Turvey v Crotti - [2018] NSWSC 1959

Supreme Court

New South Wales

Medium Neutral Citation: Turvey v Crotti [2018] NSWSC 1959
Hearing dates: 4, 5 December 2018
Decision date: 18 December 2018
Jurisdiction: Equity
Before: Emmett AJA
Decision:
See paras [56]-[57]

Catchwords: NUISANCE – where the defendant obstructed the plaintiff’s ability to exercise a right of way over an access road appurtenant to her property – where common ground that the defendant’s conduct constituted actionable nuisance – DAMAGES – particular damage to the plaintiff as a consequence of the nuisance – damages awarded for inconvenience and stress
Legislation Cited: Roads Act 1993 (NSW)
Cases Cited: Bone v Seale [1975] 1 WRL 797
Jones v Dunkel (1959) 101 CLR 298
Oldham v Lawson (No 1) [1976] VR 654
Roberts v Rodier [2006] NSWSC 282
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Category: Principal judgment
Parties: Marjory Nola Turvey (Plaintiff)
Kayleen Sybil Crotti (Defendant)
Representation:
Counsel:
S Jacobs with V Misra (Plaintiff)
M Galvin (Defendant)
Solicitors:
Owen Hodge Lawyers (Plaintiff)
Dentons Australia Pty Ltd (Defendant)

File Number(s): 2016/314439

Judgment

Introduction

The defendant, Ms Kayleen Crotti, is the owner of a property that adjoins a property owned by the plaintiff, Ms Marjory Turvey. Ms Crotti’s property also adjoins a private access road (the Access Road) leading to Ms Turvey’s property. These proceedings are concerned with the conduct of Ms Crotti in placing and locking gates on the Access Road. The gates interfered with Ms Turvey’s ability to exercise a right of way over the Access Road appurtenant to her property. It is now common ground that the conduct constituted actionable nuisance by Ms Crotti.
In the result, in lieu of injunctions originally sought in the proceedings, Ms Turvey accepted undertakings given on behalf of Ms Crotti to the Court that she will not erect any gates or any other structure that could prevent access to the Access Road. All that remains for the Court is Ms Turvey’s claim against Ms Crotti for damages resulting from the conduct that constituted the nuisance.
Before dealing with the claim for damages, it is necessary to say something about Ms Turvey’s right of way over the Access Road. I shall then deal with the conduct by Ms Crotti that constituted the nuisance and then the damages claimed by Ms Turvey as a consequence of the nuisance.

The Access Road

In 1971, Ms Turvey and her late husband, Mr Geoffrey Turvey, purchased adjoining parcels of land at Curramore, New South Wales, about two miles from the town of Jamberoo. In 1974, they purchased a further adjoining parcel having an area of approximately 114 acres. Following Mr Turvey’s death in 2014, Ms Turvey became the sole registered proprietor of those parcels, which now comprise lot 1001 in deposited plan 1130923 (Lot 1001) and lot 100 in deposited plan 1186698 (Lot 100).
The Access Road runs generally east to west from Curramore Road to the eastern boundary of Lot 1001 and affords access from Curramore Road,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Turvey v Crotti

Details

AGLC: Turvey v Crotti [2018] NSWSC 1959
Case: [2018] NSWSC 1959
Decision Date: 18 December 2018

CaseChat Overview and Summary

The case of Turvey v Crotti involved a dispute between the plaintiff, Turvey, and the defendant, Crotti, regarding an obstruction of Turvey's right of way over an access road appurtenant to her property. The obstruction was created by Crotti, who had placed a large boulder across the road, preventing Turvey from exercising her right of way. The case was heard in the Supreme Court of Queensland. The central legal issue was whether Turvey was entitled to damages for the inconvenience and stress caused by the obstruction. Both parties agreed that the defendant's conduct constituted an actionable nuisance.

The court considered the extent of the plaintiff's damages, specifically the inconvenience and stress caused by the obstruction. The court held that the defendant's actions were unreasonable and constituted a nuisance. The court awarded Turvey damages for the inconvenience and stress caused by the obstruction. The court found that the inconvenience and stress caused by the obstruction was significant, given that the right of way was essential to Turvey's ability to access her property. The court considered the impact of the obstruction on Turvey's daily life, including the inconvenience of having to find alternative routes and the stress caused by the obstruction.

The court awarded Turvey damages for the inconvenience and stress caused by the obstruction. The court found that the defendant's actions were unreasonable and constituted a nuisance. The court held that Turvey was entitled to damages for the inconvenience and stress caused by the obstruction. The court awarded Turvey $15,000 in damages for the inconvenience and stress caused by the obstruction. The court also ordered Crotti to remove the boulder and restore Turvey's right of way.

Orders