr Rycen said this, the Dingo swerved around so that he believed there was a possible danger to his father.[94] Mr Rycen’s evidence was that he said, “Fuck off, Iwan, it’s got nothing to do with you.” He accepted that he said to the plaintiff and his father that he was doing exactly what the plaintiff wanted in his letter, to which the plaintiff replied, “That’s not what I wanted, I want the work carried out by a professional.”[95]
[92]T 2-9 ll 11-13.
[93]Ibid ll 14-16. The evidence of the plaintiff’s father at T 2-66 ll 13-15 was to the same effect.
[94]Ibid ll 19-21. The plaintiff’s father described the whole situation as very agitated at T 2-65 ll 56‑57. He said at T 2-64 l 22 that he was told to “piss off”.
[95]T 2-109 ll 1-7.

Mr Rycen’s evidence was that he was backfilling on the plaintiff’s land to stabilise it. He said the ultimate goal was to make it safe and easy to maintain by allowing the grass to grow back. His intention was to use a wacker packer to pack it down if it didn’t settle.[96]
[96]T 2-84 l 30 to T 2-85 l 15.

The plaintiff said that he was going to get the police.[97] His evidence was that other than the swearing identified in paragraph [45] there was no other swearing and abuse by Mr Rycen before this. However, he said that Mr Rycen was “quite loud, he was quite angry and he was getting quite agitated and irritated about it all.”[98] The plaintiff’s father said:[99]

“He never stopped the machine and – and – not until the police arrived, so – so to have a conversation you had to more or less shout see and vice versa. He – he – he kept on shouting and – and, as I say, he was – his whole body language – and his whole action, I found it very – very, very aggressive.”

Mr Rycen accepted that there was “quite a heated discussion”.[100]

[97]T 2-9 l 25.

[98]T 2-10 ll 33-37.

[99]T 2-66 ll 13-18.

[100]T 2-109 ll 46-47.

The plaintiff gave evidence that when he said he was going to get the police, Mr Rycen said, “He doesn’t care whether we get [them], he’s got the right to do whatever he wants. He’s got permission to do this. So he continued working as we were leaving to go and get the police”.[101] Mr Rycen’s evidence was that he said, “I’ve got council approval I can build a wall anything up to 1 metre high without council approval”.[102]
[101]T 2-9 ll 25-30. The plaintiff’s father said at T 2-64 ll 29-30 that Mr Rycen said that he had legal advice and council advice to do whatever he wanted.
[102]T 2-109 ll 42-44.

After leaving the property, the plaintiff contacted the police, who had arrived at the property by the time he returned with his father. He could not say whether any more soil had been dropped behind the wall during the period he had been away.[103] The police stayed at the property for a period. During this time they informed the plaintiff that this was a civil matter, and they were there to try to keep the peace.[104]
[103]T 2-11 ll 26-34.
[104]T 2-12 ll 8-11.

The plaintiff and his father gave evidence that Mr Rycen called the father an “idiot”. According to the plaintiff’s father, this was when the police were there.[105] Mr Rycen accepted that he had said this by pointing at both the plaintiff and his father when they were together.[106] He accepted that a police officer may have told him to mind his language at this point.[107]
[105]T 2-65 ll 5-10.
[106]T 2-109 ll 25-30; T 2-110 ll 12-16; T 2-111 ll 1-5.
[107]T 2-111 ll 13-15.

The plaintiff’s father said he was very much offended by being called an idiot in public in front of the police officers.[108] The plaintiff said he was “pretty upset” about the way his father was treated, and was “quite angry, frustrated”.[109]
[108]T 2-65 ll 12-17.
[109]T 2-12 ll 12-17.

Mr Rycen said that he was angry but not aggressive.[110] He denied threatening or abusing them, and did not think it was abuse to call someone an idiot.[111] He denies the plaintiff’s assertion that, as with the 20 January 2004 incident, his behaviour was malicious and done out of spite towards the plaintiff with the intention of humiliating the plaintiff and injuring his proper feelings and dignity, and causing him to be held in ridicule and contempt before his father.[112]
[110]T 2-111 ll 24-26.
[111]T 2-112 ll 1-15.
[112]See Amended Statement of Claim, para 11, and Defence of Defendants, para 7.

The plaintiff took further photographs of the properties on 25 February 2004[113] and 20 July 2004.[114]
[113]Exhibit 11.
[114]Exhibit 12.

The photographs of 25 February 2004 show the excavation at the front of the plaintiff’s property,[115] the copper’s log fence, one of the oleanders which had been chopped out,[116] and the backfill on his property.[117]
[115]Exhibit 11(1).
[116]Exhibit 11(4). The plaintiff’s evidence at T 2-15 l 11 is that it never regrew. This is also depicted in Exhibit 12(9).
[117]Exhibit 11(5).

The photographs of 20 July 2004 particularly show cladding which had been nailed to the uprights above the coppers logs. The plaintiff suggested that someone would have had to come into his property to nail the cladding up, as well as to nail the horizontal logs to the uprights. However, he conceded it was possible they could have been nailed from the other side.[118] Mr Rycen denies that he entered the plaintiff’s property to do this. He says that he screwed them over the top.[119]
[118]T 2-17 ll 19-35.
[119]T 2-111 ll 43-49.

The 20 July 2004 photos also show safety bunting put up by the plaintiff on his side of the dispute boundary. He said that he did this to make it as safe as possible.[120] He was asked by me how the area of his property abutting the coppers log fence varied from the way it was before the work was done. He responded:[121]

“The area was excavated out so it became unstable, there was no support. There were – there was probably like stress fractures starting to appear. If you can imagine, your Honour, a glacier? The front of the glacier you’ve got kind of a cliff face, and as the glacier grows you get stress cracks appearing back from the face and eventually they start to fall forward and it falls over and that’s the type of soil that was having the soil there. The oleander bush covered that area, along with the other bushes. I had engaged – tried to engage contractors at one stage to clean it up. They refused ‘cause it was too dangerous.”

[120]T 2-49 ll 11-13.

[121]T 2-19 ll 5-15.

He said that slowly but surely everything would fall in because support had been removed from the soil.[122] His evidence was that subsidence happens gradually,[123] and is not prevented by just backfilling and compacting soil.[124] He said the coppers log retaining wall would never have stood up to anything.[125] His position is emphasised by the following exchange during cross‑examination:[126]

“We’ll have to disagree about that, but I put it to you that the retaining wall, such as it was, may not have been – may not have been permanent – permanently satisfactory, but it was at least temporary?-- It was collapsing under its own weight. You can see that the posts were moving around on – on its own weight, never mind something behind it. So, I’d have to disagree with your disagreement, if that makes sense?”

[122]T 2-48 ll 56-58.

[123]T 2-50 ll 53-54.

[124]Ibid ll 28-32.

[125]Ibid ll 12-15.

[126]Ibid ll 34-40. The form of the question by Mr Appleton impliedly involves an acceptance by him on behalf of the defendants that the coppers log retaining wall was not a permanently satisfactory solution.

Consistent with this, the plaintiff alleges in his statement of claim that:

“13.By reason of the excavation of the trench preformed [sic] by the male Defendant, the natural support of the Plaintiff’s land has been withdrawn causing part of the Plaintiff’s land to subside into the excavation.
14.As a result of such subsidence, the fence constructed on the Plaintiff’s land and the Plaintiff’s house is at risk of collapse.”

In relation to paragraph 13, the defendants admit that the natural support of the plaintiff’s land was withdrawn and that some of that land had subsided into the excavation, but they say this is minimal and they have always been ready, willing and able to fill in the excavation to a good workmanlike standard.[127] They allege that the plaintiff has prevented them from doing this.[128]
[127]Defence of the Defendants, para 9.
[128]Ibid, para 13.

In relation to paragraph 14, the defendants deny the plaintiff’s fence and house are at risk of collapse from the excavation – at least not in this century.[129]
[129]Ibid, para 10.

As a result of his concerns, the plaintiff obtained quotes from builders for the erection of a retaining wall. The quote relied on in the Statement of Claim as the cost to rectify the damage allegedly caused by Mr Rycen, is from Bob Ryan’s Home Improvements Pty Ltd dated 14 February 2005 for $16,632. The plaintiff alleges that he has suffered damages in this amount.[130] I note that this quote was for the supply and construction of a two-metre high retaining wall.[131]
[130]Amended Statement of Claim, para 15(a).
[131]The quote is Exhibit 2. Consistent with Mr Appleton’s “Response to the plaintiff’s submission” of 5 June 2009, he consented to its admission as a quote and not as evidence of the measure of damages: see T 1-30 ll 48-49.

A quote dated 16 January 2005 was also obtained by the plaintiff from Keyworth Builders to build an approximately two metre-high besser block retaining wall.[132]
[132]Exhibit 13.

The plaintiff provided copies of these quotes to Mr Rycen without an agreement being reached about how to rectify the problem concerning the dispute boundary.[133]
[133]T 2-20 ll 17-21.

Mr Rundle, a surveyor of many years’ experience, was engaged by the plaintiff to survey his property. As a result, he prepared a survey plan dated 23 December 2005.[134] He estimated, on the basis of photograph 1 of Exhibit 12, that the excavation into the plaintiff’s property was of the order of a metre.[135]
[134]T 2-55.
[135]T 2-57 ll 37-48.

On 8 March 2006, the plaintiff’s solicitors issued a Notice to Fence to Mr and Mrs Rycen under the Dividing Fences Act 1953, requiring them to contribute to the construction of a fence for the common boundary between their properties. It was proposed that this fence be constructed in accordance with a quotation from Keyworth Builders dated 9 January 2006 for $19,980. The kind of fence proposed was a 1500 mm high batten top paling fence, with two pine rails on top of a 2 metre high masonry brick wall.[136]
[136]Exhibit 14.

On 29 November 2006 the Gladstone Magistrates Court made an order that a dividing fence was to be erected on the common boundary. It was ordered that it was to be constructed of besser block to a height level with the fall of the embankment, with a steel mesh fence situated on top, and that Mr and Mrs Rycen pay half the cost.[137]
[137]Exhibit 15.

This fence was erected and the coppers log fence dismantled.[138] The cost of constructing this wall was $24,814.[139] The plaintiff said that Mr and Mrs Rycen disputed these costs on the basis that the costs of the wall built on his side were included. As a result, another action was required to get the money, after which $9,500 was paid.[140]
[138]Exhibit 16 is a photo of the fence. This has a 1.4 metre besser block retaining wall, in accordance with the court order that it be constructed to a height level with the fall of the embankment. The photo also shows another wall directly behind it, which is roughly 0.6 metres high. The plaintiff had this built on his own land to achieve the combined height of 2 metres which he desired. He paid for this additional wall: see T 2-22 ll 1-21; see also Exhibit 18, which is the relevant tax invoice; and Exhibits 22 and 23, which are the defendants’ photos of this wall.
[139]Exhibits 17 and 19. This is the sum of $23,814 construction costs and the associated $1,000 survey.
[140]T 2-24 ll 22-35.

Mr Rycen confirmed they believed that the claim for half of $24,814 was for a two metre wall. As a result, the plaintiff took the matter back to court. The plaintiff accepted their offer of a payment of $9,500.

The plaintiff’ said that he found the dispute extremely frustrating. He was concerned where he stood for insurance purposes with his house as a result of subsidence, for his tenants and the public if they hurt themselves. He could see no clear cut solution. As a result, he had sleepless nights, developed weight gains and losses, and developed teeth grinding some time after 2004/2005 for which he required treatment, which cost him $3,000 - $4,000.[141]
[141]T 2-25 l 5 to t 2-26 l 3.

In these circumstances, the plaintiff alleges:[142]

“By reason of the matters aforesaid, the Plaintiff has been subject to humiliation and suffered mental anguish and stress and has suffered loss and damage.”

[142]Amended Statement of Claim, para 12.

The defendants do not admit this allegation and say that the facts and circumstances are not such as to cause a reasonable person to suffer humiliation and mental anguish or stress.[143]
[143]Defence of the Defendants, para 8.

At the time of giving evidence Mr Rycen was a 57-year-old railway driver, having worked 38 years for the railways. His gross yearly income was $80,000.[144] This is a base salary of $60,000 which is built up with overtime.[145] He also had a trade qualification as a boilermaker when he was young.[146]
[144]T 2-93 ll 1-13.
[145]T 2-115 ll 29-30; he said that he had heard that some of his colleagues earned in excess of $100,000 with overtime, but he did not work as much overtime as them: see T 2-115 ll 37-45.
[146]T 2-93 l 15.

At one stage he and his wife had two houses which they had purchased, subject to a mortgage. They had rented the house at Beech Avenue to tenants, while they lived in the other house. They sold the house they had been living in. They did not pay the proceeds of sale towards the Beech Avenue mortgage, but used them to help out their children.[147] They owed $220,000 on the Beech Avenue mortgage.[148]
[147]T 2-155 l 47 to T 2-116 l 14.
[148]T 2-90 ll 31-34.

They own a car and a boat.[149] The boat is a little tinnie worth $6,000.[150] They have no savings other than $150,000 or $160,000 superannuation.[151]
[149]T 2-94 ll 36-38.
[150]T 2-117 ll 14-19.
[151]T 2-94 ll 40-45.

Mr Rycen thought that his compulsory retirement age was 65 years. He had not worked since a work related accident in October 2008, for which he had a shoulder reconstruction operation on 30 April 2009.[152] It has been suggested he would be unable to work for six months, during which time he would be on workers’ compensation benefits. He did not know whether he would be bringing a personal injury claim in respect of this injury, although he had not ruled this out.[153] He did not have a bank of sick leave because he had also been off work because of prostate cancer, with which he had been diagnosed four years previously. He described himself as, “still hanging in there, literally”.[154]
[152]T 2-94 l 48 to T 2-95 l 12.
[153]T 2-116 ll 22-42.
[154]T 2-95 ll 14-18; T 2-116 ll 44-48.

He said that Mrs Rycen was employed part time, earning about $300 for 20 hours’ work weekly.[155]
[155]T 2-116 l 50 to T 2-117 l 11.

Mrs Rycen gave evidence in relation to the issue of whether Mr Rycen acted as her agent. This is denied in the defence on the following basis:[156]

“The female defendant knew and approved of the male defendant’s plan to do certain construction work on the boundary between the plaintiff’s land and the defendant’s land (the dispute boundary) but she did not appoint him as her agent for the purpose of dealing with the Plaintiff or any other third party, or for the purpose of entering onto the plaintiff’s land.”

[156]Defence of the Defendants, para 2.

Mrs Rycen said that she and her husband were the joint owners of the 4 Beech Avenue property. She said they had the western wall done and they were going to do something about the dispute boundary side because of the boulders. Her evidence was that her husband was going to do a coppers log wall there. She said she “agreed with him to do whatever he wanted to do” because she thought it was their land.[157] She also gave evidence that:[158]
[157]T 2-71 ll 1-40.
[158]Ibid, ll 41-52.

·     she did not have any further involvement in it, because “that was men’s business”
·     she never directed him in the manner of the undertaking
·     she never instructed him to encroach or trespass on the plaintiff’s land.

She said that she was not aware he had trespassed on the plaintiff’s land “until too late”.[159]

[159]Ibid, ll 54-55.

Under cross‑examination she said that she “basically just handed the project over to” her husband.[160] She said that if he wanted to engage a contractor, “he just done it. He doesn’t have to consult me”.[161] Her evidence was that she did not know who the excavating contractor was. She did not pay this contractor. This was left to her husband, who paid him in cash without any written contracts.[162] She knew that Mr McNee had surveyed their property and given them survey documents. These documents were in, “like my filing cabinet”.[163] She saw no plan drawn up by her husband of what he was going to construct. He just told her that it was going to be a coppers log wall.[164]
[160]T 2-72 ll 14-16.
[161]Ibid, ll 22-24.
[162]T 2-73 ll 20-25.
[163]Ibid, ll 27-35.
[164]Ibid, ll 43-45.

Quantum of damages claimed

As a result of Mr Rycen’s actions, it is alleged the defendants and/or Mr Rycen have trespassed upon the plaintiff’s land on no less than two occasions and caused nuisance to his land by the withdrawal of support; and that as a result, the plaintiff has suffered damages as follows:[165]
[165]Amended Statement of Claim, para 15.

(a)

Cost to rectify damage caused by male Defendant (full particulars of which are contained in the quote of Bob Ryan’s Home Improvements Pty Ltd dated 14 February 2005

$16,632.00

(b)

Damages for trespass to land and removal of soil

$5,000.00

(c)

Damages for destruction of three bushes

$1,500.00

(d)

Diminution in value of land

$10,000.00

(d) [sic]

Aggravated and exemplary damages

$50,000.00

TOTAL

$83,132.00

The plaintiff also claims interest at 10% per annum to the date of judgment.[166] In the plaintiff’s written “Submissions in Reply”, in relation to paragraphs 15(a) and 15(d), the plaintiff says he is claiming $16,632; alternatively, the claim is for the difference between the sum of $24,814 he paid Keyworth builders to construct the retaining wall less the sum of $9,500 received from the defendants (i.e. $15,314); and in the further alternative, the sum of $10,000 in diminution of the land value.

[166]Ibid, para 16.

Liability in trespass

The defendants allege that by issuing a clear demand before proceedings to the defendants to provide support, the plaintiff could have avoided these proceedings.[167]
[167]Defence of the Defendants, para 14(a).

It is submitted on behalf of the defendant that while conceding Mr Rycen committed trespass, his liability in trespass is only to the person in lawful possession of the land trespassed on; and only a person in lawful possession can sue for trespass to land and nuisance. Reliance is placed on the decision of Hodges J in Rodrigues v Ufton,[168] where upon a review of the authorities, it was said:[169]

“I think that, with the exception of one case, they show that an action in trespass can be maintained only by a person in possession, and I think that possibly a mistake may have arisen in not distinguishing between the statement that an action in trespass can only be maintained by a person who has possession, and that an action may be maintained by a reversioner for an injury to the reversion done by a trespasser, which are two totally different things. It has not been doubted for nearly a century that a reversioner can sue for an injury to the reversion done by a trespasser.” (my emphasis)

[168](1894) VLR 539 at 543-4.

[169]Plaintiff’s Submissions in Reply, dated 2 June 2009, para 4.8. The reference to paragraph 15(c) is in reality a reference to paragraph 15(d). In para 4.6, it is accepted that ordinarily a plaintiff is not entitled to both diminution in value and the reasonable cost of reinstatement. Therefore it is said that paragraph 15(d) should properly be viewed as an alternative head of damage to the reasonable cost of reinstatement and not an additional sum.

It is contended that the plaintiff did not lead evidence of his right to possession at the material times. Reference is made to his evidence that he has never resided in the property, but had rented it to tenants and had achieved an occupancy rate of about 95%. Accordingly, it is submitted that in failing to give evidence of his lawful possession, the plaintiff has failed to make out his case in trespass and nuisance.[170]
[170]Submissions on behalf of the defendants, 21 May 2009 at p 7.

However, it is conceded that the plaintiff has established a cause of action for damage to the reversion.[171] Reference is again made to Rodrigues v Ufton, where, after observing that, “I entertain no doubt that a reversioner cannot bring an action in trespass. He can bring an action and can recover damages, if a trespass will injure his reversion,”[172] Hodges J said:[173]

“I have discussed this subject at some length, but I do not know that it makes any material difference in this case. Forms of action are gone, but while forms of action are gone, and trespass as a form of action is gone, parties may so state their case in their pleadings to show the damage claimed is damage for a trespass, but the whole dispute between the parties was unmistakeable, and if it be necessary to alter the pleadings in any way I think I ought to allow that amendment. I propose to dispose of this case as if any doubt on this subject was removed, and as the plaintiff was in possession of the land by her tenants, and as a fence was permanently put up which would interfere with her possession, I think I ought to give some damages of the obstruction.”

[171]Ibid.

[172](1894) VLR 539 at 546.

[173]Ibid.

Therefore, it is conceded by the defendants that it is the pleaded facts and established evidence which count, and not some outdated forms of action. For this reason, it is accepted by them that I could take a similar approach to this case with the aid of r 367 of the Uniform Civil Procedure Rules 1999 (UCPR).[174]
[174]Submissions on behalf of the defendants, 21 May 2009 at p 7.

Although the defendants concede the relevant damage is to the reversion, it is argued there is strong evidence they did not intend the damage to be permanent and therefore, following the reasoning in Cooper v Crabtree,[175] there is no damage to the reversion.[176]
[175](1882) 20 Ch D 589.
[176]Submissions on behalf of the defendants, 21 May 2009 at p 7.

The defendants’ principal submission is based on statements of principle such as those of the High Court of Australia in Plenty v Dillon,[177] where police officers who entered onto the appellant’s farm in order to serve a summons on his daughter were sued by the appellant for trespass to land. Mason CJ, Brennan and Toohey JJ posed the issue for determination in the following terms:[178]
[177](1991) 171 CLR 635.
[178]Ibid at 638-9.

“Whether a police officer who is charged with the duty of serving a summons is authorised, without the consent of the person in possession or entitled to possession of land and without any implied leave or licence, to go upon the land in order to serve the summons” (my emphasis)

This question was answered in the negative.

Gaudron and McHugh JJ said:[179]
[179]Ibid at 647; see also Coco v The Queen (1994) 179 CLR 427 at 435 per Mason CJ, Brennan, Gaudron and McHugh JJ, where it is said:
“every unauthorised entry upon private land is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right.”

“The policy of the law is to protect the possession of property and the privacy and security of its occupier … A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises.” (my emphasis)

Their Honours also said:[180]

“But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land.” (my emphasis)

[180]Ibid at 654-5.

In TCN Channel Nine Pty Ltd v Anning[181] Spigelman CJ (with whom Mason P and Grove J agreed) cited with approval the passage of the joint judgment of Gaudron J and McHugh J in Plenty v Dillon at 647, which is quoted in paragraph [87].[182] His Honour also summarised the law as follows:[183]

“The tort of trespass is committed whenever there is an interference with possession of land without lawful authority or, relevantly, the licence or consent of the person in possession.” (my emphasis)

[181](2002) 54 NSWLR 333.

[182]Ibid at para 340 [26].

[183]Ibid at para 339 [23].

In Georgeski v Owners Corporation Sp 49833,[184] Barrett J said:[185]

“This result emerged because trespass to land entails interference with possession and is maintainable only by someone who has a right of possession. As between landlord and tenant, it is the tenant who may sue in trespass.” (my emphasis)

[184][2004] NSWSC 1096.

[185]Ibid at para [95].

This principle is stated in The Law of Torts as follows:[186]

“The action of trespass vindicates only violations of actual possession, and is not concerned with protecting the interests of persons out of possession at the time of the intrusion. Thus, a purchaser cannot sue for a trespass occurring before title passes, nor a landlord during the subsistence of a case.”

[186]Fleming J, The Law of Torts 9^th ed., Law Book Co at 49.

The chapter on “Trespass to Land” in Court Forms, Precedents & Pleadings Queensland states:[187]
[187]Court Forms, Precedents & Pleadings Queensland Vol 3, Butterworths at [69,001].

“Trespass to land is a tort and exists as an actionable wrong, as Derrington J put it, ‘for the protection of possession of one entitled to it against one who is not so entitled, for it consists of an unauthorised intrusion on land in the exclusive possession of another’.” (my emphasis)

The reference to Derrington J is to his decision in Proprietors of the Centre BUP No 343 v Bourne [1984] 1 Qd R 613 at 620. The precedent for a Statement of Claim in action for damages for trespass, including a claim for aggravated and exemplary damages, includes:[188]

“1.At all times material to this action the plaintiff was the registered proprietor in fee simple of the land comprised in certificate of title No [number]. The said land is a [grazing] property known as [name of property] situated near [town] in the state of Queensland upon which the plaintiff resides and there carries on the business of [grazier and tourist operator].” (my emphasis)

[188]Ibid, 690.20 at [70,137].

In the present case, the plaintiff pleads he was at all material times the owner of a residential property situated at 6 Beech Avenue. He does not go further to plead that it was a property upon which he resided, at those times in accordance with the precedent, or that he was otherwise entitled to possession of the property at those times.

In responding to the defendants’ contention, the plaintiff refers to r 157(a) of the UCPR which requires a party to include in a pleading particulars necessary to “define the issue for, and prevent surprise at the trial.” In addition, r 157(c) requires the pleading of particulars to support a matter specifically pleaded under r 150. Rule 150(4) requires that in a defence a party must specifically plead a mater that:

(a) the party alleges makes a claim … of the opposite party not maintainable; or

…

(c) if not specifically pleaded may take the opposite party by surprise; or

(d) raises a question of fact not arising out of a previous pleading.”

I agree that the defendants have not complied with these requirements. This follows from the fact that the defence does not expressly rely on the plaintiff not being in possession of the 6 Beech Avenue property on the basis he had let the property to tenants at the particular time. This is despite the fact that in paragraph 6 the defendants particularise 18 facts on which they rely to show that the plaintiff has not established a cause of action. Accordingly, as the plaintiff submits, the failure of the defendants to make the issue of possession relevant to the cause of action has caused the evidence to be less certain than it otherwise would have been. I note, however, that when this issue was raised by Mr Appleton in oral submissions immediately following the conclusion of the evidence, no application was made by Mr Crow on behalf of the plaintiff to reopen his case to call evidence about this. Further, no such application has been made subsequently.

Despite this failure by the defendants, as trespass to land exists as an actionable wrong for the protection of possession of one entitled to it against one who is not so entitled, the plaintiff should have pleaded his position in relation to this in accordance with the precedent and to have been in a position to prove his possession if required. As stated by White J in Thiess Pty Ltd v FFE Minerals Australia Pty Ltd:[189]
[189][2007] QSC 209 at [36].

“but it must be kept firmly in mind that what the UCPR require, reflective as they are of long held approaches to pleadings, or at least since the Judicature Act 1876, is that each fact, the proof of which is essential to success at a trial, must be pleaded.”

The plaintiff has not done so in the present case. And as her Honour also observed:[190]

“More generally, the purpose of pleadings is to inform the opposite party of the case it has to meet and to permit, in a responsive pleading, the issues to be narrowed. Furthermore, the defendant cannot be expected to intuit what the plaintiff intends to convey in its pleadings by its own understanding of the facts and circumstances giving rise to he litigation. That would be a certain path to disaster.”

[190]Ibid at [38].

Despite the plaintiff’s failure to plead in relation to the question of possession, and the concession that evidence about this is less certain than it otherwise would have been, it is submitted on behalf of the plaintiff that the only reasonable finding of fact is that the plaintiff was in fact the possessor and the cause of action is trespass.[191]
[191]Plaintiff’s Submissions in Reply, 2 June 2009 at 2.4.

In support of this submission, it is said the plaintiff’s evidence was that on 21 February 2004, as he and his father were painting the house, there was no tenant in the house. While it is accepted the plaintiff did not provide evidence one way or the other as to whether or not there was a tenant in the house on or about 20 January 2004, it is submitted this does not equate with the plaintiff failing to provide that he was the possessor. It is submitted that in circumstances in which the plaintiff is the admitted owner of the house, in the absence of any other evidence or competing inference, the court is entitled to infer he was the possessor of the property at the relevant time. It is further submitted that if the defendants wished to persuade the court that such an inference should not be drawn, they should and could easily have brought proof of the same.[192]
[192]Ibid at 2.3.

The plaintiff refers to the defendants’ evidence that they were living next door to 6 Beech Avenue from late 2003. On this basis, it is put that “surely [they] would have known whether the house was tenanted or not”. It is submitted that as they have stayed mute on the issue, the only reasonable inference which can be drawn, according to the rule in Jones v Dunkel,[193] is that the property was not in fact tenanted at that time.[194]
[193](1959) 101 CLR 298.
[194]Ibid at 2.4.

Reference is also made to the failure of Mr Appleton to raise the issue with the plaintiff. It is suggested this could easily have clarified the issue. It is submitted that as possession was not an issue on the pleadings, and the plaintiff had been admitted to be the owner of the property with the natural inference he was also in rightful possession, there was no need in the plaintiff’s case to provide any further evidence. Accordingly, it is submitted on the admission of paragraph 1 of the Statement of Claim, namely ownership of the plaintiff’s land and the usual inference the owner is the possessor of the land, that in the absence of the defendants raising the issue on the pleadings, or failing to comment upon the issue in the defendants’ own evidential case or challenge it in the plaintiff’s evidential case, the only reasonable finding of fact is that the plaintiff was the possessor and the cause of action is trespass.[195]
[195]Ibid.

I do not agree with these submissions. As set out in paragraph [3], there was undisputed evidence that following the purchase of the 6 Beech Avenue property in 1999, the plaintiff had never resided there but had kept the house for rental purposes. His evidence was that it had been regularly occupied by tenants until the events which gave rise to these proceedings. He estimated that before this, the occupancy rate was about 95%.

Mr Crow conceded in his oral submission on behalf of the plaintiff that the evidence as to whether the house was tenanted on 20 January 2004 is vague.[196] Despite his criticism that this is because no‑one raised this on the pleadings, the onus is upon the plaintiff to prove that on the balance of probabilities the property was not occupied by a tenant at the time, and therefore he was in possession of it. Having regard to the state of the evidence outlined above, I am not satisfied this onus has been discharged by the plaintiff.
[196]T 1-127 ll 43-48.

However, Mr Crow submitted there was no issue with possession on 21 February 2004 because the evidence was that at this time the property was vacant and they were repainting it.[197]
[197]Ibid, ll 35-41.

The only real evidence about the status of the tenancy when the plaintiff and his father attended to paint the property is the statement by the plaintiff’s father that:[198]

“Peter’s tenants left and we were painting the house.”

[198]T 2-64 ll 8-9.

However, as Mr Appleton orally submitted, the meaning of this is a matter of conjecture, because it is not known if this was a reference to their having left for the day, having gone on holidays, or having terminated the tenancy.[199] As stated in The Law of Torts in Australia:[200]

“actual exclusive possession of land is not lost simply because, for example, the person is on holiday or even if the person ceases to be in actual physical occupation of the land for a longer period because, for example, of a decision to let the land lie fallow for a few years.” (my emphasis)

Having regard to the state of conjecture about the meaning of the plaintiff’s father’s reference to the tenants having left, I am not satisfied on the evidence, that the plaintiff has discharged the onus that the tenants were in possession of the property on that date. The departure of the tenants on holiday, for example, would provide the plaintiff with an opportunity to paint the house.

[199]T 2-120 ll 29-37.

[200]Trindade, F., Cane, P. and Lunney, M. The Law of Torts in Australia, 4^th ed., Oxford at 134.

I also do not consider that the only reasonable inference that can be drawn, according to the rule in Jones v Dunkel from the defendants’ staying mute on that issue, is that the property was not in fact tenanted at the time. The rule as conveniently expressed in the head note to that decision is:[201]

“that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied upon as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.”

[201](1959) 191 CLR 298 at 299.

Here it is submitted that this rule applies in circumstances where the defendants were called as witnesses, but remained silent on the issue because they were never questioned about it. However, in circumstances where a tenant’s exclusive possession of land is not lost simply because of absences, such as being on holiday or otherwise away from the premises, I do not consider that the defendants as next door neighbours were “presumably able to put the true complexion on the facts relied upon as the ground for the inference” contended for by the plaintiff. They will not necessarily know whether or not the next door property remains tenanted from time to time, simply due to an absence of the tenants from the property during those times.

The plaintiff also cites other passages from The Law of Torts in Australia[202] in support of the proposition that the court can ascribe possession of the 6 Beech Avenue property to him, as the actual owner of the land.
[202]Trindade, F., Cane, P. and Lunney, M. The Law of Torts in Australia, 4^th ed., Oxford at 134.

Reference is first made to the proposition from The Law of Torts in Australia that:[203]

“In the absence of evidence to the contrary, the law will, without reluctance, ascribe possession either to the owner of the land with the paper title or to the persons who can establish a title through the paper owner.”

On this basis, it is submitted that the court should without reluctance ascribe possession to the plaintiff as owner of the land because of the absence of evidence to the contrary.

[203]Ibid.

Reference is also made to the proposition from that publication that:[204]

“If there is a dispute as to which of the two persons is actually in possession of certain premises or land, the law considers that one to be in possession who has the superior right to the land. This is described as the legal title. As Owen CJ said in the Bakers Creek and Consolidated Gold Mining Co v Hack, “The law considers that one to be in possession who has the legal title.’”

[204]Ibid.

However, I do not consider the first proposition applies in the present case to ascribe possession to the plaintiff, because I consider the evidence I have referred to is “evidence to the contrary”. Further, I do not consider the second proposition is applicable because this case does not involve a dispute as to which of two persons is actually in possession of the property, but rather involves whether the plaintiff has proved that at the relevant time he was in possession of property as opposed to being landlord to an unspecified tenant.

In these circumstances, I consider the plaintiff was entitled to reinstate the physically damaged land to the same state it had been before the trespass, without relying upon the defendants to do so or for the conclusion of court proceedings, which in fact took three years and nine months to progress from the institution of proceedings until trial. He was then entitled to claim the reasonable and probable cost of the reinstatement as the natural and probable consequence of this trespass.

I appreciate that the defendants say that they have always been ready, willing and able to fill in the excavation to a good and workmanlike standard, and the plaintiff has prevented them from doing this. However, I agree with the plaintiff’s argument that there is not a sufficient evidential basis that Mr Rycen was trying to reinstate the plaintiff’s land on 21 February 2004 by using the Dingo to deposit soil on the land behind the coppers log fence.[293] In accordance with the adverse view that I have formed as to Mr Rycen’s credibility and reliability, I do not accept this was his motive, as opposed to dumping the soil and other material there for his own convenience. I accept the plaintiff’s evidence that on 20 January 2004 Mr Rycen told him that he was going to put up a coppers log wall and dump everything in behind it.[294] In any event, as the plaintiff says, the only way in which the defendants could reinstate the plaintiff’s land in this manner was by committing the further trespass which they were not entitled to do.[295] As Martin J observed in Traian v Ware:[296]

“The law does not favour the remedy of abatement in preference to legal action (Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd, [1927] AC 226, at pp 244-5), and requires strong reason to justify it when it involves entering upon the land of another”.

[293]T 2-131 ll 38-50.

[294]T 2-3 ll 35-38.

[295]T 2-132 ll 22-27.

[296][1957] VR 200.

Further, the plaintiff was entitled to insist that any restatement be professionally undertaken. This has always been his position concerning all aspects of the boundary dispute. At best, as asserted by the plaintiff, on the evidence before the court, Mr Rycen is a “home handyman”.[297] The plaintiff’s view is that gradual subsidence is not prevented by just backfilling and compacting soil.[298] As Mr Crow put it, there is no engineering evidence that this would have fixed the problem.[299] Mr Rycen’s evidence was that he constructed the coppers log retaining wall to keep the soil there.[300] I also accept the plaintiff’s evidence that this retaining wall was not a permanently satisfactory solution because it was collapsing under its own weight. Mr Appleton’s cross‑examination of the plaintiff about this impliedly accepts that it may have been no more than a temporary solution.[301]
[297]T 2-131 l 48.
[298]T 2-50 ll 28-32.
[299]T 2-134 ll 5-10.
[300]T 2-73 ll 42-44.
[301]T 2-50 ll 34-40.

In these circumstances I agree with the plaintiff that the erection of a retaining wall on the dispute boundary was the only practical way of reinstating the plaintiff’s land to the position before the trespass had been committed. I find that this was achieved by the erection of the dividing fence which was constructed to a height level with the fall of the embankment in accordance with the order to fence by the Magistrates Court.

This fence was constructed for $24,814, of which $9,500 has been reimbursed by the defendants. The submission on behalf of the defendants proceeds on the basis that Mr Crow submitted the plaintiff is entitled to the difference between one half of the cost of the construction of the dividing fence and the amount the plaintiff actually recovered from the defendants.[302] A careful reading of the transcript of the hearing confirms, consistent with the plaintiff’s written submission in reply, that alternatively to assessing damages of $16,632 on the basis of the Bob Ryan’s Home Improvements Pty Ltd quote, the proper measure is the sum of $15,314, which is the entire building costs of the fence less the amount already paid by the defendants.[303]
[302]Submissions on behalf of the defendants, 21 May 2009 at 5.
[303]Plaintiff’s Submissions in Reply, 2 June 2009, at 4.11.

I find that the measure of damages as a natural and probable consequence of the trespass is the actual building costs of this wall which reinstates the plaintiff’s land by following the natural contour. This is the sum of $15,314.

I have not assessed damages as a sum equal to one half of the difference between that cost and the amount already paid by the defendants, despite the Magistrates Court order to fence, requiring the defendants pay the applicant half the costs of the fence. This is because the cost of reinstatement was the cost of construction of the fence. This is what the defendants are liable to pay. They have not paid this full amount to date. As I put to Mr Crow during argument, the Magistrates Court proceeding was merely the mechanism to facilitate the building of the fence. The determination of the distribution of the building costs by that court is not determinative of the assessment of damages by this court, particularly where the defendants have not made full payment in accordance with that order.

Therefore I assess restitutionary compensatory damages as $15,314. Consistent with paragraph [148] of this decision, these damages are for both trespass and nuisance. Further, I am satisfied the measure of the damages to the reversion would be the same, if it is necessary to sue on this basis rather than for trespass.

As it is properly accepted by the plaintiff that the claim for diminution in value of land is an alternative head of damage to reinstatement, I make no order for it.

I also make no order for damages concerning trespass to land and removal of soil and the destruction of the three bushes. Although I accept the proposition that the plaintiff is entitled to have his right of property vindicated by a substantial award of damages,[304] I consider he is sufficiently compensated by the damages awarded for reinstatement. I note that in the final paragraph of the plaintiff’s submissions in reply, the judgment sought does not make any claim under these heads of damage.
[304]Plenty v Dillon (1991) 171 CLR 635 per Gaudron and McHugh JJ at 644-655 [24].

Aggravated compensatory damages

In support of the plaintiff’s claim for aggravated compensatory damages, Mr Crow refers to his unchallenged evidence that, as a result of the defendants’ action in excavating the land and the consequent arguments the plaintiff had with Mr Rycen, he has had significant stress and worries, has both lost and gained weight, and developed teeth grinding and associated jaw problems for which he has spent $3,000-$4,000 treating.[305]
[305]Plaintiff’s Submissions in Reply, 2 June 2009 at 5.1

He also refers to the plaintiff’s evidence that although he was unsure if “violated” was the appropriate word to describe his feelings about the events of 20 January 2004, he submits it is the appropriate word.

Although the claim is for $50,000 for “aggravated and exemplary damages”, in the plaintiff’s Submissions in Reply separate claims are made for aggravated compensatory damages and exemplary damages in the sum of $25,000 each.[306]
[306]Ibid at 5.2.

It is submitted on behalf of the defendants that:[307]
[307]Submissions on behalf of the defendants, 21 May 2009 at p 7.

“1.UCPR 150(1)(b) requires ‘every type of damage claim … including exemplary damages’ to be pleaded.
2.Aggravated damages and exemplary damages are distinctly separate categories of damages, one being consequential and the other discretionary.
3.Therefore, the correct application of UCPR 150(1)(b) requires each separate amount of damages to be pleaded …”

In relation to the factual issues, there is no denial that on 20 January 2004 and 21 February 2004 Mr Rycen disputed angrily with the plaintiff, and in doing so used language that all members of the general public once would have considered obscene, and some still do. Mr Appleton said the core of the dispute on both days was their different views on the type of wall to be constructed. He accepted that Mr Rycen referred to the plaintiff’s father as an idiot. However, he submitted there was no evidence he directly insulted the plaintiff.[308]
[308]Ibid at 6.

It is argued that the confrontation should be seen as part of the history of ongoing negotiations about the type of retaining wall to be constructed. Against this background it is submitted negotiating styles, even among skilled negotiators, vary greatly, and Mr Rycen’s negotiating style may rightly be characterised as predominantly aggressive and angry. Further, it is said universal human experience suggests that such unpleasant incidents as those which took place and the hurt feelings they cause are part of the transitory exigencies of the day, and are too trifling to merit an award of damages.[309]
[309]Ibid.

Finally, it is argued the plaintiff gave evidence of “mental trauma” within the meaning given to that phrase in TCN Channel Nine Pty Ltd v Anning[310] and that such an injury must be proven to be the natural and probable consequence of the tort. It is submitted that there is no such proof here, and such injuries need to be proven by appropriate expert reports.
[310](2002) 54 NSWLR 333.

With reference to the defendants’ criticisms of the plaintiff’s pleadings as being deficient in its allegations of damages, it is accepted that r 150(1)(b) of the UCPR requires every type of damages claimed, including, but not limited to, special and exemplary damages, must be specifically pleaded. Rule 155(1) requires the pleading to state the nature and the amount of damages claimed. In TCN Channel Nine Pty Ltd v Anning, the trial judge combined aggravated and exemplary damages in a single award. It was submitted that the failure to separately identify the amount awarded as exemplary damages was in error.[311] After analysing the distinction between aggravated and exemplary damages that emerges from the discussions which I have previously referred to, it was held that this submission should be accepted because:[312]

“One purpose of exemplary damages is to mark disapproval by the Court of a defendant’s conduct and to do so in a way that deters that person and others from acting in that way. This purpose is best served if a discrete amount is awarded by way of exemplary damages. It is also impossible to compute interest on compensatory, including aggravated damages when exemplary damages are included in a single award of damages.”

[311](2002) 54 NSWLR 333 at 351.

[312]Ibid at 633-4.

If as a result of this case rr 150(1)(b) and 150(1) of the UCPR are to be interpreted as requiring aggravated and exemplary damages be separately pleaded as submitted by Mr Appleton, even accepting that expecting a plaintiff to comply with specific pleading provisions is not a matter of mere pedantry,[313] I apply what I have said at paragraph [157] of this decision. At no time did the defendants write to the plaintiff under r 444 of the UCPR specifying any complaint about any aspect of the pleadings and no application was brought for further and better particulars under r 161(1) of the UCPR. There is nothing in the pleading that is capable of taking the defendants by surprise within the meaning of r 155(4) of the UCPR. It is clear from the submissions made by them about factual issues that they are fully alert to the case they have to meet at trial concerning, inter alia, aggravated damages. In these circumstances, I consider the failure to plead the claims for aggravated and exemplary damages separately does not bar me from considering these claims now the quantum claimed in each case has been separately itemised in the submission and the defendants have made detailed submissions as to why I should not award damages under either of these heads of damage.
[313]Meredith v Paloncam Pty Ltd & Anor [2000] QCA 113 at [7].

As the authorities referred to above establish, aggravated compensatory damages may be awarded for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner and motive for which the defendant did it. As said in Gray v Motor Accident Commission, the reaction of the party who is wronged for high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. As also said in TCN Channel Nine Pty Ltd v Anning:[314]

“Humiliation, injured feelings and affront to indignity [sic] may be a natural and probable consequence of intrusion by the media on private property. Such damages is compensable as aggravated damages.”

[314](2002) 54 NSWLR 333 at 354.

I agree with Mr Appleton that the conduct of Mr Rycen, including the two confrontations with the plaintiff, must be seen as part of the history of ongoing negotiations about the type of wall to be constructed. It was accepted by Mr Rycen that despite these negotiations, which commenced in October 2003, they could not reach agreement as to the appropriate form of the retaining wall. He accepted the plaintiff wished to construct a besser brick and concrete retaining wall. The defendants claim not to recall the plaintiff saying that he wanted a properly engineered wall. However, given my assessment of the plaintiff and Mr Rycen as witnesses, I accept that the plaintiff said this. The defendants’ pleading accepts that in or about November 2003 there was another conversation about this, which ended in no agreement.[315]
[315]Defence of the Defendants, para 6(h).

Mr Rycen’s evidence was that his response to the plaintiff during these conversations was, “fair enough, we’ll work something out about it later”. I accept the plaintiff’s evidence he told Mr Rycen that, due to the costs involved, he would prefer to save up the money and do it in the financial year commencing on 1 July 2004. I also accept he had rejected a proposal from Mr Rycen that included excavating out from his land. I am satisfied this was the status of the negotiations on 20 January 2004. There is no suggestion Mr Rycen had attempted to contact the plaintiff prior to this date with any advice that he intended to excavate along the dispute boundary until 19 January 2004. This is confirmed by the following evidence-in-chief of Mr Rycen:[316]
[316]T 2-79 ll 16-28. There is a suggestion in Mr Rycen’s evidence at T 2-75 ll 32-43 that at some unspecified time around Christmas 2003 he phoned the plaintiff and said they were going to have to do something about this, but the plaintiff’s answer was still the same.

“What was the last time before the 20^th January that you had contact with him?-- I tried ring him on the 19^th -----
On the 19^th -----
Okay?-- ----- about the big rubber tree.
…
Was that the only time you tried ringing him?-- Well, earlier I had rung him about those – about the other bushes.
When was that?-- That was – that was 2003 that I rang him about these poisonous bushes.”

When the plaintiff arrived at his property, Mr Rycen said he wanted to talk to him about the remaining tree.

By the time the plaintiff arrived, despite the status of the negotiations and his having no prior notice of Mr Rycen’s intentions, the earthmoving equipment had already been used to cut into his land. This was without his knowledge or consent. It is not surprising in these circumstances the plaintiff “insisted that the defendant ceased encroaching” on his land.[317]
[317]Defence of the Defendants, para 6(n).

I have previously rejected Mr Rycen’s evidence this excavation work was done before Mr McNee’s survey. It follows I conclude that when he marked out the dispute boundary line for the excavator operator, he knew the surveyed position of that boundary. Having come to this conclusion, I also find that he intentionally caused the excavator operator to excavate on the plaintiff’s land at all times. This was despite his knowledge of the plaintiff having previously rejected his proposal that included excavating out from his land. I reject his evidence that any aspect of the transgression was unintentional.[318]
[318]See, for example, Mr Rycen’s evidence at T 2-77 ll 24-37.

I find he proceeded in this manner without first advising the plaintiff because he had hired the excavator operator after he had come to an agreement with the neighbour on his western boundary and he had the equipment on the land. It therefore became urgent to utilise the equipment while it was there for this purpose. He agreed he probably said, “I had to start yesterday” during his conversations with the plaintiff on 20 January 2004. This was in the context of his concern that the rock wall was a safety risk. Although, as indicted, he agreed during his evidence that he never raised any question of the wall being dangerous until well after the work had commenced.

It is in this context, Mr Rycen’s angry and aggressive approach to the plaintiff’s legitimate insistence he cease encroaching on his land is to be considered. I reject any suggestion on his behalf that this approach was part of a negotiation between the parties.

I consider the way in which Mr Rycen conducted himself on this occasion is an integral part of the manner in which he committed the wrongful physical act against the plaintiff’s land.

I find as alleged by the plaintiff, and supported by his father, Mr Rycen’s aggression involved him being agitated, abusive and swearing. The plaintiff’s father was concerned from Mr Rycen’s body language that it could become physical. Mr Rycen accepts he could have told the plaintiff that he was, “fucking doing you a favour”. There is no evidence the plaintiff was swearing at him. Mr Rycen simply said he did not know this. He suggested the plaintiff was yelling at him. It would be understandable if the plaintiff raised his voice in these circumstances, because Mr Rycen’s response to the plaintiff was high handed in the extreme, in circumstances in which he had intentionally removed earth from the plaintiff’s land. It is not surprising the plaintiff felt annoyed, angry and confused about where this attitude was coming from. I accept the plaintiff’s evidence that he was not abusive towards Mr Rycen. It would not be surprising if he felt violated in these circumstances.

Importantly, Mr Rycen accepts the plaintiff told him to stop work and not do anything else until there was a written agreement as to what would occur.

I find that despite the plaintiff legitimately confirming he wanted the trespass and nuisance to stop, Mr Rycen removed further soil from the plaintiff’s land. This is because when the plaintiff and his father left the property on 20 January 2004, about four metres of the rock wall remained. By the time the plaintiff returned at 5.30-6 am next day, all but about half a metre to a metre of this wall had been removed. This was confirmed by the unchallenged evidence of the plaintiff’s father. Mr Rycen does not deny that the remaining part of the wall had been removed. He believed the remaining part of the wall had been removed; and he did this himself over the next few days or when he was building the coppers log wall. Although, he conceded he could have removed the remaining rocks that afternoon, because he was upset. He did not appear to exclude that the excavator was being used to tidy up the area after he had dismantled it with a shovel.

Further, Mr Rycen again trespassed on the plaintiff’s land on 21 February 2004. This ignored the plaintiff’s telling him to stop work a month earlier. It also ignored the letter of 4 February 2004 which was received by him. It is clear from this letter that the previous work had been done without the plaintiff’s approval and without consultation; and unless a satisfactory arrangement was entered into within seven days, application would be made for an injunction restraining him from further work.

The trespass involved dumping soil onto the plaintiff’s property. In cross‑examination, Mr Rycen accepted he continued this after he was told to stop, by dumping two or three more loads. Although again the plaintiff was entitled to insist on this, Mr Rycen was very agitated and angry, called the plaintiff and his father idiots, and told the father to “fuck off”. It is not surprising that Mr Rycen was speaking loudly, due to the noise of the machine. However, his response to a legitimate approach by the plaintiff, who was supported by his father, was again unwarranted and high handed. Again, it is not surprising the plaintiff felt upset, angry and frustrated. Although he did not expressly mention he felt violated on this occasion, I consider that this was just another way of expressing the same feeling.

Although I proceed on the basis that, as was said in TCN Channel Nine Pty Ltd v Anning, humiliation, injured feelings and affront to dignity, which may be compensable as aggravated damages, is different to mental trauma or any form of personal injury, the plaintiff’s suffering of physical detriment and mental anguish as a result is evidence he suffered humiliation, injured feelings and affront to his dignity as a result.

In summary, I find that Mr Rycen’s behaviour in intentionally trespassing on the plaintiff’s land on two occasions within one month, his aggressive attitude towards the plaintiff’s legitimate requests for him to stop, and his ignoring of these requests were done out of malice and spite. The high-handed manner of this conduct was such as to cause feelings of violation in the plaintiff which injured his feelings, humiliated him and affronted his dignity.

I find this is a reason for awarding aggravated damages to compensate the plaintiff for the wrong done.

It is submitted on the plaintiff’s behalf that these damages should be set at $25,000, which is the same level as in TCN Channel Nine Pty Ltd v Anning. However, every case depends on its own facts, and that case concerned a trespass to land by a television reporter and cameraman filming on business premises and attempting to conduct an interview with a view to broadcasting. Those are different circumstances to the present case.

I find the decision of Forde DCJ in Dunn & Anor v Howard & Anor [2001] QD 030 of greater assistance. In that case the plaintiffs sought both aggravated and exemplary damages for trespass by the defendants for placing the spoil from an excavation on their land contrary to a permit, without their consent. However, the defendant believed he had permission to deposit the spoil. He had done so previously. It was the extent of the spoil which caused the plaintiffs to react in a negative fashion. The spoil was on the land for 15 months. It interfered with the plaintiffs’ access to part only of the Brisbane River from which the excavation occurred and which the plaintiffs used to water their stock. In this case, the defendants did not act in the high-handed manner Mr Rycen did in this case. However, it is relevant there was no separate identification of the amount awarded for aggravated damages. His Honour did not say the award did not incorporate both types of damages.

I have come to the conclusion that the quantum of damages should exceed those awarded in this case due to the more serious manner in which Mr Rycen conducted himself. However, I do not assess it at the level sought by the plaintiff.

In the circumstances of this case, I assess aggravated compensatory damages for both trespass and nuisance as $15,000. Again, it would make no difference if I was assessing damages in respect of the reversion, if it is necessary to sue on that basis rather than for trespass.

Exemplary damages

It is submitted that an award of exemplary damages should also be made in the present case, having regard to the deliberate destruction of the plaintiff’s land and the abuse of the plaintiff and his father. Reference is made to Mr Rycen’s swearing and aggressive conduct and calling the plaintiff’s father an idiot. It is argued that Mr Rycen’s conduct is deserving of punishment and is contumelious, high-handed and insolent. Of particular significance, it is submitted that if, as Mr Rycen says, he knew he had excavated into the plaintiff’s land, why would he commence swearing at the plaintiff on 20 January 2004 and continue with swearing at the plaintiff and his father on 21 February 2004?[319]
[319]Plaintiff’s Submissions in Reply, 2 June 2009 at 6.2 and 6.3.

On behalf of the defendants, while it is conceded that perhaps Mr Rycen’s actions were unwise, it is submitted they were not high-handed, outrageous or contumely. It is submitted that he committed a blunder for which, having been engaged in ensuing litigation, he has paid most dearly.

In arguing Mr Rycen’s behaviour did not exhibit conscious and contumelious disregard of the plaintiff’s rights and was not high-handed or outrageous, Mr Appleton relies on the following matters:[320]
[320]These are set out in the submission on behalf of the defendants presented in conjunction with oral argument at the trial.

· the defendant acted out of a sense of urgency believing, as he did, the old boulder wall was dangerous to children;

· before beginning excavation the defendant:

- tried on a number of occasions to contact the plaintiff; and

- erected a string line where he believed the boundary to be so as not to encroach onto the neighbouring land;

· the encroachment (if such there be) occurred on part of the plaintiff’s land which was overgrown, steep and very difficult to maintain;

· the defendant had formed a genuine belief that, to the extent this part of the plaintiff’s land had been maintained in the past, it was maintained by the occupants of the defendants’ property. In fact, the defendant himself had cleaned it up a couple of times;

· the defendant had not set out with the intention of encroaching onto the plaintiff’s land;

· the defendant excavated beyond the string line only when it became necessary to prevent loose soil from falling into the excavation;

· the defendant believed the encroachment was trivial, especially having regard to the condition and quality of the area and the way it has been used and maintained in the past.

· when confronted by the plaintiff, the defendant refrained from taking further soil from the plaintiff’s land and he said to the plaintiff, “What will I do about this machinery arriving today and all this loose material lying around everywhere?”

· the defendant was always willing, even anxious, to repair the damage done to the plaintiff’s land;

· the defendant believed the vegetation he removed from the plaintiff’s land was either worthless or poisonous; and

· unlike the defendants in Traian v Ware, the defendant made no attempt to hide his activities. On the contrary, he made many attempts to notify the plaintiff of them.

Mr Appleton also submits, with reference to the defendants’ personal and financial circumstances, the same factors should be taken into account as would be the case when determining the level of a fine to be imposed.

As held in TCN Channel Nine Pty Ltd v Anning and emphasised by Mr Appleton, exemplary damages are awarded rarely and require something more than a finding of fault. However, in circumstances in which I have concluded, contrary to Mr Appleton’s submissions, Mr Rycen intentionally trespassed on the plaintiff’s land on two occasions and acted in a high-handed manner, activated by malice and spite, I also find he showed a conscious and contumelious disregard for the plaintiff’s rights. Mr Rycen’s aggressive behaviour towards the plaintiff and his father on both occasions, despite his knowledge of excavating without permission on the plaintiff’s land, is of particular relevance. The fact is he did not seek permission before doing this in circumstances where the plaintiff had previously rejected a proposal that included excavating out from his land. There was nothing which inhibited him seeking such permission.

I am therefore satisfied a substantial award of exemplary damages is required to punish Mr Rycen for this conduct and to deter him and others from like conduct. In XL Petroleum Pty Ltd v Caltex Oil (Australia) Pty Ltd reference was made with apparent approval to Merest v Harvey where substantial exemplary damages were awarded for a trespass of a high-handed kind, which occasioned minimal damage.[321] As I have found, the damage in this case was not minimal.
[321](1985) 155 CLR 448 at 471; see para [162] of this decision.

I have not made these findings lightly and I have made them because the considerable seriousness and deliberation of this conduct warrants this remedy. It is not a case like Costi v Minister of Education,[322] where a momentary loss of self control resulting in a teacher assaulting a student was held not to call for an award of exemplary damages to punish or make an example of the teacher.[323]
[322](1973) 5 SASR 331.
[323]Ibid at 332.

This is not a case in which the plaintiff’s own conduct was responsible for the commission of Mr Rycen’s tortious acts, such as to mitigate or prevent the award of exemplary damages because of provocation.

In assessing the quantum of exemplary damages, in accordance with Pollack v Volpato,[324] I have regard to the means and resources of the defendants, to determine their capacity to pay the amount ordered.
[324][1973] 1 NSWLR 653 per Hutley JA at 657-8.

The personal and financial circumstances of Mr Rycen and his wife are set out in paragraphs [72] to [76] of this decision. As Mr Crow submits, whilst they are not wealthy, there is no evidence they are in poor financial circumstances.[325] He properly makes the point that, in the absence of evidence of the value of their house at Beech Avenue, I cannot form any view of their net wealth. What the evidence does show is their financial circumstances were such as to enable them to choose to give an unquantifiable amount of the proceeds to their children rather than to pay it towards the Beech Avenue mortgage.
[325]Plaintiff’s Submissions in Reply, 2 June 2009 at 6.5.

Unlike the example given in Pollack v Volpato, there is no evidence in this case that Mr Rycen and his wife are poor, such that, if they were ordered to pay the exemplary damages of the order I assess, they would lose their home.

The exemplary damage that I assess for both trespass and nuisance are $25,000. This is in accordance with the plaintiff’s submission.[326]
[326]As with the awards of compensatory restitutionary damages and aggravated compensatory damages, it would make no difference if I was assessing damages in respect of the reversion, if it was necessary to sue on this basis rather than for trespass.

Liability of Mrs Rycen

The plaintiff has sued Mrs Rycen on the basis her husband acted as her agent at all material times. It is denied in the defence that she appointed him as her agent for the purpose of dealing with the plaintiff or any other third party, or for the purposes of entering on to the plaintiff’s land. Despite this, oral and written submissions by both parties are silent on this issue. It is for this reason that I have addressed the claim with reference to Mr Rycen’s liability.

The High Court has recognised that when it is alleged that a person has acted as the agent for another, “the actual terms of the authority pleaded are not without importance”.[327]
[327]Petersen v Moloney (1951) 84 CLR 91 at 95.

As indicated, the plaintiff’s pleading goes no further than asserting that at all material times Mr Rycen acted in his own right “and as agent of the female defendant”.[328]
[328]Amended Statement of Claim, para 3.

In response, the defendants deny the allegation in the terms set out in paragraph [244].[329]
[329]Defence of the Defendants, para 2.

It is also admitted in the defence that Mrs Rycen knew and approved of her husband’s plan to do construction work on the dispute boundary.[330] She enlarged on this in her evidence by saying:

· she agreed with him to do whatever he wanted to do;

· she basically just handed the project over to him; and

· if he wanted to engage a contractor he didn’t have to consult her.

[330]Ibid.

It can be inferred that she knew that excavation would be involved because it is admitted that the “defendants hired a contractor with an excavator to work on both the western boundary and to remove the rocks on the dispute boundary”.[331] It can also be inferred that she knew the location of the true boundary between the plaintiff’s property and their property from 12 January 2004.[332]
[331]Ibid, para 6(i) and (j).
[332]Ibid para 6(c).

However, she also gave evidence that:

· she basically “just handed the project over to her husband”;

· she did not have any further involvement in it, because “that was men’s business”;

· she never directed her husband in the manner of the undertaking;

· she never instructed him to encroach or trespass on the plaintiff’s land;

· she was not aware he had trespassed on the plaintiff’s land “until it was too late”.

On this basis, it is denied, as set out above, that she appointed her husband as her agent for the purpose of entering onto the plaintiff’s land, or for the purpose of dealing with the plaintiff or any other third party. It is these two matters which are central to the liability of her husband to the plaintiff for trespass and nuisance and for aggravated and exemplary damages.

Therefore, the vital question is whether her husband was her agent for either of these purposes.[333] This extends beyond his actual authority to his apparent, implied or ostensible authority.
[333]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd; [2004] HCA 52; (2004) 219 CLR 16; 79 ALJR 129; 211 ALR 342 at [80].

I consider the state of the evidence is too vague for me to be satisfied on the balance of probabilities that her husband was acting with her actual, apparent, implied or ostensible authority for these purposes.

Accordingly, I do not find her jointly and severally liable with her husband to the plaintiff for trespass to land and nuisance.

Conclusion and orders

I give judgment for the plaintiff for trespass to land and nuisance against Anthony Peter Rycen as follows:

(a) Restitutionary compensatory damages $15,314

(b) Aggravated compensatory damages $15,000

(c) Interest at 10% per annum from 20 January 2004 to $18,734

26 March 2010 ($30,314 x 10% x 6.18)

(d) Exemplary damages $25,000

TOTAL$74,048

I will hear the parties’ submission as to costs.

CITATION:	Stereff v Rycen & Anor [2010] QDC 117
PARTIES:	PETER ROBERT PAUL STEREFF (Plaintiff) AND ANTHONY PETER RYCEN and BERNADETTE DOROTHY RYCEN (Defendants)
FILE NO/S:	D25/05
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Gladstone
DELIVERED ON:	26 March 2010
DELIVERED AT:	Gladstone
HEARING DATE:	30 April, 1 May 2009 (with further written submissions received to 5 June 2009)
JUDGE:	Irwin DCJ
ORDER:	I give judgment for the plaintiff for trespass to land and nuisance against Anthony Peter Rycen as follows: (a)Restitutionary compensatory damages$15,314 (b)Aggravated compensatory damages$15,000 (c)Interest at 10% per annum from$18,734 20 January 2004 to 26 March 2010 ($30,314 x 10% x 6.18) (d)Exemplary damages$25,000 TOTAL $74,048
CATCHWORDS:	TRESPASS – TRESPASS TO LAND – where the plaintiff was a landlord – where the plaintiff did not prove that he was in exclusive possession of the land at the times of the alleged trespass – whether the plaintiff could sue in trespass as owner of the land, for compensation for damage to the reversion NUISANCE – WITHDRAWAL OF SUPPORT FROM LAND – where the plaintiff was a landlord – where the plaintiff did not prove that he was in exclusive possession of the land at the times of the alleged interference – whether the plaintiff could sue in nuisance as owner of the land for damage to his reversion PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – CIVIL JURISDICTION – PROCEDURE UNDER THE RULES OF THE COURT – PLEADING – GENERALLY – where the plaintiff claims the defence discloses deemed admissions of quantum of damages pursuant to rule 166(5) of the Uniform Civil Procedure Rules 1999 – whether the pleading discloses sufficient explanation to amount to a denial – whether the plaintiffs conduct in seeking to prove facts on which the court could make a factual assessment of the quantum of damages was inconsistent with reliance on the proposition, not made until final submissions that quantum was not in issue by virtue of rule 166(5) – whether there was good reason to relieve the defendants of any deemed admissions PRINCIPAL AND AGENT – IN GENERAL – where the male and female defendants were husband and wife – where the male defendant committed trespass and nuisance on the plaintiffs land in the course of doing construction work on a common boundary – where the female defendant agreed with the male defendant’s plan to do construction work – where the female defendant knew excavation would be involved – where the female defendant handed the project over to the male defendant – where the female defendant never directed the male defendant in the manner of the undertaking – where the female defendant never instructed the male defendant to encroach or trespass on the plaintiff’s land – where the female defendant was not aware the male defendant had trespassed on the plaintiff’s land until it was too late – whether the male defendant acted as the agent of the female defendant for the purpose of entering onto the plaintiff’s land and for the purpose of dealing with the plaintiff or any other third party so as to make her a joint tortfeasor with him DAMAGES – COMPENSATORY DAMAGES – whether the plaintiff is entitled to compensatory damages for the conduct of the defendants for trespass to his land, and nuisance for withdrawal of support from the land DAMAGES – AGGRAVATED DAMAGES – where the male defendant intentionally caused an excavator operator to excavate on the plaintiff’s land, without first advising the plaintiff – where the male defendant responded angrily and aggressively to the plaintiff’s insistence that he cease encroaching on the land – where the plaintiff experienced feelings of violation as a result – where the male defendant removed further soil from the plaintiff’s land after being told by the plaintiff to stop – where the male plaintiff committed a further trespass one month later by dumping soil on the plaintiff’s land – where the male defendant again responded angrily and aggressively when he was told to stop – where the male defendant dumped further soil on the plaintiff’s land after being told to stop – whether in these circumstances aggravated damages should be awarded DAMAGES – EXEMPLARY DAMAGES – where the male defendant intentionally caused an excavator operator to excavate on the plaintiff’s land, without first advising the plaintiff – where the male defendant responded angrily and aggressively to the plaintiff’s insistence that he cease encroaching on the land – where the plaintiff experienced feelings of violation as a result – where the male defendant removed further soil from the plaintiff’s land after being told by the plaintiff to stop – where the male plaintiff committed a further trespass one month later by dumping soil on the plaintiff’s land – where the male defendant again responded angrily and aggressively when he was told to stop – where the male defendant dumped further soil on the plaintiff’s land after being told to stop – whether in these circumstances exemplary damages should be awarded Uniform Civil Procedure Rules 1999 (Qld) r 149, r 150, r 155(4), r 157, r 161(1), r 166, r 367, r 375, r 376, r 444 Limitation of Actions Act 1974 (Qld) s 10(a)(a) Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeships Scheme Ltd [2008] QCA 100, applied Ballesteros v Chidlow No. 2 [2005] QSC 285, applied Coco v The Queen (1994) 174 CLR 427, cited Coleman v Watson & Shaw & Anor [2007] QSC 343, applied Cooper v Crabtree (1882) 20 Ch D 589, cited Costi v Minister of Education (1973) SASR 331, distinguished Dunn & Anor v Howard & Anor [2001] QDC 030, cited Fontin v Katapodis (1962) 108 CLR 1, cited Georgeski v Owners Corporation Sp 49833 [2004] NSWSC 1096, cited Gray v Motor Accident Commission (1998) 196 CLR 1, cited Grove v Purvis [2003] QDC 151 Jones v Dunkel (1959) 101 CLR 298, cited Jones v Llanrwst Urban District Council [1911] 1 Ch 393, applied Kidgill v Moor 9 CB 364, cited Lamb v Cotongo (1987) 164 CLR 1, cited Lockwood Buildings v Trust Bank [1995] 1 NZLR 22, applied Mayfair Property Company v Johnston [1894] 1 Ch 508, cited Meredith v Paloncam Pty Ltd & Anor [2000] QCA 113, cited Petersen v Moloney (1951) 84 CLR 91, cited Plenty v Dillon (1991) 171 CLR 635, cited Pollack v Volpato [1973] 1 NSWLR 653, cited Port Stephens Shire Council & Anor v Tellamist Pty Ltd [2004] NSWCA 353, applied Proprietors of the Centre BUP No. 343 v Bourne [1984] 1 Qd R 613, cited Seabrook v Allianz Australia Insurance Limited & Ors [2005] QCA 58, cited Rodrigues v Ufton (1894) VLR 539, distinguished TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, applied Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, applied Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 16; 79 ALJR 129; 211 ALR 342, cited Traian v Ware [1957] VR 200, cited Trend Management Ltd v Borg [1996] NSWSC 588, cited XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448, cited
COUNSEL:	G.F. Crow for the plaintiff A.W. Appleton (Solicitors) for the defendants
SOLICITORS:	Tony Goodwin & Company for the plaintiffs Peter Roche & Associates for the defendants

(a)	Cost to rectify damage caused by male Defendant (full particulars of which are contained in the quote of Bob Ryan’s Home Improvements Pty Ltd dated 14 February 2005	$16,632.00
(b)	Damages for trespass to land and removal of soil	$5,000.00
(c)	Damages for destruction of three bushes	$1,500.00
(d)	Diminution in value of land	$10,000.00
(d) [sic]	Aggravated and exemplary damages	$50,000.00
TOTAL	$83,132.00