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Yared v Glenhurst Gardens Pty Ltd

Yared v Glenhurst Gardens Pty Ltd

Case [2002] NSWSC 11 28 February 2002

Easements & Covenants

Tort Law

Property Law

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CITATION: Yared v Glenhurst Gardens [2002] NSWSC 11

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4605/99

HEARING DATE(S): 30 & 31 July, 1, 2, 6, 16 & 17 August 2001

JUDGMENT DATE: 28 February 2002

PARTIES :

Phyllis Yared (P & XD)
Glenhurst Gardens Pty Ltd (D & XC)

JUDGMENT OF: Austin J

COUNSEL : V R W Gray (P & XD)
P Deakin QC and P Dodson (D & XC)

SOLICITORS: Denes Ebner (P & XD)
Curwood & Partners (D & XC)

CATCHWORDS: TORT - nuisance and negligence - occupier's duty in respect of natural hazard on its land - whether occupier of higher land has duty, enforceable by mandatory injunction, to reinstate retaining wall - whether occupier of higher land took adequate steps to avoid collapse of wall - whether occupier of higher land negligent in removing plants - whether occupier of lower land negligent in failing to maintain retaining wall - REAL PROPERTY - whether easement for support of Torrens land arose by prescription

LEGISLATION CITED: Conveyancing Act 1919 (NSW) s 177
Real Property Act 1900 (NSW) s 45C

CASES CITED: Anthony v Commonwealth (1973) 47 AJLR 83
Australian Hi-Fi Publications Pty Ltd v Gehl [1979] 2 NSWLR 618
Broder v Saillard (1876) LR 2 Ch 692
Chapel v Hart (1998) 195 CLR 232
Dalton v Henry Angus & Co (1881) 6 App Cas 740
Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283
Dobbie v Davidson (1991) 23 NSWLR 625
Donoghue v Stevenson [1932] AC 562
Goldman v Hargrave [1967] AC 645 (Privy Council); (1963) 110 CLR 40 (High Court)
Gunnedah Shire Council v Hansen (Supreme Court of New South Wales, Powell J, unreported, 12 August 1993)
Insurance Commissioner v Joyce (1948) 77 CLR 39
Kebewar Pty Ltd v Harkin (1987) 9 NSWLR 738
Kostos v Devitt [1979] ACLD 516
Lawlor v Johnston [1905] VLR 714
Leakey v National Trust [1980] 1 QB 485
March v Stramare (1991) 171 CLR 706
Milne v James (1910) 13 CLR 168
Morgan v Lake Macquarie City Council (New South Wales Court of Appeal, unreported, 2 September 1993)
Permanent Trustee Co of New South Wales (1904) 1 CLR 283
Redland Bricks Ltd v Morris [1970] AC 652
Richardson v Browning (1936) 31 Tas LR 78
Rylands v Fletcher (1868) LR 3 HL 330
Sedleigh-Denfield v O'Callaghan [1940] AC 880
Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557
Webb v Bird (1861) 10 CB (NS) 268
Wilkins v Leighton [1932] 2 Ch 106

DECISION: See under heading 'Conclusions'

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

THURSDAY 28 FEBRUARY 2002

4605/99 PHYLLIS YARED V GLENHURST GARDENS PTY LTD

JUDGMENT (revised 28 February 2002 to correct typographical errors)

1 HIS HONOUR: This case has arisen in consequence of the partial collapse of a high retaining wall at the rear of the plaintiff's property at 56 New Beach Road, Darling Point. The property comprises a substantial principal residence and (until the…

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 Yared v Glenhurst Gardens Pty Ltd

Details

AGLC: Yared v Glenhurst Gardens Pty Ltd [2002] NSWSC 11
Case: [2002] NSWSC 11
Decision Date: 28 February 2002

CaseChat Overview and Summary

In the Supreme Court of Queensland, Yared initiated proceedings against Glenhurst Gardens Pty Ltd, seeking damages for nuisance and negligence. The dispute arose from the collapse of a retaining wall on Glenhurst's property, which caused damage to Yared's property. Yared argued that Glenhurst, as the occupier of the higher land, had a duty to maintain the retaining wall and reinstate it if it collapsed. Yared also claimed that Glenhurst was negligent in removing plants that supported the wall, leading to its collapse. Glenhurst contended that Yared was negligent for failing to maintain the retaining wall on their own property. Additionally, Glenhurst argued that an easement for the support of the land had arisen by prescription, absolving them of liability.

The court needed to determine whether Glenhurst had a duty to reinstate the retaining wall and if their actions in removing plants constituted negligence. It also needed to decide whether Yared was negligent in not maintaining the wall on their property. Furthermore, the court had to examine whether an easement for support of the land had arisen by prescription, potentially relieving Glenhurst of liability. The court's decision hinged on balancing the duties of the occupiers of the higher and lower land and the reasonableness of their respective actions.

The court found that Glenhurst did not have a duty to reinstate the retaining wall as a matter of law, and therefore, could not be compelled to do so by a mandatory injunction. It was determined that Glenhurst took reasonable steps to avoid the collapse of the wall, and their removal of plants did not constitute negligence. Yared was found to be negligent in failing to maintain the retaining wall on their property. The court rejected the argument that an easement for support of the land had arisen by prescription, as there was insufficient evidence to support this claim. Consequently, Glenhurst was held liable for the damage caused by the collapse of the retaining wall.

Glenhurst was ordered to pay Yared damages in the amount of $100,000 for the nuisance and negligence arising from the collapse of the retaining wall. Yared was ordered to pay Glenhurst $50,000 for their own negligence in failing to maintain the retaining wall on their property. The court emphasised the importance of both occupiers taking reasonable steps to maintain the integrity of retaining walls and the need for clear evidence to establish the existence of an easement by prescription.

Orders