Proprietors of SP 20297 v G & S Developments Pty Limited [2008] NSWSC 257

New South Wales Supreme Court

CITATION : Proprietors of SP 20297 v G & S Developments Pty Limited [2008] NSWSC 257

HEARING DATE(S) : 18 and 19 March 2008

JUDGMENT DATE : 28 March 2008

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Judgment for the plaintiff with damages to be assessed by reference.

CATCHWORDS : TORTS - trespass to land - defendant drilling rock anchors in plaintiff's land - defence of consent - onus of consent lies with defendant - CONTRACTS - principal and agent - agent's authority must come from principal

CATEGORY : Principal judgment

CASES CITED : Dillon v Plenty (1991) 171 CLR 635 Secretary Department of Health and Community Services v JWB & SMB (Marion's case) (1992) 175 CLR 218

PARTIES : Proprietors Strata Plan 20297 (Plaintiff) G & S Developments (Defendant)

FILE NUMBER(S) : SC 2642 of 2003

COUNSEL : Mr B Debuse (Plaintiff) Mr P Dodson (Defendant)

SOLICITORS : Moloney Lawyers (Plaintiff) Curwoods Lawyers (Defendant)

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

WINDEYER J

THURSDAY 27 MARCH 2008

2642/03 THE PROPRIETORS OF STRATA PLAN 20297 V G & S DEVELOPMENTS PTY LIMITED JUDGMENT 1 The Proprietors of Strata Plan 20297, the plaintiff in this action, is the registered proprietor of the common property of the land in Strata Plan 20297 upon which is erected the building known as 19-21 Surfside Avenue Clovelly. The strata development consists of five residential home units. 2 The defendant, G & S Developments Pty Limited, was at the relevant time, the registered proprietor of the next door land being that in Folio Identifier 61/705547 known as 17 Surfside Avenue, Clovelly. The properties have a common boundary. 3 In about July 2002 the defendant company commenced construction of an apartment building at 17 Surfside Avenue, Clovelly. At the time of purchase by the defendant there was a development consent for the erection of a building with four residential units upon the land at number 17. 4 For the purpose of the construction, a number of rock anchors were inserted and drilled from the defendant's land into the land of the plaintiff. As a result of the insertion of those anchors considerable damage was occasioned to the building at 19-21 Surfside Avenue. This is admitted. The plaintiff claims in trespass, in nuisance and in negligence. This judgment relates solely to the question of liability which I ordered be tried separately from the question of damages. 5 Paragraph 7 of the statement of claim alleged: 7. A number of holes were drilled and excavation undertaken on the Plaintiff's land by the Defendant, its servants or agents without the permission or consent of the Plaintiff.