MARTIN LEWIS SHIPWRIGHTS PTY LTD v HUTTON [1988] NSWCA 92

MARTIN LEWIS SHIPWRIGHTS PTY LTD v HUTTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HOPE (2), PRIESTLEY (3) AND CLARKE (1) JJA 16 March 1988

[1988] NSWCA 92

Nuisance — Injunctions — Orders made not sought in summons or at the hearing — error of law — provision in summons seeking "such further or other order as the court thinks fit" does not justify making substantive order without notice to the party against whom it is made.

ORDERS

The appeal is upheld. Orders 1 and 2 of 19 May 1987 are set aside. Order 4 is varied to exclude reference to orders | and 2. Otherwise the orders made by Bryson J on 19 May 1987 confirmed. The respondent should pay the appellant's costs of the appeal and have a certificate under the Suitors' Fund Act.

Clarke JA The appellant has, for many years, conducted a shipwrights business in the grounds of the Royal Motor Yacht Club of New South Wales, Broken Bay Branch, at 46 Prince Alfred Parade, Newport. Immediately to the east of these premises is a private residence in which the respondents have lived since 1982. Their house is set in a pleasant residential area of high amenity enhanced by the proximity of Pittwater, ready access to facilities for boating and convenient access to other amenities.

However, during their residence they have found that waste materials from the appellant's sanding, grinding and spray painting operations, which are carried out in the normal course of a shipwright's business, was regularly deposited on their land in such a manner as to cause them considerable distress.

Accordingly, on 23 January 1986 they filed a summons returnable before the Equity Division of the court in which they sought the following orders: "1. An order that Martin Lewis Shipwrights Pty Ltd by itself, its servants and agents be restrained from carrying on sanding operations on boats and spray painting in such a manner as to escape onto the Plaintiff's property so as to constitute a nuisance to the Plaintiffs. 2. An order that the Defendant pay damages to the Plaintiffs in respect of damage suffered to the Plaintiff's property. 3. Costs. - 4. Such further or other order as the court thinks fit."