WALLACE V. POWELL & ORS. [2000] NSWSC 406

New South Wales Supreme Court

CITATION : WALLACE V. POWELL & ORS. [2000] NSWSC 406 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1119/99 HEARING DATE(S) : 28/04/00 JUDGMENT DATE : 18 May 2000

Michael John Wallace - plaintiff Laurence Edward Powell - 1st defendant PARTIES : Douglas James Powell - 2nd defendant Gaye Lorraine James (nee Powell) - 3rd defendant Ruth Shoobridge - 4th defendant Lance William Powell - 5th defendant JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. M. Podleska for plaintiff Mr. R. Dubler for defendants SOLICITORS : John McDonald & Partners, Murwillumbah for plaintiff Bolster & Co., Tweed Heads and Murwillumbah Lawyers, Murwillumbah for defendants CATCHWORDS : NUISANCE - Public nuisance - Obstruction of public road - Liability of person who created nuisance - Liability of persons who fail to end it - Particular damage to plaintiff - No nuisance justifying damages to plaintiff or injunction - Quia timet injunction granted - INJUNCTIONS - Quia timet injunctions DECISION : See par.46 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Thursday 18th May 2000

NO. 1119 OF 1999 WALLACE V. POWELL & ORS.

JUDGMENT

1 The plaintiff has since August 1994 been the registered proprietor of the property contained in Folio Identifier 1/596376, situated at Upper Burringbar in Northern New South Wales. Access to this property is provided by a Crown reserved road over the property in Folio Identifier 8/618883, which was, at the commencement of these proceedings, owned as to part by Laurence Powell and his former wife Gaye, and as to part (in one-quarter shares as tenants in common) by Laurence Powell and Douglas Powell (as executors of their father's will), Laurence Powell, Anne Powell, and Lance Powell. Anne Powell, the mother of Laurence, Douglas, and Lance, died after the commencement of these proceedings; and her share is now held by her executors, Laurence Powell and his sister Ruth Shoobridge. For convenience, I will refer to these various persons by their forenames. 2 There have been built on the reserved road within the land in Folio Identifier 8/618883 a number of buildings. In these proceedings, brought against the owners of that land, the plaintiff seeks orders for the removal of the buildings and damages, on the basis of public nuisance.