Supreme Court New South Wales Medium Neutral Citation: Turvey v Crotti [2018] NSWSC 1959 Hearing dates: 4, 5 December 2018 Decision date: 18 December 2018 Jurisdiction: Equity Before: Emmett AJA Decision: See paras [56]-[57] Catchwords: NUISANCE – where the defendant obstructed the plaintiff's ability to exercise a right of way over an access road appurtenant to her property – where common ground that the defendant's conduct constituted actionable nuisance – DAMAGES – particular damage to the plaintiff as a consequence of the nuisance – damages awarded for inconvenience and stress Legislation Cited: Roads Act 1993 (NSW) Cases Cited: Bone v Seale [1975] 1 WRL 797 Jones v Dunkel (1959) 101 CLR 298 Oldham v Lawson (No 1) [1976] VR 654 Roberts v Rodier [2006] NSWSC 282 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 Category: Principal judgment Parties: Marjory Nola Turvey (Plaintiff) Kayleen Sybil Crotti (Defendant) Representation: Counsel: S Jacobs with V Misra (Plaintiff) M Galvin (Defendant) Solicitors: Owen Hodge Lawyers (Plaintiff) Dentons Australia Pty Ltd (Defendant) File Number(s): 2016/314439 Judgment Introduction 1. The defendant, Ms Kayleen Crotti, is the owner of a property that adjoins a property owned by the plaintiff, Ms Marjory Turvey. Ms Crotti's property also adjoins a private access road (the Access Road) leading to Ms Turvey's property. These proceedings are concerned with the conduct of Ms Crotti in placing and locking gates on the Access Road. The gates interfered with Ms Turvey's ability to exercise a right of way over the Access Road appurtenant to her property. It is now common ground that the conduct constituted actionable nuisance by Ms Crotti. 2. In the result, in lieu of injunctions originally sought in the proceedings, Ms Turvey accepted undertakings given on behalf of Ms Crotti to the Court that she will not erect any gates or any other structure that could prevent access to the Access Road. All that remains for the Court is Ms Turvey's claim against Ms Crotti for damages resulting from the conduct that constituted the nuisance. 3. Before dealing with the claim for damages, it is necessary to say something about Ms Turvey's right of way over the Access Road. I shall then deal with the conduct by Ms Crotti that constituted the nuisance and then the damages claimed by Ms Turvey as a consequence of the nuisance. The Access Road 1. In 1971, Ms Turvey and her late husband, Mr Geoffrey Turvey, purchased adjoining parcels of land at Curramore, New South Wales, about two miles from the town of Jamberoo. In 1974, they purchased a further adjoining parcel having an area of approximately 114 acres. Following Mr Turvey's death in 2014, Ms Turvey became the sole registered proprietor of those parcels, which now comprise lot 1001 in deposited plan 1130923 (Lot 1001) and lot 100 in deposited plan 1186698 (Lot 100). 2. The Access Road runs generally east to west from Curramore Road to the eastern boundary of Lot 1001 and affords access from Curramore Road, which is a public road, to Lot 1001 and other parcels to its north and south. It is sealed from Curramore Road to the eastern boundary of Lot 1001. 3. Lot 1001 and Lot 100 (together the Turvey Land) are part of a much larger parcel of land originally known as the Curramore Estate (the Curramore Estate), which was subdivided into 39 allotments in the 1850s. A plan of the Curramore Estate, which became deposited plan 111258 (the Curramore Estate Plan), shows the proposed subdivision and depicts several roads, including the Access Road, none of which has been dedicated as a public road. The Curramore Estate Plan depicts the Access Road continuing through the Turvey Land. 4. By deed dated 6 March 1850, registered No 756 Book 18 (the 1850 Conveyance), the Curramore Estate, comprising approximately 2,250 acres, was conveyed by Edye Manning to Thomas Taylor. The 1850 Conveyance empowered Thomas Taylor to sell parcels in the Curramore Estate and to hold the proceeds on trust for Edye Manning. 5. By conveyance dated 13 April 1853, registered No 995 Book 25 (the 1853 Conveyance), land comprising approximately 450 acres, described as Lots 1, 2, 3, 6, 11, 7 and 8 in the Curramore Estate Plan, being part of the land conveyed to Thomas Taylor by the 1850 Conveyance, was conveyed by Thomas Taylor to James Hukins. The 1853 Conveyance also conveyed: … a free and clear right of way in common with the owners, tenants and occupiers of the adjoining or contiguous lands at all times and for all purposes through, over, upon and across all the roads, streets, lanes or ways leading to or adjoining [the land thereby conveyed] as delineated on [the Curramore Estate Plan] …". 1. By conveyance dated 6 November 1854, registered No 654 Book 34 (the 1854 Conveyance), the land that became Lot 1001 was conveyed by James Hukins to John Hukins together with: "… ways, paths, passages, waters, watercourses, trees, woods and underwoods, hedges, ditches, fences, profits, privileges, lights, easements, advantages, rights, members and appurtenances whatsoever to the said land and hereditaments belonging or in any ways appertaining or usually held, occupied or enjoyed therewith". 1. Thus, it is apparent that the benefit of the "free and clear right-of-way" created by the 1853 Conveyance over the roads delineated on the Curramore Estate Plan continued as appurtenant to Lot 1001. While a qualified certificate of title originally issued by the Registrar General in respect of Lot 1001 did not record the benefit of any easement in respect of the Access Road, an edition of the certificate of title in respect of Lot 1001 dated 9 November 2016 shows a right of way appurtenant to Lot 1001 created by the 1853 Conveyance. 2. Folio identifier 1/1248239 has now been created by the Registrar General in respect of the Access Road. The land in that folio identifier is lot 1 in deposited plan 1248239, being the Access Road from Curramore Road to the eastern boundary of Lot 1001. The folio identifier shows Thomas Taylor as the registered proprietor and records the right of way created by the 1853 Conveyance. It is now common ground that, at all relevant times, Lot 1001, as dominant tenement, has had the benefit of the right-of-way created by the 1853 Conveyance over the Access Road, as servient tenement. The legal fee simple in the Access Road is vested in the successors of Thomas Taylor, whoever they may be. Acquisition of Lot 104 by Mrs Crotti 1. Ms Crotti is the owner of a lot 104 in deposited plan 880285 (Lot 104). Lot 104 adjoins Lot 1001 and abuts on the Access Road. Set out in the Appendix to these reasons is a sketch plan showing the respective locations of Lot 1001, Lot 100 and Lot 104, and the Access Road, which is described in the plan as "hatched road". The plan was attached to Mrs Turvey's summons and her statement of claim. 2. Ms Turvey contends that, prior to buying Lot 104, Ms Crotti knew that title and entitlement to the Access Road was unclear. She asserts that Ms Crotti lacked any rational basis for believing that she owned or controlled any part of the Access Road so as to justify the conduct about which Ms Turvey complains. 3. In early April 2014, Ms Crotti was contemplating the purchase of Lot 104. On 9 April 2014, she sent an email to her solicitors saying that she had read the proposed contract for the purchase of Lot 104 and that nothing in it worried her. However, her email included the following: "The road is zoned as private. Maybe in the letter you have ready to send you could ask if they are aware of any existing caveats. Otherwise I'm ready to sign, can we aim for tomorrow sometime?" Ms Crotti's solicitors responded by email later on 9 April 2014 saying, relevantly, as follows: "As to the road, where did you get that information. The access position is critical and if it is 'private' owns it and if it is not Council there needs to be access rights provided to the ppty at law and on title. Nothing is shown on the title to say that exists (if it needs to)." Ms Crotti responded as follows: "They had to find out from the council when they were sorting out the boundary lines, they have that documentation stating it is zoned as a private road ive seen it (sic). Yes there is access rights to the adjoining property which I would not see ever being a problem. The access is a continuation of the driveway into a paddock." 1. On 9 April 2014, Ms Crotti's solicitors wrote to the conveyancer acting for the vendors of Lot 104 saying that they were instructed to raise, among other things, the following: "11. We note the house number is … Curramore Road, but from the deposited plan it does not appear this property is directly connected to Curramore Road. Please clarify the status of the road off Curramore Road and provide proof of any necessary entitlements." On 10 April 2014, the vendors' conveyancer responded: "11. We are instructed that is a private subdivisional road." 1. In a letter of 10 April 2014, Ms Crotti's solicitors said to the Vendors' conveyancer: "4. We are not clear on the access road. We note it is listed on the Deposited Plan as a 'road' but it is unclear if this is a road managed by the Council. In the event it is not, please advise what the arrangements are, and between whom to manage that road. Also, as it is a 'private' work, please advise who owns it". The vendors' conveyancer replied on 11 April 2014 as follows: "4. The road is not managed by Council. In our investigations, Kiama Municipal Council and Crown Land have advised that it is not a public road it is considered a private subdivisional road. The road is to be maintained by whoever uses the road." 1. An email internal within the firm of solicitors acting for Ms Crotti dated 11 April 2014 recorded that an officer from the Engineering Department of Kiama Council telephoned about a letter written by the solicitors. The email said: "In relation to the road he said that historically the section of the road the property fronts onto is not public and not private it is a nothing section of land. When the land was subdivided around the turn of 1900s the roads were indicated on the subdivision plan but nothing was dedicated to Council or Crown Land. The company doing the subdivision went bust and nothing has progressed since. He thought the road was being maintained by the people at the end of the road but there was no obligation on them to maintain the road. He suggested we try to have LPI advise who owns the land". 1. On 11 April 2014, Ms Crotti's solicitors sent a letter to the vendors' conveyancer saying relevantly: "We note the access road is not clear in relation to title and entitlement. If your clients have any documentation/details that would be helpful, please forward same." That email was sent with the prior approval of Ms Crotti. 1. On 14 April 2014, Ms Crotti's solicitors wrote to her concerning the proposed purchase of Lot 104 noting that they had been endeavouring to research the "Access Road history". A copy of the Curramore Estate Plan was enclosed with the letter and the solicitors pointed out that "the road appears to exist back then". In relation to Ms Crotti's instructions as to who uses the Access Road, the letter said as follows: "We observe that at this time the property doesn't have clearly defined legal access to Curramore Road. We also observe that establishing who actually owns the road is going to be difficult if not impossible. We advise that the main issues are: (i) who is the owner of the road? (ii) who is responsible for the maintenance of the road? (iii) have any rights occurred through lay terms use of the road. (iv) what legal rights/obligations exist in relation to the road eg - if someone had an accident on that road. We assume an ad hoc arrangement exists but if someone has taken on some responsibility in relation to the road, in particular the property upon repaving that needs to be clarified if you might be asked to pay for something to do with the road after purchasing. We also note the issue may impact on resale as all the concerns you have will be raised by a future purchase from you and their lender. We note an application could be made to Court to require an easement (right of way) but that would require a full old system search to find out who originally owned the road and then seek an easement by prescription. We also note there are other Court options (eg easement by necessity to access Curramore Road etc). At this time we request your instructions in relation to what you have been told/observed in relation to the use and maintenance of the road. With that information we can advise you of any other potential options to those noted above, (eg all the neighbours join in one application to properly sort the matter)." 1. On 17 April 2014, Ms Crotti entered into a contract for the purchase of Lot 104 for the price of $1,400,000. The contract contained an identification survey dated 16 December 2013, which disclosed that the north-eastern corner of a metal pool room, part of the fowl yard and part of the vegetable patch stood over the northern boundary of Lot 104, encroaching on the Access Road. A search of folio identifier 104/880285 disclosed no reference to any easement appurtenant to Lot 104. A copy of deposited plan 880285 was also attached to the contract. That plan depicted the Access Road as "road 10.06 wide". The contract contained a special condition identifying the survey report and providing that Ms Crotti purchased Lot 104 and all improvements in their position and location with any encroachments disclosed. 2. Ms Turvey attaches significance to the fact that Ms Crotti was prepared to buy Lot 104 notwithstanding the doubts that existed concerning access to Curramore Road, the nearest public road. As will appear below, Ms Turvey claims as damages the costs that she incurred in investigating and confirming on her title the existence of a right of way over the Access Road appurtenant to Lot 1001 and Lot 100. She asserts that, but for the conduct of Ms Crotti about which she complains, she had no need to investigate and confirm that entitlement. The Nuisance 1. On 15 December 2014, Ms Turvey entered into an exclusive agency agreement with Campbell Holdings (NSW) Pty Ltd (the Agent), a licensed real estate agent, carrying on business under the name "Campbell's Ray White Gerringong", the principal of which is Mr Neil Campbell. The exclusive agency agreement provided for a marketing schedule leading to the auction of the Turvey Property on 18 March 2015. Marketing was to involve advertising on online sites and in the Sydney Morning Herald and Illawarra Mercury. During the period from December 2014 to March 2015, Mr Campbell visited the Turvey Property at least 12 times, using the Access Road. On the first occasion that he visited the Turvey Property, there were no gates across the Access Road. There was a bushman's gate where the Access Road joined the Turvey Property. 2. On one of the occasions when Mr Campbell attended the Turvey Property, he spoke to Ms Crotti, who asked him what was happening with the Turvey Property. He told her that it was "on the market". 3. When Mr Campbell attempted to visit the Turvey Property by means of the Access Road on 24 January 2015, he found access to the Turvey Property was blocked by padlocked gates across the Access Road. The location of the first two gates is indicated on the plan in the Appendix. A sign affixed to the first of the gates stated "TRESPASSES WILL BE PROSECUTED" and displayed a mobile telephone number. Because of the gates, Mr Campbell was unable to gain access to the Turvey Property that day. 4. It is common ground that Ms Crotti caused the gates to be erected and for the first two to be locked. It is also common ground that Ms Crotti caused the bushman's gate on the boundary of the Turvey Property to be removed and to be replaced with a more solid gate. It is unclear whether that gate was padlocked although it had a lock on it. 5. Mr Campbell has conducted many auctions of properties in the course of his business as a real estate agent. In his experience, it is essential for proposing purchasers to be able to inspect a property prior to an auction if a satisfactory price is to be achieved for the property at the auction. In his opinion, inability for inspections to take place would cause a serious diminution in the price of a property at the auction, because the number of prospective bidders would be fewer. Because of the difficulty with access caused by the gates, the proposed auction of the Turvey Property in March 2015 was cancelled. 6. On 11 February 2015, Mr Campbell wrote to Ms Crotti concerning a discussion in which Ms Crotti had said that no formal road existed and that she was entitled to refuse entry because the road formed part of her land. Mr Campbell said that Ms Turvey's solicitors, Carter and Ferguson, had told him that, from their review of various deposited plans, it appeared that the Access Road had existed since as early as 1850. 7. On 13 February 2015, Ms Crotti had a telephone conversation with Ms Deborah Langton of Carter and Ferguson when Ms Langton told her that the Access Road, which she had blocked, was "a public road and as such she was not authorised to block" Ms Turvey's access to it. Ms Langton recorded that Ms Crotti had said that, when she purchased Lot 104, she was told by her solicitors that the Access Road belonged to her and that, until such time as Carter Ferguson could provide evidence to the contrary, the Access Road would remain locked and Ms Crotti would not remove the gates. 8. On 13 February 2015, Carter Ferguson wrote to Ms Crotti, referring to the discussions with Ms Langton earlier that day. The letter referred to the road running along the northern boundary of Lot 104 "granting access to residents east of you" and said that the road in question appeared to have existed as early as 1850. A copy of the Parish Map relating to the area was enclosed with the letter, which said that a review of deposited plan 880285 clearly showed that the Access Road existed. A copy of that deposited plan was also attached to the letter. The letter then said: "A road will never cease to be a road until such time as an application is made under section 34 of the Roads Act 1993 to close the road and it is approved by the Minister and the relevant Local Government Authority. We have conducted preliminary searches and cannot find any evidence of such an application having been made for this particular road or any other road in the immediate vicinity of Lot 104. If such an application were made, it would need to be advertised and the opportunity for relevant submissions would be afforded to all interested land holders. Additionally, where a land holder seeks to erect a gate or other similar structure on a public roadway, an application must be made pursuant to section 138 of the Roads Act 1993." 1. The letter of 13 February 2015 then referred to provisions of the Roads Act 1993 (NSW) that afford entitlement to members of the public, as of right, to pass along a public road whether on foot, in a vehicle or otherwise. The letter went on to say that Ms Crotti's assertion that the Access Road somehow formed part of her land appeared to be a misunderstanding and that, even if it were not a public road, it did not form part of Lot 104. The Access Road is not in fact a public road and, in that regard, the letter of 13 February 2015 appears to have been based on a misapprehension on the part of Carter Ferguson. 2. Matters appear to have been in abeyance for some time and there is no evidence of any further communication before a letter of 4 December 2015 written by Carter Ferguson to Ms Crotti. In that letter, Carter Ferguson said that the Turvey Property was part of the original subdivision of the Curramore Estate in the mid-1800s and that the Access Road appeared to have existed as early as 1850. The letter referred to the 1853 Conveyance, which related to lots 1, 2, 3, 6, 7, 8 and 11 of the Curramore Estate, which included the Turvey Property as well as Lot 104. Enclosed with the letter of 4 December 2015 were the following: * a copy of the Parish Map; * a copy of a drawing prepared by a surveyor, Mr Stephen Thomas (Drawing 127183); * a copy of DP 880285, showing the location of Lot 104; and * a copy of DP 135867 dated 1937. 1. The letter of 4 December 2015 asserted that the Access Road had been used by Ms Turvey's predecessors in title and her invitees for over a century, openly and as of right. It said that the dispute in relation to the Access Road arose as a result of Ms Turvey listing the Turvey Property for sale with the Agent and that until that time neither Ms Crotti nor any of her predecessors had raised with Ms Turvey or her family any issues regarding access. The letter asserted that Ms Crotti had taken it upon herself to erect a number of gates along the Access Road, which were padlocked to prevent access. After referring to the conversation between Ms Langton and Ms Crotti on 13 February 2015, the letter requested Ms Crotti to remove the gates, which were marked on Drawing 127183, remove the signage erected on the gates and re-erect Ms Turvey's original bushman's style gate in operating order on the boundary of Lot 1001. Ms Crotti was afforded until 4pm on 11 January 2016 to provide an undertaking to do that in the form enclosed with the letter. 2. It appears that Ms Crotti did not respond to the letter and, on 8 January 2016, Owen Hodge Lawyers, solicitors then acting for Ms Turvey, wrote again to Ms Crotti enclosing a copy of Carter Ferguson's letter of 4 December 2015. When Ms Crotti did not respond to the letter from Owen Hodge, Owen Hodge considered that it was desirable for Ms Turvey to apply to the Registrar General to have the benefit of the right of way over the Access Road recorded on Ms Turvey's title to the Turvey Property. To that end, Mr Timothy Southwell-Keely of Owen Hodge prepared applications to the Registrar General for the benefit of the right of way granted by the 1853 Conveyance to be recorded on folio identifiers for Lot 1001 and Lot 100. 3. The proceedings were commenced on 21 October 2016. On 25 November 2016, the proceedings were listed for directions before Darke J, when his Honour made orders and gave directions by consent for the proceedings to continue on pleadings and for the filing of evidence. His Honour also noted an undertaking given to the Court by Ms Crotti, without any admission, that she would not re-erect any of the gates referred to in the summons prior to judgment in the proceedings or the dismissal of the proceedings. 4. Ms Turvey's statement of claim filed on 22 December 2016 contained allegations that may be restated as follows: * by the 1853 Conveyance certain lots in the Curramore Estate Plan were conveyed by Thomas Taylor to James Hukins together with a free and clear right of way in common with the owners, tenants and occupiers of the adjoining or contiguous lands; * the Turvey Property was conveyed to Ms Turvey and her late husband as joint tenants; * at the time of the conveyance of the Turvey Land to Ms Turvey and her late husband, the easement in the 1853 Conveyance had not been registered as appurtenant to the Turvey Property nor as burdening the Access Road. 1. In the statement of claim, Ms Turvey also alleged that, after the service of the summons, Ms Crotti: * removed or caused to be removed the three gates and had taken down or caused the posts in respect of gates 1 and 2 to be taken down; * replaced gate 3 or caused gate 3 to be replaced with a gate less secure than the bushman's style of gate that she had taken down; * proffered no undertaking on a final basis that she would not in the future re-erect the gates and their associated posts. 1. In her defence, Ms Crotti: * did not admit the allegation that certain lots in the Curramore Estate were conveyed by Thomas Taylor to James Hukins; * admitted that Lot 100 and Lot 1001 were conveyed to Ms Turvey and her late husband; * did not admit that at the time of those conveyances the easement had not been registered. Ms Crotti also asserted: * that there was no easement registered as belonging to the Turvey Property; * that there was no easement registered as burdening the Access Road; and * that there was no express reference to an easement in the 1853 Conveyance. 1. In the light of those assertions in the defence, Mr Southwell-Keely wrote to Ms Crotti's solicitors, Dentons Australia, enclosing an extract from the 1853 Conveyance together with a copy of the Curramore Estate Plan. Ms Crotti's solicitors responded saying they were merely responding to the "actual wording used" in the statement of claim and asserted that there was "no express easement" in the 1853 Conveyance. 2. On 11 May 2017, Owen Hodge wrote to Ms Crotti's solicitors asking whether Ms Crotti accepted that the rights referred to in the 1853 Conveyance constituted an easement or whether she denied that the rights created by the 1853 Conveyance constituted easement rights. Ms Crotti's solicitors did not respond to the letter 11 May 2017. As at 10 April 2018, Ms Crotti and her solicitors had given no indication that the right of way asserted by Ms Turvey was admitted. 3. On 5 September 2018, Ms Crotti's solicitors wrote to Owen Hodge saying that, in the light of the evidence that the Access Road is a private subdivisional road over which both Ms Turvey and Ms Crotti have a registered right of way, Ms Crotti confirmed that she would not re-erect any gates over the access road at any time in the future. An undertaking signed by Ms Crotti was enclosed with the letter. At a directions hearing on 23 October 2018, the Court noted the undertaking given by Ms Crotti to Ms Turvey on 5 September 2018. The Court also noted an undertaking in the same terms given to the Court by Ms Crotti. Prior to the giving of those undertakings, Ms Crotti had proffered no final undertaking not to re-erect gates or other barriers on the access road. Remedy 1. As I have indicated, in the light of the undertaking proffered to the Court on behalf of Ms Crotti, Ms Turvey no longer presses her claim for injunctive relief. Nevertheless, Ms Turvey presses her claim for damages as a result of the nuisance committed by Ms Crotti. 2. Ms Turvey claims damages under several heads. First, she claims the sum of $5,159, representing marketing costs in respect of the proposed sale of the Turvey Property that were incurred in connection with the proposed auction in 2015. As I have indicated, the auction was cancelled and the marketing expenses incurred were effectively thrown away. As I understand the position, Ms Crotti, through her counsel, accepted that Ms Turvey is entitled to damages in the sum of $5,159. 3. The second and third heads relate to the costs of regularising the right of way over the Access Road as appurtenant to Lot 1001 and Lot 100. Ms Turvey incurred costs amounting to $9,362 in having recorded on the folio identifiers in respect of Lot 1001 and Lot 100 the existence of the easement over the Access Road. In addition, she incurred costs of $3,470 to land and development consultants and $271.18 to NSW Land Registry Services in connection with the preparation of a plan of the Access Road to enable the burden of the right of way to be recorded on a folio identifier. 4. Ms Crotti contends that those costs, which were clearly incurred in relation to the regularisation and recording of the right of way, were incurred in the interests of Ms Turvey in rectifying a possible defect in her title to the Turvey Property. That is to say, it was likely that a prospective purchaser of the Turvey Property would raise a requisition in relation to access to a public road from the Turvey Property. That may have required expenditure of the amounts in question in order to satisfy the prospective purchaser that there was adequate access from a public road to the Turvey Property. 5. There was no evidence as to whether the registration of the right of way added to the value of the Turvey Property. Nor was there evidence that any uncertainty as to the status of the Access Road deleteriously affected the value of the Turvey Property. While Mr Campbell expressed the opinion in an affidavit sworn by him that a doubt about legal access to the Turvey Property would cause a great diminution in its price on the open market, if it could be sold at all, he would not agree, in cross-examination, that it would be essential to ensure that access to a property was in some sort of legal form that granted a potential purchaser right of way over an access road. He said that he did not consider that it would have been prudent at the time when he was going to list the Turvey Property, to clarify what the position was in regard to access to the property. 6. Mr Southwell-Keely, who is a very experienced conveyancer, gave evidence on behalf of Ms Turvey concerning his investigations of the status of the Access Road. He did not agree in cross-examination that, where there was no registered right of way over a roadway such as the Access Road in favour of a property proposed for sale, a vendor would ordinarily go about getting a registered right of way prior to any sale or marketing of the property. However, he agreed that it would be foremost in the mind of a prospective purchaser of a parcel of land where there is only one point of access through a number of properties to ensure that access is free and available. 7. In that regard, it is relevant that Ms Turvey and her late husband originally acquired the Turvey Property without any registered entitlement to a right of way over the Access Road. Further, Ms Turvey was proposing to sell the Turvey Property on that basis. In addition, while Ms Crotti queried the basis upon which Lot 104 had access to a public road, she completed the purchase of Lot 104 without insisting on any registered right of way. 8. I consider that it is likely that the certainty of access obtained from the registration of the right of way was in the interest of Ms Turvey. Nevertheless, it is clear enough that, but for the intervention by Ms Crotti, Ms Turvey would have continued to market the Turvey Property without recording the right of way on the title. In all of the circumstances, I consider that it would be appropriate to include as part of the damages to be awarded for the nuisance 50% of the costs in question. 9. Ms Turvey also claimed general damages under three further heads as follows: * inconvenience; * stress-related medical condition; and * aggravated damages. 1. Ms Turvey swore an affidavit on 6 February 2017 in support of her claims. Paragraph 23 of the affidavit relevantly said as follows: "The placement of the gates has left me stressed and anxious. Since the placement of the gates, the subsequent need to call off the auction, which has resulted in me having required to stay in my place … which I find more difficult to navigate as time goes by, and the uncertainty of when I can sell my property, I have broken out in shingles and post herpetic neuralgia which is ongoing. This has left my fingers and part of my arm numb for the past two years." 1. No medical evidence was tendered on behalf of Ms Turvey. I am not persuaded that it is more likely than not that the condition deposed to by Ms Turvey in paragraph 23 of her affidavit was causally connected with the nuisance committed by Ms Crotti. The assertion that the placement of the gates left Ms Turvey stressed and anxious was admitted without objection and there was no cross-examination of Ms Turvey. However, I am not persuaded of any causal connection between the shingles and post herpetic neuralgia complained of by Ms Turvey. 2. Nuisance is a wrong to property. However, even when there is no physical damage occasioned by the nuisance, the nuisance may cause annoyance, inconvenience and discomfort to the owner of the property. Damages may therefore be awarded in respect of non-pecuniary loss caused by nuisance. A Court can award a sum that is regarded as giving a reasonable compensation for annoyance, inconvenience and discomfort. What is reasonable compensation, of course, is a matter for assessment by the Court [1] . The question of aggravated damages is not straightforward and the question of whether aggravated damages can be awarded for nuisance is not settled [2] . Aggravated damages are given to compensate a plaintiff when the harm done to the plaintiff by a wrongful act was aggravated by the manner in which the act was done [3] . Where conduct by a defendant in committing nuisance is high handed or can fairly be characterised as outrageous, it may well be appropriate to award aggravated damages [4] . 3. The contract for sale signed by Ms Crotti on 17 April 2014, pursuant to which Ms Crotti acquired Lot 104, included a copy of deposited plan 880285, which showed quite clearly that the northern boundary of Lot 104 was "road 10.06 wide". It is difficult, therefore, to understand why, when Ms Crotti spoke to Ms Deborah Langton on 13 February 2015, she said that she had been told by her solicitor that the Access Road belonged to her. There is no evidence that her solicitor told her such a thing. Indeed, the evidence indicates quite the contrary. 4. Having regard to the correspondence summarised above, there can be no doubt that Ms Crotti was alive to the question of access from Lot 104 to a public road by means of the Access Road. However, Ms Crotti did not seek to justify her conduct in erecting the gates that constituted the nuisance. There is no evidence of any justification for her taking the high handed action of erecting the gates without consulting any other person, such as Ms Turvey, who may have had an interest in using the Access Road. By causing the removal of the "bushman's gate" from the boundary of Lot 1001 Ms Crotti more likely than not constituted a trespass to the Turvey Property. Once again, no explanation has been proffered on Ms Crotti's behalf for that conduct. 5. The erection of the gates coincides generally with the time when Ms Crotti became aware that Ms Turvey was proposing to sell the Turvey Property. Ms Crotti submitted through her counsel that the existence of the gates was not a real hindrance because a mobile telephone number was shown on the sign. However, there is no evidence as to whether that telephone would always be answered or how long it would be before there would be a response, by opening the gate, if the telephone was answered. Although there was no evidence of any pre-existing ill will between Ms Turvey and Ms Crotti, it is possible, in the absence of any explanation from Ms Crotti, to draw an inference that the gates were erected in order to inconvenience Ms Turvey. In so far as such an inference is capable of being drawn, it is the more easily drawn in the absence of evidence from Ms Crotti to explain her motivation [5] . 6. In all of the circumstances, I consider that an award of general damages in the sum of $5,000 would be appropriate to reflect the inconvenience and stress occasioned to Ms Turvey by the presence of the gates, the high-handed manner in which the gates were erected, without consultation, including removing Ms Turvey's bushman's gate on the boundary of the Turvey Property, and the failure by Ms Crotti to offer any explanation for her conduct. In addition, Ms Turvey is entitled to be compensated for the marketing costs of $5,159 thrown away and for the sum of $6,551.59, being 50% of the costs of $13,103.18 incurred in registering the right of way over the Access Road. Accordingly, she is entitled to judgment in the sum of $16,710.59. 7. The parties have requested that the question of costs be deferred for further argument once my conclusions have been published. In the circumstances, I will make no orders at this stage but give directions for the parties to make submissions on the question of costs in the light of the conclusion that I have reached. The parties will then be directed to bring in short minutes to reflect the result. Appendix Endnotes 1. See Bone v Seale [1975] 1 WLR 797 at 804. 2. See Roberts v Rodier [2006] NSWSC 282 at [165]. 3. See Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149. 4. See Oldham v Lawson (No 1) [1976] VR 654 at 659. 5. See Jones v Dunkel (1959) 101 CLR 298. 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. Decision last updated: 18 December 2018