Appeal Outcome: Special leave dismissed with costs by the High Court, 11 March 2010 s92/2009 [2010] HCASL 37 New South Wales Court of Appeal CITATION: Weller v Bennett [2009] NSWCA 52 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 9 March 2009 JUDGMENT DATE: 17 March 2009 JUDGMENT OF: Beazley JA at 1; Ipp JA at 2; Sackville AJA at 3 DECISION: 1. Appeal dismissed. 2. Appellants to pay the respondents' costs of the appeal. CATCHWORDS: TORTS - trespass - whether findings of trial Judge that there was no trespass should be set aside CATEGORY: Principal judgment Broadbent v Ramsbotham (1856) 11 Exch 602; 156 ER 971 CASES CITED: Chasemore v Richards (1859) 7 HLC 349; 11 ER 140 Xuereb v Viola [1990] Aust Torts Reports 81-012 Hugo Weller (first appellant) Erna Weller (second appellant) PARTIES: Kenneth Raymond Macmillan Bennett (first respondent) Pamela Denise Bennett (second respondent) Gregory Colin Buckett (third respondent) FILE NUMBER(S): CA 40164 of 2008 COUNSEL: J J E Fernon SC/T J Boyd (appellants) T F Robertson SC/M B Boulton (respondents) SOLICITORS: David John Hooper (appellants) Brock Partners (respondents) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 533 of 2007 LOWER COURT JUDICIAL OFFICER: Gibb DCJ LOWER COURT DATE OF DECISION: 7 March 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40164 of 2008 BEAZLEY JA IPP JA SACKVILLE AJA 17 March 2009 HUGO WELLER & ANOR v KENNETH RAYMOND MACMILLAN BENNETT & ORS Judgment 1 BEAZLEY JA: I agree with Sackville AJA. 2 IPP JA: I agree with Sackville AJA. 3 SACKVILLE AJA: As the primary Judge observed, this litigation is essentially a dispute between neighbours, of little or no commercial significance other than the very extensive costs of the litigation itself. No doubt the origins of the dispute lie in matters other than the events in issue in the proceedings. The relevant events occurred on a single day, 16 September 2004. 4 The appellants ("Wellers") and the first and second respondents ("Bennetts") own adjoining properties at Kurrajong. The Bennetts' property is to the west of the boundary and the Wellers' to the east. The particular dispute concerns work on a small dam located at or near the boundary between the two properties. 5 The Wellers sued the Bennetts in the District Court for trespass and nuisance, claiming that the Bennetts had intruded into their property to carry out work on the dam and, in doing so, had deprived them of a water source. They joined the third respondent ("Mr Buckett"), a contractor who worked on the dam, as a defendant. The Wellers claimed $30,000 for damage to property, $50,000 for nuisance and $50,000 in exemplary damages. The Wellers failed at trial and have appealed to this Court. They no longer pursue the appeal against the second respondent (Mrs Bennett). 6 The Wellers' pleaded case was very simple. They alleged that: · they enjoyed the benefit of the small dam situated on the common boundary; · the Bennetts engaged Mr Buckett to clear that part of the dam lying on the Bennetts' land; · Mr Buckett sought and obtained permission from the Wellers to enter their land to clear that part of the dam lying on the Wellers' land and to remove and replace (at the Bennetts' cost) the fence on the boundary; · whilst carrying out the work, Mr Buckett excavated and removed from the Bennetts' land pipes, rocks and soil and filled in with soil that part of the dam lying on the Wellers' land; · these actions constituted a trespass by the respondents, the result of which was that the Wellers were denied access to the dam; and · the conduct also constituted a nuisance. 7 The respondents' case at trial was that the body of water in the dam, although not all of the crown of the dam wall, was within their land and that they had permission to undertake work carried out on the Wellers' land. 8 These apparently simple claims generated a hearing of six days, involving evidence from many lay witnesses, surveyors, valuers and experts in photogrammatic mapping. The judgment of the District Court Judge runs for 90 single spaced pages. Unfortunately, it includes findings that various witnesses in the Wellers' camp gave evidence that was consciously false. These findings were unfortunate because they were unnecessary to resolve the factual disputes between the parties and were very likely to inflame the bitterness that has given rise to the litigation. 9 The air of commercial unreality about the proceedings is illustrated by the Wellers' claim to have suffered loss by being denied a water source. Even if the Wellers had established that the respondents had trespassed onto the Wellers' land, it is difficult to see how they had sustained any material loss or damage. As Mr Fernon SC, who appeared with Mr Boyd for the Wellers, accepted, the Bennetts were entitled to carry out work on their own land that would have prevented any water from the dam reaching the Wellers' land, whether by way of overflow, leakage or otherwise: Broadbent v Ramsbotham (1856) 11 Exch 602; 156 ER 971; Chasemore v Richards (1859) 7 HLC 349; 11 ER 140; Xuereb v Viola (1990) Aust Torts Reports 81-012 (Giles J). The Bennetts could have sealed off the dam on their side of the boundary and thus prevented replenishment of the small body of water on the Wellers' side. The evidence suggests that the Bennetts did not require access to the Wellers' land to achieve this result. 10 The primary Judge made many findings of fact that led to her rejecting the Wellers' claims. The findings included the following: · in 1971, when the Bennetts subdivided the land so as to create the lot ultimately purchased by the Wellers in 1981, the boundary and boundary fence were slightly to the east of the dam reservoir and, indeed, the boundary had been deliberately drawn so as to ensure that this was so; · the earthwall dam had moved over the years as it had been degraded, mostly by the Wellers' cattle trying to gain access to the water; · over the years the fence had deteriorated but (as was common ground) it marked the boundary line; · in some years the dam wall (but not the body of water) was effectively on the Wellers' property; · although at the time the Wellers purchased their property in 1981, the reservoir was entirely within the boundary of the Bennetts' land, there were times when water from the dam inundated the Wellers' land in the vicinity of the dam, spreading out to a distance of between 1.8 and 3 metres; · the dam per se was never on the Wellers' land; · the Bennetts were motivated to undertake work on the dam because of silting and because Mr Bennett was concerned about someone from the Wellers' side riding a tractor on the dam wall; · the work on the dam took place over three days and on the first two days was confined to the Bennetts' property; · on the third day, 16 September 2004, a subcontractor to Mr Buckett, Mr Shepherd, carried out work on the crown of the dam wall and relined the dam with clay scooped from the base; · the fence was dismantled on the third day, but Mr Shepherd could see from the location of the fence that his work on relining the inside of the dam was entirely in the Bennetts' property; · the work on the crown of the dam was authorised by Mr Hugo Weller (the first appellant); · contrary to Mr Weller's evidence Mr Buckett did not ask for permission to "clean out your side of the dam", but only to enter the Wellers' land to pull down and replace the fence, and to clean the dam; · it was not necessary for Mr Buckett to enter the Wellers' land, but the permission made the job easier; · at no time did Mr Buckett undertake excavation work on the Wellers' property or remove any soil, pipes or rocks therefrom; and · the only work done by Mr Buckett or Mr Shepherd on the Wellers' property was with the Wellers' permission or, in the case of reshaping the dam wall, on the Wellers' side at the express request of Mr Weller. 11 The Wellers challenged a number of the findings made by the primary Judge. However, as each challenge was analysed in the course of argument, it became clear that there was ample evidence to support the critical findings made by her Honour. Two examples, relating to different times, illustrate the point. 12 In 1971, Mr Ward carried out fieldwork for a survey to enable the Bennetts to subdivide the property they then owned (which included both the lots now the subject of dispute). Mr Ward's evidence was that he deliberately created a "dog leg" in the boundary line to ensure that the then existing dam was wholly within the Bennetts' retained land and that the boundary would be on dry, solid ground along the crown of the dam wall. 13 Mr Fernon commenced his oral argument on the appeal by submitting that the primary Judge erred in accepting Mr Ward's evidence. Mr Fernon contended that Mr Ward's evidence was mere speculation and that her Honour's finding was in error because the respondents did not tender Mr Ward's actual survey. But Mr Ward's evidence was clearly more than speculation. He explained that, in accordance with surveying practice at the time, his notes did not refer to the dam (which had been in situ for a considerable period) precisely because it did not encroach on to the newly created lot. Mr Ward also said that his recollection, aided by reference to the field notes, was that the only reason for creating the dog leg in the boundary line was to ensure that the dam did not encroach on to the new lot created by the subdivision (which was acquired by the Wellers in 1981). 14 Mr Ward's evidence was corroborated by Mr Mansley, whose family company purchased the eastern lot from the Bennetts in 1971 and sold it to the Wellers in 1981. Mr Mansley said that before the purchase of the lot he walked with Mr Bennett along the boundary line and marked the boundary with sticks. His evidence was that the dam was to the west of the boundary line so marked. 15 On this evidence, her Honour did not err by accepting Mr Ward's evidence as establishing that in 1971 the dam was located wholly within the Bennetts' property. I should add that in the light of Mr Mansley's evidence, her Honour was also entitled to conclude that in 1981, the dam remained wholly within the boundaries of the Bennetts' property. In this connection, it is perhaps of some significance that the Wellers did not tender any survey undertaken prior to completion of the purchase of their property. As Mr Fernon acknowledged, the likelihood is that such a survey would have been prepared, consistently with usual conveyancing practice, and annexed to the contract of sale. 16 Mr Fernon also challenged her Honour's finding that the relining work on the inside of the dam, carried out by Mr Shepherd on 16 September 2004, was all undertaken on the Bennetts' land, to the west of the boundary fence. Mr Shepherd gave clear evidence to this effect in his affidavit, which annexed a plan showing the respective locations of the boundary fence and the work on the dam. Mr Shepherd was not challenged in cross-examination about his recollection on this issue. In the absence of any such challenge, her Honour was plainly entitled to accept Mr Shepherd's evidence. 17 The primary Judge's acceptance of the evidence of Mr Ward and Mr Mansley made it difficult for the Wellers to establish that the body of water enclosed by the dam (as distinct from spillage on to the Wellers' land by reason of degrading of the wall) had shifted between 1981 and 2004, so that a small part of that enclosed body of water came to be on the Wellers' land. Nonetheless, Mr Fernon attempted to make good the proposition by reference to aerial photographs taken at various times. The two photogrammatic mapping experts who interpreted the photographs in their evidence disagreed on certain of the conclusions that should be drawn. 18 As her Honour pointed out, the aerial photographs were frequently difficult to interpret, for example because of foliage obscuring the images at critical points or because it was not possible to determine the depth of water (or mud) shown in the photographs. In my opinion, there was no error in the primary Judge preferring the evidence of the respondents' expert (Mr Moriarty) to that of the Wellers' expert (Mr Bennett, no relation) on certain matters of interpretation. Moreover, the photographs themselves, which her Honour clearly examined closely, were consistent with the findings she made. 19 Her Honour was therefore entitled to conclude that, although the western edge of the crown of the dam wall had moved episodically onto the Wellers' land (in consequence of stock trampling the earthen wall), the movement had merely facilitated spillage onto the Wellers' property and had not resulted in the body of water enclosed by the walls moving beyond the boundary. 20 Once this conclusion is reached, the Wellers do not challenge her Honour's finding that any work carried out on the Wellers' property was covered by the grant of permission by Mr Hugo Weller to Mr Buckett. 21 The appeal must be dismissed. The Wellers must pay the respondents' costs of the appeal. ********** 19/03/2009 - Typographical error - Paragraph(s) 18 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.