Reported Decision : (2004) Aust Torts Reports 81-728 New South Wales Supreme Court CITATION : Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52 HEARING DATE(S) : 09/02/04 JUDGMENT DATE : 9 February 2004 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Orders made. CATCHWORDS : REAL PROPERTY [463]- Licences- Ordinarily terminate when licensor conveys the property. TORTS [189]- Trespass- Subterranean space- When trespass occurs. Bernstein v Skyviews & General Ltd [1978] QB 479 BusinessWorld Computers Pty Ltd v Australian Telecommunication Commission (1988) 82 ALR 499 Cox v Colossal Cavern Co 276 SW 540 (1925) (Ky) Edwards v Sims 24 SW (2d) 619 (1929) Ky) Edwards v Lee 96 SW (2d) 1028 (1936) (Ky) Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196 CASES CITED : Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 John Trenberth Ltd v National Wsetminster Bank Ltd (1979) 39 P & CR 104 LJP Investments Pty Ltd v Howard Chia Pty Ltd (1989) 24 NSWLR 490 Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853; [1987] 2 All ER 569 Redland Bricks Pty Ltd v Morris [1970] AC 652 Stoneman v Lyons [1974] VR 797 Terunnanse v Terunnanse [1968] AC 1086 PARTIES : Maria Liliana Di Napoli (P) New Beach Apartments Pty Ltd (D) FILE NUMBER(S) : SC 6521/03 COUNSEL : P Brereton SC and J Hammond (P) R J Brender (D) SOLICITORS : Bowen & Gerathy (P) Price & Company (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG CJ in EQ Monday 9 February 2004 6521/03 - DI NAPOLI v NEW BEACH APARTMENTS PTY LTD JUDGMENT 1 HIS HONOUR: The plaintiff filed a statement of claim on 30 December 2003, which sought a series of orders, including an order that the defendant demolish and remove forthwith certain rock anchors as they had been erected beyond the boundaries of the defendant's land and into the plaintiff's land. She also sought damages for trespass. 2 The plaintiff as at 30 December 2003 had in her possession a signed transfer from the registered proprietor, her former husband, and duly became the registered proprietor of the land at 8 Annandale Street, Darling Point on 8 January 2004. 8 Annandale Street, Darling Point adjoins 44 New Beach Road, Darling Point of which it would appear that the defendant is the registered proprietor. 3 The defendant is, by its builder, a related company, Morgan Pacific Constructions Pty Ltd, constructing a substantial building on 44 New Beach Road, Darling Point. The defendant's development consent and the plans approved by the Woollahra Municipal Council contemplate the placing of rock anchors projecting through into the plaintiff's land. 4 Prior to 31 October 2003, it might be assumed that the defendant was of the view that Mr Schwartz, the plaintiff's former husband, and registered proprietor of the land, may have consented to those rock anchors. However, on 31 October 2003 the plaintiff advised the defendant, and others, that she was the new owner of 8 Annandale Street by way of Family Law settlement and that she was not happy with those rock anchors. 5 This was replied to by the solicitors for the defendant, stating that the defendant would be carrying out its development in accordance with the council approved plans, and that if the plaintiff had any issue with her former husband it was of no concern to the builder or the developer. 6 The plaintiff renewed her protest and, notwithstanding this, somewhere about 3 or 4 November, according to the photographs PX04, the defendant inserted the rock anchors. 7 As I have said, the proceedings were commenced on 30 December 2003, which is during the court vacation. A motion was filed seeking that the matter be heard in vacation and this motion came on before O'Keefe J on 8 January 2004. His Honour declined to hear the matter in vacation. He gave a short set of reasons, which basically said that the plaintiff had known about the problem for some months and that he could not see justification in hearing the matter in vacation, particularly as there did not appear to be any immediate threat to the integrity of the plaintiff's land. He adjourned the matter to the Registrar's list on 3 February for directions and, subject to that, to the Duty Judge list today. 8 The matter came on before the Registrar on 3 February. The defendant's solicitor wrote to the plaintiff's solicitor with a suggestion that the matter should not be heard today on an interlocutory basis, which suggestion was repudiated by the plaintiff's lawyers and the matter came into my list this morning. 9 When it did so, Mr Brender of counsel appeared for the defendant. He made it clear that he had recently come into the matter and that some other member of the Bar had up until recently been acting for the defendant. Mr Brender said that there was no way in which his client was ready to deal with an application today and that his client required a three week adjournment. Mr Brereton SC who appeared for the plaintiff with Mr Hammond, said that there was no reason to grant an adjournment, that the plaintiff had been insisting on a hearing since 8 January, and that in the correspondence following the Registrar's directions, again the plaintiff stated that her intention was that the matter would proceed today. Despite the fact it was court vacation, there is no substantial reason why the defendant is not ready for an interlocutory hearing today. Further, in this sort of case, delays, even short delays, ran against the plaintiff because the defendant was, during the course of the adjournment, getting all the benefit of its trespass without necessarily becoming accountable for it. 10 It seems to me that there is no reason why the defendant could not have been ready by today. I know that the vacation extends through, this year, to 2 February, but for pleading purposes 18 January marks the end of the vacation and, in any event, there are usually sufficient barristers with the appropriate knowledge who can deal with matters during January and be ready for the first week of term. 11 Accordingly, I am not particularly impressed with Mr Brender's submission that the defendant had had no time to get ready. It had known that this dispute was in the courts from New Year's Eve and it had known that there could be a problem for a month earlier than that, at least. Secondly, I have always taken the view that when a plaintiff says, "I have an application for interim relief, please hear it", the court almost always must comply with that request. The defendant may get an adjournment if it offers an undertaking that looks after the situation in the meantime, but certainly in the absence of any offer or undertaking, then if the plaintiff wants the court to hear an interlocutory application for injunction, provided the time is there to do it, the court has little choice but to hear it. I, thus, entered into the hearing of the application at 11 o'clock this morning, having given Mr Brender half an hour to collect his thoughts, which many counsel might have had some problem, but I did not think there would be with Mr Brender. 12 The defendant had in fact filed a defence and cross claim on 6 February 2004. I need not worry too much about the cross claim, which is under the Encroachment of Building Act, and may be a complete furphy or may be a matter for the Land and Environment Court, but does not seem to impact on the real case before the court today. 13 The plaintiff's substantial case is that she is the registered proprietor of the land, or alternatively has the best right to possession of the land and that these rock anchors constitute a trespass. 14 The defendant in its defence, as filed, seems to say that the rock anchors are below the usable subterranean space of the plaintiff's land and that they are in a location too distant or the depth too great to be available to the plaintiff for the ordinary use and enjoyment of her land. That seemed to be the sole defence. 15 However, as argued today, Mr Brender put two other defences. One is that at the relevant time there was a licence, permission or agreement to install the rock anchors and that the consent given was consummated by the defendant relying on it and acting irretrievably to its detriment in installing the rock anchors, so that the consent could never be revoked or withdrawn. 16 The other defence was that the plaintiff was estopped from asserting that she was not bound by that consent. 17 So far as the original defence is concerned, it did not seem to me that it had any validity. It is certainly the case that the old adage, that the person with title to the land owns the land usque ad coelum et ad infernos, is not to be taken literally. It is also true that, especially so far as the air space above land is concerned, there have been pronouncements of courts which make it clear that flying an aircraft over a person's land is not necessarily of itself a trespass: see for instance Bernstein v Skyviews & General Ltd [1978] QB 479. 18 However, a series of cases in Kentucky involving caves which have been accepted by most of the sound academic writing on real property in this State make it clear that, at least for subterranean rights, a person has substantial control over land underneath his or her soil for a considerable depth. Cases such as Cox v Colossal Cavern Co 276 SW 540 (1925) (Ky); Edwards v Sims 24 SW (2d) 619 (1929) (Ky) and Edwards v Lee 96 SW (2d) 1028 (1936) (Ky) are in this category and deal with caves some 360 feet below the surface. In Australia, the same flavour comes through in cases such as Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 and Stoneman v Lyons [1974] VR 797, 802 (reversed on another point (1975) 133 CLR 550). 19 I do not consider that the defence that the rock anchors, which can now actually be seen in the excavation, are so far below as to be beyond the reach of trespass. 20 So far as consent is concerned, there is no suggestion that the plaintiff herself ever gave any consent. If one accepts the evidence of the defendant's witnesses that they had consent from the previous proprietor, Mr Schwartz, then as a matter of law, that consent would cease to be operative if the licence was a bare licence or a contractual licence on the conveyance of the property to the present plaintiff, which was 8 January 2004 at the latest; see Terunnanse v Terunnanse [1968] AC 1086, 1095, where Lord Devlin said just that when giving the judgment of the Privy Council in an appeal from the then Colony of Ceylon. 21 There are situations, though they are very few and far between, where a licence which is a bare licence becomes irrevocable. The usual example is where the woman consents to intercourse and then says "no" after intercourse is completed. But short of that sort of example, there are few examples in the books where the mere acting on the consent makes a bare licence, or even a contractual licence, which is a licence at will, irrevocable and a fortiori where there is no consideration. I deal with these situations in my book on The Law of Consent. 22 Mr Brender sought to overcome part of this by saying there was some consideration involving a retaining wall. However, it is hard, with respect, to see any consideration in the traditional sense in such an arrangement. 23 Then there is the third defence, that there is an estoppel. This was never pleaded. There is some suggestion in the material, particularly the affidavit of Mr Kools which was filed this afternoon, that the plaintiff may have known about some consent that her predecessor in title had given, and had done nothing about it until 31 October when it was really too late. 24 The problem for the defendant here is that that material is terribly skimpy and that there is no reason why 31 October, which was before the rock anchors were put in, was too late. It may have caused the defendant a few days, or a week or so, in designing some alternative method, but there was no reason why it should be said to be too late for the plaintiff to assert her rights. 25 So then, taking into account not only the pleaded defence, but also the foreshadowed defences, there does not appear to be much of substance in the way of granting the order which the plaintiff seeks. 26 Now, as to this, Mr Brender truly says that it is unusual for a court to grant a mandatory order on an interlocutory application, and that is certainly the usual case. The courts almost invariably refer in this connection to the decision of the House of Lord in Redland Bricks Pty Ltd v Morris [1970] AC 652. 27 However, the true position in Australia is that, notwithstanding an understandable reluctance to grant mandatory interlocutory relief, the court might grant that relief whenever it is satisfied that refusing the relief would carry a greater risk of injustice than granting it: see BusinessWorld Computers Pty Ltd v Australian Telecommunication Commission (1988) 82 ALR 499 and Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd [1981] 1 NSWLR 196, 207-8. 28 In connection with cases of trespass to land, the authorities do seem to have taken a consistent line. That is that where a person seeks to develop their land by utilising neighbouring land for their convenience without consent, such as a case of access, then the court will, almost as a matter of course, grant an injunction to restrain it. This is because people are entitled to the exclusive use of their land and it is no answer to say that that person is not suffering financial loss by the defendant's use and that it is extremely important to the defendant to be able to make use of the plaintiff's land for its purposes; see LJP Investments Pty Ltd v Howard Chia Pty Ltd (1989) 24 NSWLR 490, 496 and John Trenberth Ltd v National Westminster Bank Ltd (1979) 39 P & CR 104; see also Patel v W H Smith (Eziot) Ltd [1987] 1 WLR 853; [1987] 2 All ER 569. 29 Mr Brender says that to grant an order would be to cause danger. That submission has some basis, but it is a danger which the defendant has created and it will have to be a danger which the defendant will have to deal with when remedying the situation. 30 It seems to me that I should grant an order in favour of the plaintiff. It seems to me that I can fairly draw an inference that the defendant has not got together its evidence as quickly as it might be expected to have, not because of the vacation, but because delay in this matter is on its side. I am not convinced at this stage that it is not possible to remedy the trespass without danger within 14 days and, of course, it is always possible with an interlocutory application such as the present for the defendant to move to discharge this order, or for time to be extended to comply, provided that the defendant is making the best efforts possible to comply with the order. 31 If, of course, the court finds that the defendant is not making the best endeavours, then the defendant will be sequestrated. That is, five chartered accountants will be appointed, at perhaps $450 an hour each, to take possession of all the defendant's property and hold its property and income until the defendant complies. 32 Upon the plaintiff by her counsel giving to the court the usual undertaking as to damages, I make orders 4 and 5 in the notice of motion. 33 It is not to be a breach of this order for the defendant to enter the plaintiff's underground space to remove the rock anchors which it inserted in November 2003. 34 I also make order 2, removing the word "forthwith" and inserting "on or before 5 pm on 23 February 2004". I grant liberty to apply on two days' notice. 35 The costs of the plaintiff are to be plaintiff's costs in the cause. 36 I note that the mere retention of the rock anchors for fourteen days is not to be taken as a contempt of court. 37 The exhibits may be returned on the basis that they will be returned to the court should there be an appeal, or on any subsequent hearing. ********************** Last Modified: 02/13/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.