Odia No 2 Pty Ltd and C & A Fox Investments Pty Ltd v Proline Property Group Pty Ltd [2007] NSWLC 8

Local Court of New South Wales

CITATION: Odia No 2 Pty Ltd and C & A Fox Investments Pty Ltd v Proline Property Group Pty Ltd [2007] NSWLC 8 JURISDICTION: Civil Odia No 2 Pty ltd PARTIES: C & A Fox Investments Pty Ltd Proline Property Group Pty Ltd Magnolia Grove Investments Pty Ltd FILE NUMBER: 9285/05 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 01/31/2007 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Torts - Whether plaintiff able to succeed in nuisance when unable to succeed in negligence - Whether nuisance in circumstances - Legal relationship between nuisance and negligence - Whether person creating a nuisance will be strictly liable. LEGISLATION CITED: Rapier v London Tramways Co. (1980) 1893 2Ch 588. British Celanses Ltd v A.H. Hunt Capacitators (1969) 2All ER 1252. CASES CITED: Fennell v Robson Excavations Pty Ltd (1977) 2 NSWLR 486 Young v Wheeler (1987) ATR 80/126. Bolton v Stone (1951) Appeal Cases 850. Miller v Jackson (1977) QB 966. Counsel for Plaintiff: Mr G.J. Bateman Solicitors for Plaintiff : Patrick Grimes & Co. REPRESENTATION: Counsel for First Defendant: Mr M.C. Hay Solicitors for First Defendant: Quaerum Legal Advocate for Second Defendant: Mr R. Thambyraja (Director in person) Solicitors for Second Defendant: Lane & Lane until 21/3/06 ORDERS: Judgment for the defendants.

Reasons for Decision 1 The plaintiffs Odia No 2 Pty Ltd (hereinafter referred to as 'Odia') and C & A Fox Investments Pty Ltd (hereinafter referred to as 'C & A Fox') claimed to own property situated at 34 Clishold Street, Wahroonga. The property next door, 32 Clishold Road, Wahroonga was owned by the second defendant, Magnolia Grove Pty Ltd (hereinafter referred to as 'Magnolia Grove'). As at 9 February 2005 the second defendant had contracted with the first defendant, Proline Property Group Pty Ltd (hereinafter referred to as 'Proline') to do building work on its property. In relation to such building work it was necessary for a fence to be erected between the two properties and for that purpose, as at 9 February 2005, the first defendant Proline had engaged Greg Moffat, a fencing contractor, to install the fence and an excavation company to clear the fence line. Whilst clearing the line the excavator damaged the steel conduit pipe encasing the electrical cable (hereinafter referred to as the 'steel conduit pipe') which ran from the front of the plaintiff's property to the house situated on that property. The plaintiff's property was a battleaxe type block, with the house at the rear. The steel conduit pipe was damaged at a point near a large tree situated on the plaintiff's property almost 30 centimetres from the boundary (hereinafter referred to 'as the incident'). Whether the steel conduit pipe, at that point, was on the plaintiff's property or had been pushed by the roots of the tree into the defendant's property, was a matter in dispute. The damage to the cable required electricity to the house on the plaintiff's land to be cut off. It was necessary for urgent repair work to be carried out. The plaintiff sued the adjoining owner and its contractor and sought damages of $15,000.00. The amount of damage was subsequently particularised as follows: Kuringai Electrical Services $473.00 Fairland Constructions Pty Ltd $11,198.00 Loss of rent $480.00 $12,151.00