Clifford v Dove [2006] NSWSC 314

New South Wales Supreme Court

CITATION : Clifford v Dove [2006] NSWSC 314

HEARING DATE(S) : 18 and 19 April 2006

JUDGMENT DATE : 20 July 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 37

DECISION : Paragraph 37

CATCHWORDS : Damages. Assessment of damages for a claim for private nuisance. Defendant removed cattle yards over which the plaintiff had the benefit of an easement. Whether there was any betterment when cattle yards were replaced. Claim for damages for stress and anxiety. Held such a claim not available in a claim for private nuisance.

Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Limited & Anor [2001] NSWCA 313 Harbutt's 'Plasticine' Unlimited v Wayne Tank & Pump Co Limited (1971) QB 447 British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 CASES CITED : Bellgrove v Eldridge (1954) 90 CLR 613 at 618 Broken Hill City Council v Piziani and Anor 93 LGERA 113 at page 119 Ashgar v Ahmed (1995) 17 HLR 25 Drane v Evangelou [1978] 1 WLR 455 Hunter v Canary Wharf Ltd [1997] AC 655

PARTIES : Andrew Clifford and Maureen Clifford v Robyn Beverley Dove

FILE NUMBER(S) : SC 4944 of 1999

COUNSEL : Mr AA Henskens for plaintiffs Mr R Horsley for defendant

SOLICITORS : Colin Biggers & Paisley for plaintiffs Horowitz & Bilinsky for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Associate Justice Macready

Thursday 20 July 2006

4944/1999 Andrew Clifford and Maureen Clifford v Robyn Beverley Dove JUDGMENT 1 His Honour: This is the hearing of a motion filed on 16 December 2004 in which they plaintiffs seek the certification of the amount of damages that they ought to recover against the defendant pursuant to the judgment of His Honour Justice Bryson given in these proceedings on 28 October 2003. 2 The order for account contained in order 5 of the orders made on 15 December 2003 was in the following terms: "That after compliance by the defendant with order 1 or further order the matter be referred to the Master to inquire into assess and certify the amount of the damages which the plaintiffs ought to recover against the defendant." History of the proceedings 3 The plaintiffs and the defendant own adjoining properties situated in the southern tablelands of New South Wales. The properties are separated by a laneway which has an entrance to Meryla Road the main public access to the properties. 4 There are cattle yards at the point where the laneway meets the road and there is an easement giving both parties the right to use these cattle yards which are in fact situated on the defendant's property. The easement was created on the registration of the relevant deposited plan. The yards are not only useful for unloading and loading cattle from trucks on the access road but they also contain a cattle crush and other associated pieces of equipment which allowed cattle work to be carried out in the yards. 5 In 1999 the plaintiffs decided to establish a Charolais stud on their property while the defendant raised Angus cattle on her property. 6 On 24 September 1999 the defendant commenced to remove the cattle yards including the equipment such as the cattle crush. It was these activities which prompted the litigation before His Honour which was eventually heard in October 2003. In his judgement on 28 October 2003 His Honour made mandatory orders for the defendant to restore the cattle yards to their former state. He restrained the defendant from erecting certain fences and made the reference for the determination of damages to which I have referred. 7 In his judgment His Honour referred to the steps which the plaintiffs then took to erect new cattle yards on their own property at paragraph 49 in these terms "49 According to the plaintiffs' case and evidence the steps which Mr Clifford took to acquire a cattle crush and other equipment and to erect yards within Lot 6 were not steps which he planned in advance, but steps he embarked on with urgency when he saw the disruption of the cattle yards on Lot 5. He put forward the steps he had to take provide himself with other cattle yards as the basis for a claim for damages. He acted very promptly, within two or three days, to buy other equipment. This is not a suspicious circumstance; the nature of the event required immediate action if he was to be able to manage his cattle. Mr Clifford's evidence shows that he had an urgent need to have new cattle yards available because he had recently purchased cattle and their management required facilities for vaccination, pregnancy testing, possible caesarean section births and many other uses, and the second vaccination of cattle was due in the time after the removal of the cattle yards." 8 His Honour then went on to deal with the fact that it would have been imprudent for the plaintiffs to reinstate the yards within the easement. He indicated the way in which the matters occurred in paragraph 53 in these terms "53 In my finding the defendant's account, in which the equipment in the cattle yards was dismantled and the cattle yards lost most of their usefulness in a course of events which Mr Clifford had agreed to and had indeed initiated for purposes of his own, is entirely untrue. In my finding the events began when the defendant signalled her intention to remove equipment, not at all in a clear way, by her message of 24 September and went ahead immediately, without giving the plaintiffs any opportunity to respond to the message. In the message she suggested that a number of the posts in the cattle yard were rotten in the lower sections or close to the end of their life. Photographs taken by Mr Clifford within a few days of the damage, which are at pp34 to 46 of his affidavit, show that the defendant was quite wrong to assert that the posts were rotten in the lower sections or close to the end of their life. If any posts had been in that situation, that would not justify what was done. The photographs show that the yards and the equipment were in generally good and sound condition and that a number of sound posts were either dragged out of the ground with their surrounding concrete bases or chain-sawed off leaving stumps of posts which obviously would have been serviceable for years. The concrete pad on which the cattle crush formerly stood, and to which it was bolted, was torn up. The cattle crush and calf cradle lay unfixed at the yards for some weeks, and then they were removed and fixed in position for use elsewhere on the defendant's land. There was no response to the demand that the defendant restore the area to its original condition. Some gates and fencing and some other equipment remained, but the utility of the cattle yards referred to in the easement was very greatly reduced. The working equipment which gave the yards their principal utility was vandalously destroyed so that the defendant could use the equipment elsewhere, in entire disregard of the easement and the rights over the cattle yards which it conferred on the plaintiffs." 9 After referring to the defendant's evidence His Honour went on to refer to the plaintiffs' response in paragraph 55 in the following terms: "55 On behalf of the defendant it was contended to the effect that the fact that the plaintiffs purchased equipment and constructed cattle yards on their own property in some way bears out the defendant's contention that the work was done with the consent of the plaintiffs. In my finding however it has no such tendency. It was also contended to the effect that the fact that the plaintiffs have now constructed cattle yards and purchased appropriate equipment has the effect that they have no real need for the cattle yards to which the easement relates. As the plaintiffs, as I have found, furnished themselves with other cattle yards as a response to the defendant's destructive conduct, this is a travesty of their position. It also fails to acknowledge their rights; they are entitled to the easement, including the right to use the cattle yards located at the Meryla Road entrance in common with the owner of Lot 5, whether or not they own other cattle yards, or if they own a hundred others. The removal of equipment from the cattle yards unreasonably impeded the exercise of their right to use the cattle yards, was plainly a nuisance, and calls for a remedy which will be effectual in relation to the nature of their rights." 10 His Honour then considered whether damages should be the sole remedy and referred to the defendant having acted in a highhanded way showing a disregard of the plaintiffs' interests. He concluded as to what should be the remedy in paragraph 58 in these terms: "58 In my judgment the just remedy is a mandatory order requiring the defendant to restore the cattle yards, including the equipment, to the condition in which they should be and an award of damages to be assessed after they have been restored. Otherwise the plaintiffs' rights will not be protected effectively. The cost in money and the pains and trouble expended by the plaintiffs in providing themselves with other cattle yards are elements in the assessment of damages, although the assessment will be complex as the plaintiffs have the benefit of the enhanced value to Lot 6 produced by constructing their other cattle yards. Embarking on the assessment of damages will involve an exercise of some complexity and some obscurity, on facts which cannot be fully known until the yards have been put back in their proper order." 11 The plaintiffs made the following three claims in respect of damages which they have suffered: