Simpson v Ballina Council [2003] NSWSC 188

New South Wales Supreme Court

CITATION : Simpson v Ballina Council [2003] NSWSC 188 HEARING DATE(S) : 2, 3, 4, 5, 9, 10, 11, 12, 13 December 2002; 4, 5, 6, 7, 10, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 27, 28 February 2003 and 3 March 2003 JUDGMENT DATE : 21 March 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Plaintiffs' claim succeeds in part, fails in part, cross claim dismissed. See orders page 39.

CATCHWORDS : CONTRACT - sale of land to Council - breach of term - Council required to upgrade carriageway - whether term in contract could be varied orally - whether defence alleging oral variation to contract can be maintained - s23C and s54A Conveyancing Act 1919 - NEGLIGENCE - duty of care - obligations of construction authority and design authority - NUISANCE - damage caused to neighbouring property by rock boulders falling from batter wall - no evidence of falls for 8 years - whether permanent injunction should be granted - - NUISANCE -interference with right of way - actionable without damage - interference continuing - injunction granted - DAMAGES - economic loss - whether plaintiff was denied opportunity to derive income from farming land - whether lack of access contributed to cessation of farming Conveyancing Act 1919 s23C, s54A LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 s5 Limitation Act 1969 s14(1)(a) Pollock Law of Torts 11th Ed. 379 Perpetual Executors and Trustees Association of Australia Limited v Russell (1931) 45 CLR 146 CASES CITED : Nichols v Ely Beet Sugar Factory Limited [1936] Ch 343 Tallerman & Co Pty Ltd v Nathans Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 Colin Ernest Simpson and Mavis Elsie Claire Simpson (Plaintiffs) PARTIES : Ballina Shire Council (Defendant/Cross Claimant) Roads and Traffic Authority (Cross Defendant) FILE NUMBER(S) : SC 1813 of 1994 Mr CJ Bevan with him Mr A C M Iuliano (Plaintiffs) COUNSEL : Mr J Wilson (Defendant/Cross Claimant) Mr T Barrett (Cross Defendant) John Carmody & Co (Plaintiffs) SOLICITORS : W J Grace & Co (Defendant/Cross Claimant) Henry Davis York (Cross Defendant)