Yates Holdings Victoria Pty Limited v Davey

[2024] NSWDC 394

District Court

New South Wales

Medium Neutral Citation:	Yates Holdings Victoria Pty Limited v Davey [2024] NSWDC 394
Hearing dates:	17 April 2024
Date of orders:	17 April 2024
Decision date:	17 April 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff against the defendant, for $453,500. I order the defendant to pay the plaintiff's costs.
Catchwords:	Trespass to land – Assessment of the damages incurred by owner of property: loss of rent, costs of remediation of property after vacated by trespasser.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Yates Holdings Pty Limited Defendant – Lynne Davey
Representation:	Counsel: Plaintiff – Mr Smith, D.K. Defendant – No appearance. Solicitors: Plaintiff – Roberts & Partners Lawyers. Defendant – No appearance.
File Number(s):	2023/00150930
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: By a Statement of Claim filed on 11 May 2023, the plaintiff claimed damages from the defendant for trespass to the defendant's land, located on Pritchard Avenue, Huskisson, in this State. The trespass is alleged to have commenced on 21 April 2016, but that, as I understand it, is the date upon which the plaintiff became the registered proprietor of the property.

2. According to the Statement of Claim, the defendant vacated the property at the behest of the plaintiff in or about March 2022. The plaintiff claims the loss of mesne profit on the property during the period of the defendant's occupation, essentially being the rent which it could have expected the defendant to pay if she were a lawful occupier. The plaintiff also claims the costs of remediating the property, which was carried out by Rix Specialist Contracting of Kurnell, between 11 April and 27 April 2023.

3. On 6 November 2023, the plaintiff obtained an order for judgment for the plaintiff against the defendant for damages to be assessed. That order was made by the Principal Registrar on the application of the plaintiff. This is an assessment hearing. I am satisfied on the evidence before me that the defendant has been personally notified of today's hearing and has been personally served with the evidence relied upon by the plaintiff and she has not appeared today, nor has there been any appearance on her behalf.

4. The valuation of the mesne profit lost by the defendant has been made by Mr Leigh Bridges, a certified practising valuer. He has assessed that the market rental for the period from 21 April 2016 to 1 March 2022 was $283,000. I have carefully read the report and I find no flaw in it.

5. Exhibit B is an affidavit of Mr George Bojdak, a director of the plaintiff company. He confirms that the defendant left several tonnes of general waste on the land surrounding the house, which included used car batteries, used vehicles, bricks and building materials and similar items which required proper disposal. For that purpose, he engaged Rix Specialised Contracting, which carried out work in the period to which I have already referred. The tax invoice before me, relied upon today, is in the sum of $170,500. I have no hesitation in allowing that sum. The total of those two sums is $453,500.

6. For those reasons, I give verdict and judgment for the plaintiff against the defendant, for $453,500. I order the defendant to pay the plaintiff's costs.

7. HIS HONOUR: Any other orders sought?

8. SMITH: No.

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Decision last updated: 03 September 2024