VUKOJA & VUKOJA

The case of *Vukoja & Vukoja* concerned a dispute between the parties, who were the registered proprietors of adjoining properties. The plaintiffs sought an injunction to restrain the defendants from continuing to trespass on their land and to remove an encroaching retaining wall. The matter came before Foster J in the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendants' retaining wall, which encroached onto the plaintiffs' property, constituted a trespass, and if so, what remedy was appropriate. The court was required to consider the principles of trespass to land and the equitable remedies available, particularly in circumstances where a structure encroaches on neighbouring property.

Foster J found that the defendants' retaining wall did indeed constitute a trespass upon the plaintiffs' land. His Honour applied the established legal principle that any unauthorised physical intrusion onto the land of another is a trespass. While acknowledging the potential for hardship to the defendants, the court determined that the plaintiffs were entitled to an injunction requiring the removal of the encroaching structure. The court reasoned that the right to exclusive possession of one's land was a fundamental proprietary right, and that the encroachment, however minor, was a continuing infringement of that right. The court rejected arguments that the encroachment was trivial or that damages would be an adequate remedy, emphasizing the importance of upholding property rights.

The court ordered that the defendants remove the encroaching retaining wall within a specified period and pay the plaintiffs' costs of the proceedings.