Medulla v Abdel Hameed [2003] NSWSC 747

New South Wales Supreme Court

CITATION : Medulla v Abdel Hameed [2003] NSWSC 747 HEARING DATE(S) : 27 February, 14 March, 1 May & 30 July 2003 JUDGMENT DATE : 30 July 2003 JURISDICTION: Equity JUDGMENT OF : Austin J DECISION : Judgment for plaintiffs for $86.50; order that the defendants pay the plaintiffs' costs

CATCHWORDS : COSTS - Equity Division - trespass to land - judgment for damages of small amount, after interlocutory injunction granted and dissolved - whether defendants should be ordered to pay plaintiffs' costs - special considerations PARTIES : Mario Medulla and Liliana Medulla (P) Medhat Abdel Hameed and Suma Abdel Hameed (D) FILE NUMBER(S) : SC 5035/02 COUNSEL : J Collins (P) In person (D) SOLICITORS : Adams Raves Marsh & Co (P)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

WEDNESDAY 30 JULY 2003

5035/02 MARIO MEDULLA & ANOR V MEDHAT ABDEL HAMEED & ANOR JUDGMENT (Ex tempore; revised 7 August 2003) 1 HIS HONOUR: In a statement of claim filed on 19 October 2002, the plaintiffs sought relief for trespass to their land at 3 Narelle Crescent, Greenacre. The Statement of the Claim alleged that, from about December 2001 to October 2002, the defendants had collected rubbish and refuse and placed it on the plaintiffs' property and, in particular, in the plaintiffs' swimming pool. Amongst other things, the Statement of Claim alleged that, by reason of that trespass, the plaintiffs suffered loss and damage, including consequential damages to goods on their property. 2 The Statement of Claim said the plaintiffs had, on repeated occasions, called on the defendants to cease the trespass but it continued, and the plaintiffs believed the defendants intended to continue the trespass. The Statement of Claim gave particulars of special damage in respect of the cost of removing the rubbish and garden refuse placed on their property, and the cost of repair or replacement of the pool filter motor. 3 There were also claims for recovery of damages for mental anguish and anxiety, for aggravated and exemplary damages, and for damages for economic loss on the basis that the defendants' conduct was alleged by the plaintiffs to have made it necessary to make arrangements to move from 3 Narelle Crescent. At the hearing today, those additional claims for damages were abandoned, and the only claims for damages relied upon were the damages of removing rubbish and garden refuse, and the cost of repair of the pool filter motor. 4 By their defence, the defendants denied having trespassed on the plaintiffs' land and specifically, they denied collecting rubbish and refuse and placing it on the plaintiffs' land and in the swimming pool. The defence then made allegations about harassment, voyeurism, verbal abuse and other conduct against the plaintiffs and contended that the defendants have suffered stress, anxiety and fear, and damage to their property. The defence said the defendants had made repeated attempts to resolve their dispute with the plaintiffs, but the harassment continued, and tree refuse from the plaintiffs' property continued to enter the defendants' property. 5 Paragraph 10 of the defence said that the defendants had on one occasion returned branches and leaves from the plaintiffs' trees back to the plaintiffs' land, with care, away from the swimming pool. The defence purported to give particulars of damages and concluded with claims for relief for damages and various kinds of injunctive orders. It appears to have been prepared without the aid of a lawyer. 6 As I explained to the second defendant, who appeared unrepresented in Court today, it is not appropriate to raise claims to substantive relief in a defence. If an application were made now for leave to file a cross-claim or, indeed, if an application had been made in a more timely fashion, I would have refused the application because the relief sought at the end of the defence would raise substantial factual matters, quite separate from the allegedly trespasses, although related to the overall intense and bitter neighbour dispute that seems to have emerged between the parties over time. I explained to the second defendant that if she wished to prosecute a claim for relief of the kind set out at the end of the defence, it would be necessary for her to take separate proceedings. In view of the fact that the plaintiffs are no longer the defendants' neighbours, presumably that claim would be for damages rather than specific relief, and would be brought in a lower Court. It follows that the matter for determination by me now is the plaintiffs' claim to relief in the statement of claim and not the various remedies asserted at the end of the defence. 7 The matter first came before the Court on 27 February 2003, at which time there was no appearance for the defendants. I was satisfied that the defendants had been properly served and I allowed the plaintiffs to enter into proof of their case, in the course of the duty list. On that day I adjourned the proceeding, part heard, for mention before me on 14 March for the purpose of fixing a time for continuation of the hearing. In the meantime, upon the plaintiffs by their counsel giving the usual undertaking as to damages, I made an order, until further order, in terms of paragraph 2 of the statement of claim. I directed the plaintiffs to notify the defendants of the adjournment, requiring that notification to make it clear that at the resumed hearing the plaintiffs would invite the Court to make final orders including an order for damages. 8 When the matter returned to me on 14 March 2003, the first defendant and his daughter appeared. The daughter told me that because of her father's limited facility in English, she wished to speak for him. After hearing what she had to say and hearing from counsel for the plaintiffs, I granted leave to the defendants to file a defence within a strict time limit, together with any supporting affidavits, and adjourned the proceeding to 1 May 2003. The defendants filed their defence and affidavits of the second defendant. When the matter returned to me on 1 May, I made an order setting it down for further hearing today. I directed the plaintiffs to file and serve evidence in reply to the defendants' affidavits on or before 21 May 2003. As the defendants did not appear on 1 May 2003 until effectively after the directions hearing had been completed, I directed the plaintiff to notify them of my orders. 9 At the hearing in March 2003, where there was an appearance for the defendants, I encouraged the parties to make further attempts to mediate their dispute and, in fact, as I shall explain, a mediation was held on 30 April 2003, but it was unsuccessful. 10 Today, when the hearing commenced, the defendants were not present, but the second defendant appeared in the Court about half an hour after the appointed time for commencement of the hearing, saying that she had been confused as to the hearing date. Later, the first defendant appeared in the Court. I granted leave to the defendants to file in Court and read parts of the second defendant's affidavit of 30 July 2003. Although they were unrepresented, I allowed them to read other evidence, making determinations as to what was and what was not relevant to the issue before me. I should add that large parts of the defendants' affidavits were judged by me to be irrelevant and rejected on that basis. The defendants' evidence included two videos, which were viewed by the Court.