CAMPBELLTOWN GOLF CLUB LTD v WINTON and ANOR [1998] NSWCA 51

CAMPBELLTOWN GOLF CLUB LTD v WINTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL JJA and SHEPPARD AJA 10 June 1998, 23 June 1998

[1998] NSWCA 51

NUISANCE — Nuisance suffered by respondents whose residential property abutted golf course — Nuisance caused by golfers hitting golf balls on to respondents' property — Appeal limited to challenge to amount awarded for general damages — Submission by respondent that Court, in assessing damages, should have taken into account the fact that the plaintiffs moved to the area knowing that a golf course adjoined their property — Discussion of "coming to the nuisance" — Relevance of this in relation to damages — Whether amount awarded for general damages excessive — Appeal dismissed.

Sheller JA I agree with Sheppard AJA.

Powell JA I agree with Sheppard AJA.

Sheppard AJA This is an appeal from a judgment of the District Court (Backhouse DCJ) in which the respondents, who were the plaintiffs in the proceedings at first instance, recovered a verdict in the sum of $26,214.80. The cause of action relied upon by the respondents was nuisance. The amount of the judgment was made up as follows:

This is an appeal from a judgment of the District Court (Backhouse DCJ) in which the respondents, who were the plaintiffs in the proceedings at first instance, recovered a verdict in the sum of $26,214.80. The cause of action relied upon by the respondents was nuisance. The amount of the judgment was made up as follows:

General damages: $15,000.00 Liquidated damages: 8,515.40 Interest on general damages: 1,500.00 Interest on $5,997.00: 1,199.40 $26,214.80

The sum of $5,997.00 was the amount expended by the respondents up to the date of the hearing on certain repairs and alterations to their house at Glen Alpine, a suburb in the Campbelltown area. The appellant does not challenge her Honour's findings on liability nor her Honour's findings in relation to damages except those made in relation to general damages. Thus, the question to be determined in the appeal is whether the Court should disturb the award of $15,000 for general damages which the respondents recovered. If the Court were to uphold the appeal, there would need also to be a reduction in the amount awarded for interest on the general damages.