GRAHAM BENSON STEEL AND STEEL and ASSOCIATES PTY LTD v SEYMOUR AND ANOR [1992] NSWCA 96

GRAHAM BENSON STEEL AND STEEL and ASSOCIATES PTY LTD v SEYMOUR AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and SHELLER JJA 2 March 1992, 20 March 1992 [1992] NSWCA 96

Encroachment of building — breach of duty — causal connection — reliance — inference — question of fact — no question of principle.

Mahoney JA I agree with the judgment of Clarke JA.

Clarke JA The respondents ("the Seymours") purchased 33 Pine Avenue, East Ballina, by Contract of Sale dated 15 December 1980. The contract was settled on 19 December 1980. They remained the owners of the house until 1985 when they sold it to Mrs Barbara Browning who was also a party in what was, at first instance, a complex piece of litigation.

The previous owner of 33 Pine Avenue had constructed a deck and patio on the north-western corner of the land and this structure and the retaining wall on which it rested encroached onto the adjoining lot on which 31 Pine Street was constructed. Indeed the retaining wall abutted directly against the timber walls of the adjoining cottage a fact which led to the eventual rotting of those timbers.

Boed Pty Ltd ("Boed") purchased 31 Pine Avenue in about October 1981 and the cottage was used as a home for Mr Funnell who was the principal of Boed. At the time Boed purchased these premises neither Funnell nor the Seymours knew that the patio, deck and retaining wall encroached onto 31.

However, in about 1983 water flooded into Boed's house during a tropical cyclone. The morning after this occurrence Funnell made an inspection and observed the concrete patio against his house.

Inside his house he pulled down one of the interior walls and found that the exterior timbers had been rotted out, allowing water from outside to go straight through onto the Gyprock wall. He called a surveyor in and the encroachment was discovered. Thereupon Boed claimed compensation from the Seymours and demanded that they remove the encroachment. Its demands were not met and on 14 February 1985 it filed a summons seeking, inter alia, an order that the encroachment be removed and a declaration that Boed was entitled to damages for nuisance.