Supreme Court New South Wales Medium Neutral Citation: Geurie Enterprises Pty Ltd v Pirrottina [2019] NSWSC 1828 Hearing dates: 9 – 10 December 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Equity Before: Darke J Decision: Injunctive relief granted and damages awarded against defendant in nuisance. Injunctive relief granted against defendant in respect of trespass. Catchwords: LAND LAW – easements – where defendant has benefit of rights of carriageway over plaintiffs' land – rural land – gate maintained at entrance to easement from public road – gate kept in a closed but not locked position – where plaintiffs run cattle on their land – where plaintiffs harvest timber on their land – where defendant locked gate for a period – where timber harvesting interrupted – where defendant commonly leaves gate open after traversing gateway – where cattle escape onto public road through open gateway – defendant's conduct held to amount to nuisance – injunctive relief granted – damages awarded in respect of pecuniary loss and time spent retrieving escaped cattle TORTS – nuisance – private nuisance – where defendant has benefit of rights of carriageway over plaintiffs' land – rural land – gate maintained at entrance to easement from public road – gate kept in a closed but not locked position – where plaintiffs run cattle on their land – where plaintiffs harvest timber on their land – where defendant locked gate for a period – where timber harvesting interrupted – where defendant commonly leaves gate open after traversing gateway – where cattle escape onto public road through open gateway – defendant's conduct held to amount to nuisance – injunctive relief granted – damages awarded in respect of pecuniary loss and time spent retrieving escaped cattle TORTS – trespass to land – where defendant found to have gone onto plaintiffs' land to take water from creek – injunctive relief granted Legislation Cited: Conveyancing Act 1919 (NSW), s 181A, Sch 8 Water Management Act 2000 (NSW), s 60E Cases Cited: Buckley v Timbury (2013) 17 BPR 32,187; [2013] NSWSC 1009 Clifford v Dove [2006] NSWSC 314 Gohl v Hender [1930] SASR 158 Pullen v Smedley [2017] NSWSC 1721 Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 Category: Principal judgment Parties: Geurie Enterprises Pty Ltd (First Plaintiff) Darrell Collett Tuting (Second Plaintiff) Carmelo Pirrottina (Defendant) Representation: Counsel: Ms A Avery-Williams (Plaintiffs) Solicitors: Parker & Kissane Solicitors (Plaintiffs) File Number(s): 2019/103331 Publication restriction: None Judgment Introduction 1. The first plaintiff and the second plaintiff (Mr Darrell Tuting) are co-owners of certain land at Sextonville, being Lot 13 in Deposited Plan 1075546 ("Lot 13"). The second plaintiff is the owner of an adjoining property to the north, being Lot 1 in Deposited Plan 552342 ("Lot 1"). Lot 1 has a frontage to a public road which bisects it, namely, Sextonville Road. 2. The defendant (Mr Carmelo or "Charlie" Pirrottina) is the owner of Lot 14 in Deposited Plan 1075546 ("Lot 14"). Lot 14 is a block that is landlocked by the surrounding Lot 13. However, Lot 14 has the benefit of easements in the nature of rights of way over both Lot 13 and Lot 1 which enable access between Lot 14 and Sextonville Road. 3. There are two central issues in these proceedings. 4. The first issue concerns the manner in which the defendant exercises his rights under the easement over Lot 1, in particular in relation to steel gates which the second plaintiff maintains in a closed but not locked position across the right of way at the Sextonville Road entrance to the lot. It is alleged that the defendant routinely leaves the gates open after passing through the gateway, with the consequence that cattle grazing on Lot 1 escape onto Sextonville Road. It is alleged that the defendant has on occasions locked the gates in either a closed or open position. It is further alleged that the defendant has on occasions caused damage to the gates and nearby fencing. The defendant does not dispute that he regularly leaves the gates open, and he does not dispute that he has caused damage to the gates, although he disputes the circumstances in which the damage occurred. He admits that on at least one occasion he locked the gates shut. It is contended by the plaintiffs that the defendant's conduct amounts to unreasonable use of the easement, and thereby a nuisance. Declaratory and injunctive relief is sought, and a claim for damages is made. 5. The second issue concerns the conduct of the defendant in taking water from the watercourse that forms a natural boundary between Lots 1 and 13, known as Doubtful Creek. The plaintiffs contend that the defendant has gone on to Lot 1 to take water from the creek and the defendant is thus guilty of trespassing. Declaratory and injunctive relief is sought accordingly. The defendant does not dispute that he has on occasions pumped water from the creek but he denies that he has trespassed upon Lot 1. The easements 1. The relevant easement over Lot 1 was created in 1994 by transfer granting easement number U207275. The grant is of a "right over carriageway" over land marked "site of proposed easement for access 50 links wide" shown on DP 552342. The site of the proposed easement is shown on the Deposited Plan as the area marked "A". 2. The easement is recorded in the Second Schedule of the certificate of title for Lot 1 as "U207275 easement for access 10.06 wide affecting the part designated 'A' in DP 552342". 3. The relevant easement over Lot 13 was created in 2004 upon the registration of a subdivision which created Lots 13 and 14 in Deposited Plan 1075546. The easement is described as a right of carriageway 10 wide. 4. The easement is recorded in the Second Schedule of the certificate of title for Lot 13 as "DP 1075546 right of carriageway 10 metre(s) wide affecting the part(s) shown so burdened in the title diagram." 5. The Second Schedule of the certificate of title for Lot 14 records both of the abovementioned easements as being appurtenant to Lot 14. 6. The easement over Lot 1 is described as a "right over carriageway" over the portion of the lot depicted on the plan. I would construe that expression to mean a right of carriageway. It seems to me that the objective intention was to create a right of that well understood character in respect of the portion of the land so identified. A bare right over a carriageway can be aptly described as a right of carriageway. Further, in the absence of words that elaborate upon the nature of the right, the objective intention should be taken to be that the grant of such a right of carriageway was on terms that accord with those set forth in Part 1 of Schedule 8 of the Conveyancing Act 1919 (NSW). That seems to me to be so notwithstanding that the expression "right of carriage way" is not employed (see s 181A(1) of the Conveyancing Act). 7. The easement over Lot 13 is described as a right of carriageway. It is clearly a right of carriageway on the terms set forth in Part 1 of Schedule 8 of the Conveyancing Act. 8. It follows from the above that Lot 14 has the benefit of easements over Lot 1 and Lot 13 in the following terms: Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof. 1. It is clear law that notwithstanding the existence of an easement, the owner of the servient tenement remains entitled to make such use of the land as the owner sees fit provided that the use does not amount to an unreasonable interference with the rights under the easement (see Pullen v Smedley [2017] NSWSC 1721 at [178]). An unreasonable interference with an easement amounts to an actionable nuisance (see Trewin v Felton (2007) 13 BPR 24,579; [2007] NSWSC 851 at [73]). 2. The defendant has not brought any Cross-Claim alleging that there has been any unreasonable interference with either of the easements. In particular, the defendant has not alleged that the keeping of a closed (but not locked) set of gates across the easement on Lot 1 near Sextonville Road constitutes an unreasonable interference. Of course, it would be difficult to maintain such an allegation in circumstances where the gates (installed in about 2005) are located on rural land at the entrance to a public road, and are intended to serve purposes including preventing cattle from straying onto the road (see Gohl v Hender [1930] SASR 158 at 161-3; Trewin Felton (supra) at [36] and [81]; Buckley v Timbury (2013) 17 BPR 32,187; [2013] NSWSC 1009 at [107]). The evidence shows that the defendant is readily able to pass along the easement areas between Lot 14 and Sextonville Road by making use of a well formed track or driveway, and a bridge over Doubtful Creek. Summary of relevant evidence in relation to the gates 1. The plaintiffs acquired Lot 13 in September 2016. On 20 December 2016 the plaintiffs entered into an agreement with Pinemal Pty Ltd whereby that company was permitted to harvest and remove certain timber from Lot 13. It seems that aspects of the manner in which Pinemal Pty Ltd operated under the agreement gave rise to complaints from the defendant. In particular, in early 2017 the defendant complained about some grading that had occurred on the driveway, and later he complained about some damage caused to the bridge over Doubtful Creek by the company's heavy trucks. Further, in July 2017 the defendant became concerned about the presence of cattle upon the right of way after the plaintiffs had entered into a cattle agistment agreement with a Mr McKenna for the agistment of about 30 cattle on Lot 13. There is evidence, which I accept, that the defendant told the second plaintiff that he was not responsible for closing any gates that prevented the cattle from straying. 2. It seems that there was to be a meeting on 24 July 2017 between the second plaintiff and the defendant to discuss the various issues that had arisen, but the meeting was cancelled by the second plaintiff. 3. On 24 July 2017 the defendant sent a text message to the second plaintiff in which he stated that unless the damage done to the bridge and the driveway was not resolved "this week" he would stop the 60 tonne trucks from doing further damage. 4. On 26 July 2017 solicitors retained by the plaintiffs (Parker & Kissane) sent a lengthy letter to the defendant. The letter included the following: We are lastly instructed that there is gate to the entrance of our client's property from the main road. Our client, being the registered owner, is permitted to enclose our client's property in whatever manner it so desires. Further, our client is not prevented at law from placing a gate on an easement area. Our client's enclosure of its property does not impede your right to traverse our client's property pursuant to the right of carriageway. As this is your only right in relation to the right of carriageway, which is not being prevented, you have no damages to complain of. You also have no right to insist that our client's property not be enclosed. We hereby put you on notice that you are required to close the access gate to our client's property. In the event that you do not close this gate, and our client incurs losses as a result of same, you will be liable to our client for those losses and we will commence proceedings against you to recover those losses. We suggest that you consider this position carefully in order to limit your exposure to liability and seek independent legal advice regarding same. … In addition to the above, you have no legal right to impede any invitee of our client from accessing our client's property. We put you on notice that should you prevent trucks, or other equipment or persons from accessing our client's property for the purposes of logging our client will incur significant financial losses. Should this occur we will commence proceedings to recover these losses from you, together with interest and costs on an indemnity basis on the basis that your actions are vexatious and entirely without merit. We again urge you to seek legal advice. 1. The second plaintiff gave evidence that on 2 August 2017 the gate at the entrance to Lot 1 was locked in an open position by way of a chain and padlock securing the gate to a barbed wire fence that runs next to the driveway. The second plaintiff took a photograph of this (see Exhibit A page 271). The defendant denied in cross-examination that he or anyone he knew had been responsible for this locking. In any event, shortly thereafter the second plaintiff decided to terminate the cattle agistment agreement with Mr McKenna due to concerns about being able to keep the cattle on the property and away from Sextonville Road. 2. On 3 August 2017 the defendant sent a letter to the plaintiffs' solicitors. The letter included the following: I have never told your client that they he could not put cattle on his property. On the 19th of July I contacted Your Client in regard to his cows preventing my family and I from entering my property on numerous occasions. I was not advised that cattle would be on the property, your client just started shutting the bottom gate. On Enquiries with the Plantation Workers, I was informed that he advised them that they needed to shut the gate I advised your client then that my family and I should not be expected to open and close 2 gates each time. I made a suggestion that he could fence both sides of the driveway and put a cattle grid at the bottom of the gate to eliminate any damage that his cattle could cause to me and my family. As there has already been an incident with my daughter and his cows. He seemed to agree to this at the time. … 10. In response to the prevention of logging trucks from entering the property- Your Client's gave permission for logging trucks and heavy machinery the use of the private timber bridge which I am half owner in. The timber bridge was damaged from recent activities from the logging companies employed by your client. An engineer's report has been supplied to all parties involved, stating recommendations and repair work that is required in order for to remain safe for all who use it. None of this has been done. … 12. The driveway where I access my property was graded by your client's employees, and rocks removed. I have been maintaining this driveway for 13 years. Evidence will be supplied upon court appearance. 13. I spoke to the manager of the harvesting company, his name is Tim Whitton. He told me that harvesting should be finished within 6 months and any damages would be repaired. At this stage it has been over 8 months, and only half the repairs have been done in regards to the driveway and minimum repair work has been carried out on the timber bridge, which no maintenance work being conducted. 14. In one section of the driveway was graded by your client's employees, of which no permission was sort and in the processes suffered damages to it. 15. After some debate with the Employees, some blue metal was put on the driveway to rectify the damaged caused by the machinery. But it was the wrong blue metal and it has made it difficult to drive up it, and I have spent hours trying to repair this. … 1. I will be seeking damages for the bridge and driveway where blue metal has yet to replaced and the proper blue metal needed for the top of the drive way. Failure to repair bridge and driveway will result in ceasing of logging operations until repairs have been done. As this poses as a safety issue for all involved. 2. $45,000 to be made out to me for the bridge repairs, which is to be paid within 14 days or Logging operations will cease. 3. Another $15,000 for the repair of the driveway. 4. $20,000 for each of my children; Miss C Pirrottina (aged 20), Mr J Pirrottina (14), Miss M Pirrottina (11), Miss N Pirrottina (8) 5. $30,000 for myself Mr C Pirrottina, for the stress and lack of sleep that was place on to me by your client. 6. I will also be seeking damages for the trees that your cattle have ringed bark along the fence line where they stick their head through the fence. 7. Furthermore, I will be seeking compensation for any damages done to my fruit trees by your client's cattle. … My family should be able to go up and down the driveway without being or the fear of being charged by a cow or bull. We shouldn't have to step in cow manure at the top gates of my property or drive through it. 1. There was further correspondence between the plaintiffs' solicitors and the defendant on 21 August 2017. The email sent by the defendant on that day included the following: Your client is not authorised to give permission to any company to use my half of the bridge without my consent. As you are aware, Damages have been caused to the bridge by your client's employees, and is continuing to be damaged. This has now become an OHS and Workcover matter. If you have read the engineer's report it is a 30 tons limit, the trucks are 60 tons. Until your client accepts full responsibility for these damages and it is repaired to meet the recommended guidelines for logging trucks to use; And the $45,000 for the bridge. I will be locking the gate as of Thursday 25th August 2017 until such time where it is determined by a Court of Law. 1. On 23 August 2017 the plaintiffs' solicitors sent a letter to the defendant in which it was stated that injunctive relief would be sought if access was prevented, including by the locking of gates. 2. Nevertheless, on about the early morning of 31 August 2017, the defendant proceeded to lock the gates at the entrance to Lot 1 from Sextonville Road. A manager employed by Pinemal Pty Ltd informed the second plaintiff that the gates had been locked and that the workers could not get in. Photographs were taken of the locked gates (see Exhibit A pages 108 and 109). The defendant does not dispute that he locked the gates, but he gave evidence that the gates were only locked for about 2 hours. 3. The second plaintiff deposed that after hearing about the locked gates he went to the property at about 7:00am and observed for himself that the gates were locked with a chain. He says that shortly after he arrived, the defendant came down to the gate and there was a conversation to the following effect: Second plaintiff: Are you going to allow access? Defendant: I own the bridge and I am not allowing it to be used until you agree to maintain it. The defendant did not deny that a conversation to that effect took place. 1. By 31 August 2017 the defendant had retained solicitors (Mitchell Playford and Radburn) to advise him. The plaintiffs' solicitors sent two letters to that firm on that day. The first was a lengthy letter that canvassed many issues. In relation to the gates it included the following: We are instructed that there is a gate at the entrance to the Land. Previously our client has advised your client that your client is required to keep that gate closed when entering and exiting the property in order to keep any livestock situated on the Land from straying from the Land. Your client failed to comply with our client's reasonable request. In fact your client bolted open this gate preventing it from being closed by any person. As a result of your client's conduct our client was required to terminate an agistment agreement which our client had in place as our client could not ensure the safety and well-being of the cattle agisted pursuant to that agreement. Our client has incurred losses as a direct result of your client's conduct in this regard. Aside from any agreement, our clients intend to use the Land for grazing purposes. Our clients are entitled to enclose the boundary of the Land as our clients see fit. Your client cannot establish that our clients' insistence that a gate to the entry of the Land be closed unreasonably interferes with your client's rights of access over the Land. This is particularly so given that your client's property is situated in a rural area in which the majority of land is used for grazing, or agricultural purposes. 1. The second letter sent by the plaintiffs' solicitors on 31 August 2017 gave notice of an intention to seek urgent injunctive relief. 2. Later on 31 August 2017 the defendant's solicitors sent a letter to the defendant. After referring to the two letters from the plaintiffs' solicitors, the defendant's solicitors confirmed their advice to the defendant to the effect that he was "not to block the access", and had no right to "block the roadway". 3. It appears from a letter sent by the defendant's solicitors to the plaintiffs' solicitors on 1 September 2017 that at about 9:20am on that day the plaintiffs' solicitors were informed by the defendant's solicitor that the gates were open and that the defendant would not obstruct the right of carriageway. I do not accept the suggestion that the letter is inaccurate in that the information was in fact provided on the morning of 31 August 2017. 4. The plaintiffs claim that the locking of the gates caused pecuniary loss in the amount of $9,460, because Pinemal Pty Ltd passed on the charges levied by a cartage contractor and a timber harvester each of whom claimed to have been prevented from working on Lot 13 on 31 August 2017 and, in the case of the timber harvester, 1 September 2017. 5. It seems that the plaintiffs did not run any cattle on Lots 1 and 13 between September 2017 and August 2018. However, in September 2018, the plaintiffs entered into a cattle agistment agreement with a Mr Yates for the agistment of about 55 cattle on Lot 13. The cattle were put onto Lot 13 on 14 September 2018. The second plaintiff gave evidence that the gate was closed at the time the cattle went on, but that afternoon the gate had been opened and the cattle escaped, I infer onto Sextonville Road. The defendant says that the cattle were in fact escaping through the fencing around the old tennis court area on Lot 1. That area is on the western side of the right of way near Sextonville Road. 6. The second plaintiff accepted that the fencing in that area was in need of repair at that time. Some repairs were effected in about October 2018, and new fencing installed in December 2018 by the second plaintiff when he returned from an overseas trip. I accept the second plaintiff's evidence that at least once the new fencing had been installed, the fences in the tennis court area were stock proof. 7. On 15 September 2018 there was another incident involving the gates. The gates had been secured in a closed position by means of thick wire that was twisted so as to create a tie. This method of closure can be seen in the photograph at Exhibit A page 212. The evidence is somewhat sketchy, but it seems that the gates were closed in that fashion by the second plaintiff's father who had discovered that the latch on the gate (or perhaps that a chain that was used to secure the gate) was missing. In any event, the defendant considered that the closing of the gates by means of the wire meant that he was effectively "locked in" and unable to go to or from his property. 8. The defendant first came upon the gates in this condition on the morning of 15 September 2018. The defendant said that he was unable to undo the wire by hand, so he went back to Lot 14 and obtained some pliers, which he used to cut the wire. The defendant further said that when he returned in the afternoon, the gate had again been secured in a closed position by wire of a similar kind. 9. This prompted the defendant to use his motor vehicle to forcibly remove one of the gates from its position. The gate was severely damaged and it could not be re-hung. The damaged gate can be seen in various photographs, including Exhibit 1 and Exhibit A pages 184 and 230. 10. In response to this, a few days later the second plaintiff and his father constructed a temporary gate (referred to as a "wire cockies gate") intended to remain in place until a new gate could be installed. This temporary gate can be seen in photographs including in Exhibit A page 232. 11. The defendant proceeded to damage this gate too. As he put it himself, he "dismantled" the temporary gate. It seems that the defendant made use of pliers in so doing. 12. On about 9 October 2018 the second plaintiff and his father hung a new gate at the entrance to Lot 1 from Sextonville Road. This gate has remained in place ever since. The second plaintiff wants the gate to be closed when the gateway is not being traversed. This is primarily so that the cattle grazing on Lots 1 and 13 do not escape onto Sextonville Road. 13. However, the evidence is clear that on many occasions since September 2018 the defendant has failed to close the gate after passing through the gateway. The second plaintiff deposed that from about that time the gate has been left open and cattle have escaped from the property at least twice daily. That evidence was not specifically denied by the defendant in his affidavit. 14. Whilst the defendant did not accept that he routinely leaves the gate open, he made admissions in the course of his cross-examination to the effect that since September 2018 he has on many occasions left the gate open (including when he goes to the bus stop that is located approximately 5km along Sextonville Road). The defendant denied the suggestion that he leaves the gate open because it is inconvenient for him to get out of his vehicle to close the gate. He said that he "shouldn't have to dodge cows". At one point the defendant suggested that he would leave the gate open "if the cows are a threat" and he said that he was not going to put his life at risk. At another point he suggested that he might leave the gate open if he is "only gone for ten minutes" and if there are no cows "loitering around the gate". 15. The overall picture that emerges from the evidence is that for whatever reason or combination of reasons, the defendant very commonly (even if not invariably) opens the gate in order to pass through the gateway, and then leaves the gate open. This conduct has continued even after the plaintiffs' solicitors sent a letter to the defendant on 21 March 2019 stating that proceedings would be commenced if he continued to leave the gate open. 16. The defendant's conduct in this respect has at least since December 2018 allowed cattle to escape from Lot 1 onto Sextonville Road. I find that cattle have in fact escaped in that fashion on a frequent basis since December 2018. The second plaintiff deposed: 61. The Gate is in close proximity to Doubtful Creek which is a natural location on Lot 13 for the cattle to gather regularly to gain access to drinking water. 62. The feed available for the cattle on Lot 1 and 13 is reducing due to the severe drought conditions. Good feed grows along the sides Sextonville Road because it is fenced off from the grazing properties and cattle cannot typically get to it to eat it. Cattle are habitual animals. Once they are aware of a location which is likely to have water, shade, or feed, they will naturally move to that location. Now that the cattle on Lot 13 are aware that they are able to leave the land and get access to decent feed along the road, they regularly move in that direction. If the Gate is open, they escape the property through the Gate. … 67. On most occasions there are approximately 10 head of cattle which escape the land. On the same occasions it has been up to 30 head of cattle. 1. The second plaintiff further deposed: 68. I have attended the land at least twice daily, and up to three or four times, to move the cattle back into Lot 1 and 13 since August 2018. At a minimum I attend the property first thing in the morning, and again before I return home at night. 69. I have received phone calls from neighbours from time to time advising me that the cattle are on the road. When this occurs I have stopped the work I am doing, travelled to the land, and mustered the cattle back onto the land. This is disruptive to my business results in a significant loss to me in terms of my time and labour. On occasions I have gone via my parents' house to pick up my father to have someone to help me do this to ensure the safety of both the cattle and drivers on the road. 70. I have various properties in the local area and I work throughout the local area on a daily basis. I do not reside on Lot 13. Any time that I have to attend the land to put the cattle in requires me to travel to the land. If I am working in one of my paddocks it is likely to take me 30 minutes to drive through the paddock to reach a main road. From there, it may take me 15 to 25 minutes to drive to the land. This is a total loss of time of at least 45 minutes each way, two times a day, being a total of 3 hours each day, not including the time it takes me to move the cattle back into the land. 71. When I attend the land to put the cattle back it usually takes me between 15 and 20 minutes to walk the cattle up the road and through the Gate. This is a total of 30 to 40 minutes per day if I attend twice. 72. I have to use my vehicle to drive the cattle along the road and muster the cattle back through the Gate. On one occasion the cattle were approximately 3km down the road at a particularly dangerous "s" bend with limited visibility. My father had to try to return the cattle to Lot 13 however in the process the cattle got dispersed into two paddocks. One of those paddocks is owned by me and has other cattle on it. The other paddock is not owned by me and has cattle on it which are owned by the owner of that paddock. Due to this, the agisted cattle got mixed with mine and the neighbour's cattle. A full muster of both paddocks was needed to be undertaken to separate these cattle. It took my father and I a total of 16 man hours to separate these cattle and return them to the land. The evidence set out above was not challenged in cross-examination. Summary of relevant evidence in relation to the claim in trespass 1. The second plaintiff deposed that he had seen the defendant on many occasions park his vehicle next to Doubtful Creek on either Lot 1 or Lot 13 and pump water from the creek into a tank on a trailer attached to the vehicle. The second plaintiff nominated five dates he could recall this occurring. However, the trespass case as ultimately presented focused upon one particular occasion in early 2019 (either 21 January or 12 March 2019). The second plaintiff recorded some video footage of the occasion (contained in Exhibit DCT-A to his first affidavit) and a particular image from the video became Exhibit D. 2. There is no dispute that Exhibit D shows the defendant in the course of taking water from Doubtful Creek in the manner described above. The question is whether the defendant was on Lot 1 at the time. 3. Exhibit D shows the defendant near Doubtful Creek in the vicinity of, but some distance to the west of, the so-called tennis court area. In his second affidavit the second plaintiff deposed: I have observed Charlie [the defendant] taking water from Doubtful Creek at different locations. None of these locations have been on land owned by Charlie, Charlie's land does not border the creek. On at least one of these occasions, Charlie was on Lot 1 (my property) on the northern bank of Doubtful Creek in the area between the tennis courts and the dip yard. There is a fence on the western side of the tennis court. The portion of Lot 1 which is between the dipyards and the tennis court is unfenced. This portion of Lot 1 is identified on DCT8 [Exhibit A page 278] of this affidavit and marked with a red line. Cattle cannot get to it because the tennis court boundary is fenced. There is no fence between Lot 1 and the Lot referred to by Charlie as Lot 7001 (Dipyard Lot) to distinguish the boundary. I am familiar with the boundary of my property and I can identify, from the landscape and proximity to features, that Charlie was on Lot 1 on this occasion. 1. It can be inferred that the incident the subject of Exhibit D is one of the occasions referred to in the affidavit as occurring "on the northern bank of Doubtful Creek in the area between the tennis courts and the dip yard." The issue is whether the defendant, as shown in Exhibit D, was then on Lot 1 as contended by the plaintiffs, or the adjoining "dip yard lot" (Lot 7001 in DP 96776 – not owned by either plaintiff) as contended by the defendant. 2. In the witness box, the second plaintiff gave evidence to the effect that the image in Exhibit D was the defendant "parked on my land on Lot 1, pumping water from Doubtful Creek." He explained that the image was taken from a position on Sextonville Road near the fence that had been constructed in December 2018 in the front of the tennis court area. That position is itself shown in the image that became Exhibit E. 3. In cross-examination, the second plaintiff maintained that Exhibit D showed that the defendant was "on my land". He rejected the suggestion that he did not know where his land ends, and stated that he did not need a surveyor to map the area for him. He continued: If you follow the fence line on the paddock across the road and if you look at the map that clearly shows that my lot goes all the way to the creek in a straight line. You will see that the fence line comes right down and runs nearly adjacent to the dip yard fence. Based on some answers given by the second plaintiff in re-examination, I take his reference to "the map" to be a reference to the plan at Exhibit A page 30. Later in his re-examination, the second plaintiff placed a mark on Exhibit A page 30 to indicate where Exhibit D showed the defendant to be. The mark was placed on Lot 1 well away from its boundary with the "dip yard lot". 1. When it was put to the second plaintiff that he could not be absolutely certain about where the boundary lay he said that he was "dead certain". 2. I accept the second plaintiff's evidence as to the location of the boundary. His understanding, which is partly based on his observation of the location of a boundary fence on the northern side of Sextonville Road, and an extrapolation of the fence line to the southern side of the road towards the creek, is likely to be correct. It is consistent with the plan in Exhibit A page 30. Moreover, the second plaintiff was able to cogently explain in cross-examination why the defendant's suggested location of the boundary (shown by a red line added to an aerial photograph at Exhibit A page 234) was incorrect. 3. I generally accept the evidence of the second plaintiff as truthful and reasonably accurate, and I prefer his evidence to that of the defendant on this issue. The defendant is likely to be wrong about the boundary between Lot 1 and the "dip yard lot". This error is perhaps partly the result of inaccurate information said to have been provided to the defendant by the local Council, including the aerial photograph at Exhibit A page 234. The defendant seemed to concede in cross-examination that the printed black lines on that photograph could be in the wrong position. 4. Viewing the evidence overall, I am satisfied that on the occasion the defendant was taking water, as shown in Exhibit D, he was on Lot 1 and thus trespassing upon the second plaintiff's land. Determination (a) Nuisance 1. In my opinion, the plaintiffs have established that in various respects the defendant has engaged in conduct in relation to the easement over Lot 1 that is unreasonable, and constitutes a nuisance. In particular, I am comfortably satisfied that the defendant's conduct since about September 2018, in commonly leaving open the gate at the Sextonville Road entrance after passing through the gateway, amounts to an actionable nuisance. The maintenance of a gate at that entrance, kept closed when the gateway is not being traversed, is a reasonable use of Lot 1 in circumstances where cattle grazing on that lot or Lot 31 might otherwise escape onto Sextonville Road. The defendant's conduct unreasonably interferes with that use and enjoyment of the land. Moreover, the conduct has caused actual injury to the second plaintiff. The second plaintiff has been required to spend considerable time and effort over a lengthy period in taking steps to retrieve cattle that have escaped onto Sextonville Road as a result of the defendant's conduct. I accept the unchallenged evidence of the second plaintiff (referred to above at [42] and [43]) in this regard. I further accept that at least since December 2018, when the new fence was installed in the tennis court area, the cattle that have escaped onto the road have done so through the gateway after it has been left open by the defendant. 2. The case bears some similarities with the circumstances that arose in Pullen v Smedley (supra). In that case, Ward CJ in Eq stated at [254]-[255]: In the present case, the Pullens known that the Smedley property is used for the grazing cattle and know that from time to time cattle may be grazing either on the right of way or in paddocks through which the right of way crosses, and they know that gates on the Smedley property are used for the purpose of the management of the cattle (and of the Smedleys' concern that the gates be kept closed to prevent cattle straying). I am of the view that opening closed gates in the exercise of their rights of access and then leaving them open on the right of way amounts to an unreasonable use by the Pullens of the right of way for them (absent a sufficient reason or excuse for leaving the gates open – such as a medical emergency or, say, if the gate were to be left open only for a very brief period of time when there were no cattle observed on the rights of way). In other words, absent pressing circumstances that on a particular occasion may give rise to a reasonable excuse for the gates to be left open, I consider that it is incumbent on the Pullens, as part of their reasonable use of the right of way, to leave the gates on the right of way as they find them when passing through (open, if the gate was open on arrival at the gate; closed, if the gate was closed on arrival at the gate). Any other conduct on their part in a rural area where the right of way crosses paddocks in which cattle are known from time to time to graze would in my view be unreasonable. 1. The defendant accepted in cross-examination that it was usual practice on rural properties to leave a gate as you find it. I would add that I do not regard the mere presence of cattle in the vicinity of the gate to amount to an excuse for the defendant to leave the gate open. On the contrary, it seems to me that the presence of cattle nearby makes it all the more important to close the gate after passing through the gateway. I do not accept the suggestions made by the defendant to the effect that cattle in the "bottleneck" in the vicinity of the gate pose a threat to his or his family's safety, or even their lives. The defendant may well feel uncomfortable around the cattle, but I think that these suggestions are significant exaggerations that are not backed up by firm evidence. The fact remains that the defendant is regularly able to get out of his vehicle and open the gates in order to pass through the gateway, even when cattle are nearby. There seems to me no reason why, having so passed through the gateway (whether into Lot 1 or on to Sextonville Road), the defendant is unable to get out of his vehicle to close the gate behind him. 2. The conduct of the defendant in commonly leaving the gate open has continued for well over 12 months. The conduct has been persisted in even after proceedings were foreshadowed in March 2019, and after the commencement of the proceedings in April 2019. The defendant has offered no undertaking to cease the conduct. It is appropriate in these circumstances that, in addition to damages in respect of the injury sustained, injunctive relief issue to restrain the continuation of the conduct. That being so, there seems to be little utility in also giving declaratory relief in relation to this aspect of the defendant's conduct. 3. The plaintiffs have also established that the defendant locked the gate shut on 31 August 2017. The evidence in this respect was clear, and essentially not disputed by the defendant. I do not accept that the gate was locked for only about 2 hours on that day, as stated by the defendant. I am nevertheless prepared to accept the defendant's evidence to the effect that the gate was in fact unlocked later on 31 August 2017, probably after obtaining some advice from his solicitors over the telephone. 4. The evidence is much less clear in relation to the locking open of the gate on 2 August 2017. The defendant denied that he was responsible for that locking. However, I think that the likelihood is that it was the defendant who locked the gate open on 2 August 2017. As shown by his letter to the plaintiffs' solicitors sent on the following day, the defendant was dissatisfied with the fact that cattle had recently been brought onto the property and that the second plaintiff "just started shutting the bottom gate". The defendant was also of the view that he should not be expected to open and close the gate. Further, the defendant's actions in September 2018, when he destroyed the gate, and dismantled the temporary wire cockies gate, reveal that he is capable of acting in a particularly rash manner. Locking the gate open would be a way to assert his belief that he should not be expected to open and close the gate. It seems to me that the most likely explanation for the locking is that it was effected by the defendant. No other plausible explanation was advanced. 5. The plaintiffs seek an injunction against the defendant to restrain him (and his employees and agents) from damaging, removing or otherwise interfering with the gate and nearby fences at the entrance to Lot 1 from Sextonville Road. Even though the defendant has not locked the gate (either open or shut) since August 2017, and has not destroyed or damaged the gate or nearby fences since September 2018, I think that an injunction is warranted. The conduct of the defendant in locking the gate was of a high-handed character, and that destruction of the gate was on any view an overreaction to difficulties encountered in undoing the wire tie that had been employed to keep the gates closed. Even if the defendant was not responsible for creating the need to employ such means to keep the gates closed (and it is not necessary to make a finding on that matter), the situation thus presented ought to have been managed by the defendant without destroying the gate. The defendant's dismantling of the wire cockies gate can similarly be seen as an overreaction to the situation presented. 6. The plaintiffs also claim damages. The claim was quantified at about $42,000. A schedule of damages was provided which identified: 1. an amount of about $5,400 for loss of agistment fees in relation to the McKenna contract; 2. an amount of $9,460, being the amount withheld by Pinemal Pty Ltd on account of contractors' charges for inability to work on 31 August 2017 and 1 September 2017 due to the locked gate; and 3. an amount of about $27,000 in respect of labour to muster and return escaped cattle. 1. As to (a), I have found that it is likely that the defendant locked the gate open on 2 August 2017. The second plaintiff gave evidence to the effect that this incident contributed to a concern about being able to keep cattle on the property and away from Sextonville Road. I accept that evidence but do not consider that the incident, which I presume was readily overcome, and was not shown to have caused the escape of any cattle, provided a sufficient justification for the decision to terminate the agistment contract. In my opinion, the loss of income that resulted from the second plaintiff's decision to terminate the contract was not truly caused by the defendant's conduct. I therefore reject this component of the claimed damages. 2. As for (b), it appears from the second plaintiff's evidence that the sum of $9,460 was withheld from him because Pinemal Pty Ltd passed on the fees charged to it by a cartage contractor and a timber harvester each of whom claimed that they were prevented from working on 31 August 2017 and (in the case of the timber harvester) 1 September 2017. I accept the second plaintiff's evidence to the effect that the contractors' trucks could not have gained access to Lot 13 other than through the gateway on Sextonville Road. The amount of $9,460 is the cost actually borne by the plaintiffs, even if it may have been possible for the timber harvester to work on 1 September 2017 as the gate had by then been unlocked. I accept the second plaintiff's evidence that he did not use the retention fund he held to off-set the amount withheld by Pinemal Pty Ltd. There was thus no "double counting" as submitted by the defendant. Moreover, whilst the re-opening of the gate later on 31 August 2017 is a matter that could have been discovered by the plaintiffs, it is noteworthy that the plaintiffs' solicitor (who was preparing to commence proceedings for injunctive relief) was not informed until about 9:20am on 1 September 2017 that the gates were open and that the defendant "would not obstruct the right of carriageway". In my view, the loss of the entire $9,460 was caused by the defendant's wrongful conduct in locking the gates early on 31 August 2017. That amount is recoverable by the second plaintiff from the defendant as damages. 3. As to (c), the amount claimed is based upon an assessment of the total number of hours spent by the second plaintiff in retrieving escaped cattle, multiplied by an hourly rate of $35.00. The hourly rate is based on some evidence of an amount recently charged for cattle mustering in the local area. 4. In my opinion, the second plaintiff is entitled to reasonable compensation in respect of the time he has spent in retrieving cattle that have escaped as a result of the defendant's failures to close the gate. The conduct of the defendant amounts to an unreasonable interference with the use and enjoyment of the second plaintiff's land, which use and enjoyment involves the grazing of cattle. The time the second plaintiff has spent retrieving escaped cattle can be seen as activity in the nature of amelioration of the direct consequences of the defendant's wrongful conduct. The claim is one that is akin to the claim that was dealt with in Clifford v Dove [2006] NSWSC 314 at [28]-[29]. 5. It could not be said that it was not reasonable for the second plaintiff to so act to retrieve the cattle, particularly as the second plaintiff would face potential liability for any damage caused to or by cattle that strayed from Lot 1. 6. It is difficult to be precise in estimating the time the second plaintiff spent retrieving escaped cattle. The second plaintiff, not surprisingly, has not kept records of the time spent. The second plaintiff deposed that at a minimum he attends at least twice daily to move cattle back into Lot 1 and Lot 31. He further deposed that if he attends twice, he usually spends 30-40 minutes per day moving the cattle. There is also evidence that on some days considerably more time may be spent. 7. Doing the best I can and accepting the defendant's contention that there should be a reduction on account of the possibility of cattle escaping prior to December 2018 by other means, I consider that in the approximate 12 month period to date, the second plaintiff is likely to have spent between about 180 and 240 hours retrieving cattle that had escaped due to the failure of the defendant to close the gate. In addition, the second plaintiff evidently spent considerable time getting to and from his places of work and Lot 1 in order to retrieve cattle. However, given that the second plaintiff lives nearby, his estimate of about 3 hours of additional travelling time each day seems excessive, especially as he gave evidence that he attends the property "first thing in the morning and again before I return home at night". I would reduce the estimate of 3 hours per day to 1.5 hours per day. On that basis, something in the order of a further 540 hours can be attributed to the time spent for the purpose of retrieving cattle in the 12 month period to date. 8. Accordingly, the total time spent by the second plaintiff retrieving cattle in that period is likely to be between approximately 720 and 780 hours. 9. I think that some reduction should also be made to the suggested hourly rate. The defendant had little opportunity to challenge the figure of $35 per hour, the documentary evidence for which was not referred to in any of the affidavits or documents in the Court Book. The hourly rate is nonetheless likely to fall within the range of reasonable rates for work of that type in the area. In order to avoid the risk of overcompensation, I think that an hourly rate of between about $25 to $30 would be appropriate. 10. On that basis, and taking 750 hours as the mid-point of 720 hours and 780 hours, the time spent by the second plaintiff could be valued at between about $18,750 and $22,500. 11. Once the $9,460 is added, a figure of between $28,210 and $31,960 is reached. These figures are necessarily broad-brush, but in my opinion they provide a sufficient basis for an award of damages to compensate for the consequences of the defendant's wrongful conduct. 12. In all the circumstances I would assess the total damages at $30,000. (b) Trespass 1. I have already found that the defendant, on the occasion depicted in Exhibit D, trespassed upon Lot 1. No damages are claimed in respect of the trespass, but declaratory and injunctive relief is sought. In circumstances where the defendant strenuously denied that he had trespassed, and gave no assurance that if he was wrong he would desist from taking water from that location in the future, I think there is a sufficient basis for an injunction to restrain the defendant from entering upon any part of Lot 1 (other than that part of Lot 1 that is the subject of easement number U207275) for any purpose including the purpose of taking water from Doubtful Creek. As submitted by the plaintiffs, the case for injunctive relief is further supported by s 60E of the Water Management Act 2000 (NSW) which provides, in effect, that an occupier of land may be liable in respect of water taken contrary to the Act unless the occupier took all reasonable steps to prevent the water being taken. I do not see a need for declaratory relief in addition to the injunction. Conclusion 1. The plaintiffs have succeeded in establishing that the defendant has in various respects committed actionable nuisances in respect of Lot 1, and on one occasion a trespass upon Lot 1. Injunctive relief will be granted to restrain future occurrences of such conduct. In addition, the defendant has been found liable to the second plaintiff in damages for the nuisances in a total amount of $30,000. 2. There seems no reason why costs should not follow the event, so the Court will order that the defendant pay the plaintiffs' costs of the proceedings. 3. The plaintiffs foreshadowed that, if successful, they may seek a gross sum costs order. They requested a period of 14 days for the bringing of such an application. Given that the Law Term is almost at an end, the Court will allow a period of 28 days for the filing of any application for a gross sum costs order. Leave is granted for a motion accordingly. ********** 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: 19 December 2019