Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214

Supreme Court of Victoria|2000-05-25|Before: Gillard J

Costs of proceeding - trial on affidavit - nuisance claim - after institution defendants take steps to ameliorate nuisance - plaintiff decides not to proceed - had prospects of

The plaintiff in the proceeding instituted by writ, claimed declaratory and injunctive relief and in the alternative damages for nuisance and common law negligence arising out of golf balls landing on land owned by it.

It sought declaratory relief but its primary relief was for an injunction restraining the defendants from permitting the nuisance and/or negligent conduct to continue. Its claim for damages was in the alternative.

It is noted that the injunctive relief required steps be taken by the defendants as were necessary, to prevent the entry of golf balls onto the land of the plaintiff. The plaintiff did not seek an order preventing golf being played.

As a result of certain steps taken by the defendants after the issue of the writ, the plaintiff decided not to proceed with the claim. Not surprisingly, the defendants did not object to this course but the parties could not agree on the question of costs of the proceeding.

In a nutshell, the plaintiff seeks its costs of the proceeding because it contends it has by prosecuting its claim, been successful. The defendants for their part claim costs in relation to certain issues and contend that the most appropriate order in relation to the balance of the issues is that each party should bear its own costs.

The plaintiff, Champagne View Pty Ltd ("the plaintiff") is a developer investment company.

In September 1997, the plaintiff acquired some 60 lots of subdivided land and a large area designated for the erection of 17 condominiums at a golfing resort known as the Cape Schanck Resort, Boneo Road, Cape Schanck. Many of the lots acquired by the plaintiff are located on the side and around various holes at the Cape Schanck Golf Course.

In November 1997, the plaintiff commenced the construction of five units on the condominium land located to the west of the tee and fairway of the 15th hole.

The first defendant, Shearwater Resort Management Pty Ltd ("Shearwater Resort") is a wholly owned subsidiary of the second defendant, The Club Cape Schanck Resort Co Ltd ("TCCSR"). The second defendant is the owner of the Cape Schanck Golf Course. TCCSR is a registered foreign company, and is incorporated in Japan. Since December 1993 Shearwater Resort has been the occupier and manager of the Cape Schanck Resort Golf Course which is owned by its parent company.

In 1985 the golf course and resort were developed by Cape Country Club Pty Ltd which sold the land and resort to TCCSR in 1991. However, the Cape Country Club Pty Ltd retained the residential land and in 1993 built six villa units known as the Cape Fairway Villas next to the second hole. The company sold four units and retained two. The company sold the two units and the balance of the residential land to the plaintiff in September 1997.

The construction of the first five units located on Casuarina Drive by the plaintiff commenced on 10 November 1997 and was completed on 30 June 1998. The five units are located to the west of the 15th hole. The 15th hole is a dog leg to the left. Right hand golfers hitting off from the tee seek to drive the golf ball to their left in a straight line to the green. The units are to the left of the fairway looking towards the green. During the course of the construction many golfers hit balls into the area of the units. In August 1998 a firm of solicitors on behalf of the plaintiff wrote to the Cape Schanck Resort and requested that steps to be taken to rectify problems of golf balls intruding into the units' area and also objecting to golfers entering the property to retrieve their ball. Another seven units were built on the same area subsequently.

The plaintiff also has an interest in two units built on the south-eastern side of the second hole.

After the plaintiff raised the problems of errant golf balls and golfers trespassing onto their property, discussions took place between the various parties but nothing was resolved.

On 13 April 1999 the plaintiff issued its writ against the two defendants.

It pleaded three causes of action, namely, nuisance, common law negligence, and a cause of action described as "breach of the general duty of care owed by the first defendant or alternatively the second defendant to the plaintiff".

Mr Morris QC who appeared with Mr Appudurai of counsel for the plaintiff conceded that the latter cause of action added nothing to the other two causes of action. If there is such a cause of action, it can be ignored.

The statement of claim alleged that the plaintiff owned two of the six units which comprise the Cape Fairway Villas, which are situated near the second hole and "Lots 21 to 33, 47 to 54 and 61 to 90 in Casuarina Drive which are set out on a plan of sub-division No. 209658T".

Lots 21 to 33 are adjacent to hole 17 and some are also adjacent to hole 15, Lots 47 to 54 are to the west of the tee of hole 15, and Lots 61 to 90 run along the side of holes 10 and 11. In particulars sub-joined to a number of paragraphs of the statement of claim, the plaintiff alleged that there was risk of injury to persons and damage to buildings, vehicles and other property on the plaintiff's land "which abut, or are proximate to, the fairways of the 2nd and 10th to 18th holes respectively of the golf course." (Emphasis added.)

It is important to note the relief sought in the statement of claim.

First the plaintiff claimed a declaration that the defendants were not entitled to operate the golf course "and in particular the 2nd and 10th to 18th holes, in such a manner as to facilitate the entry onto the plaintiff's land" of golf balls and of golf carts driven by golfers.

Injunctions were sought in terms that the defendants take such steps as are necessary to prevent entry onto the plaintiff's land of golf balls and golf carts and that the defendants be restrained from permitting the use by golfers of the "2nd and 10th to 18th holes of the golf course" until steps are taken to prevent entry onto the plaintiff's land.

In the alternative the plaintiff claimed damages.

In their defence, delivered 8 June 1999, the defendants put the plaintiff to its proof, and alleged a number of positive defences. They allege contributory negligence and further asserted that prior to the issue of the proceedings they had taken reasonable measures in relation to the second fairway to avoid the intrusion of golf balls to the Cape Fairway Villas located near the second hole and hence there was no actionable nuisance in respect to that land.

The defendants raised an important matter with respect to the claim for injunctive relief. It was asserted that the plaintiff was not entitled to injunctive relief because it acquired the land with full knowledge of the risks of golf balls landing from time to time on their land and commenced the construction of the residential units with that knowledge.

On the day of the issue of the writ, namely, 13 April 1999, the plaintiff also issued a summons which on the face of it claims permanent injunctions in accordance with the relief clause in the statement of claim.

On the return of the summons on 7 May 1999 the parties consented to minutes of orders relating to directions with respect to the trial of the proceeding. The orders prescribed trial on affidavit.

On that day a document called a Statement of Intention was signed by counsel. Mr Morris QC informed the court that the concept of a Statement of Intention was his idea and its object was to promote discussions between the parties to attempt to settle the differences and to encourage steps to be taken by the defendants to overcome the problems caused to the plaintiff's land. In paragraph 2 it provided -

"(2) To consider practical means which might be adopted:

(a) to reduce the number of occasions upon which golf balls pass from the Cape Schanck Golf Course onto the plaintiff's land or any hazard which they represent; and

(b) to prevent or substantially reduce any trespass of golfers (with or without golf carts) on the plaintiff's land;

(c) and not later than one month before the trial date of this action, the defendants will inform the plaintiff of any proposals which can be adopted by the parties in relation thereto, and the costs of any such proposals."

On 15 July 1999 the plaintiff delivered a reply. In essence the plaintiff pleaded that the development of the land owned by it was in accordance with planning schemes and permits.

On 10 September 1999 the defendants' solicitors gave notice of their intention to carry out remedial measures to the 10th and 15th fairways, particularly by the erection of large net fences and by the planting of suitable trees. The cost was estimated at $10,000 per hole, making a total of $20,000.

In the meantime the proceeding had been fixed for trial on 5 October 1999. Affidavits had been sworn by a large number of deponents for the parties.

Shortly before the trial date the defendants delivered an amended defence on 1 October. This defence raised the question of the right of the plaintiff to bring the proceeding basically on the ground that the plaintiff was selling the units in question and accordingly had no interest or would have no interest in the near future in the land which it was alleged was subject to the nuisance.

On 5 October 1999 the hearing was adjourned by consent to enable the parties to negotiate.

At that time, the plaintiff was contending that the steps taken were not adequate, observed that nothing had been done in respect of the second hole and maintained it was entitled to the relief sought in respect to holes numbered 2 and 10 to 18 inclusive.

The plaintiff had put a proposal to minimise the nuisance at the 15th hole.

On 22 October 1999 the defendants' solicitors gave notice that they would perform works to realign the 15th tee and other works. The works were carried out between that date and mid December and had the effect of re-arranging and lowering the tee on the 15th hole and creating embankments of earth in front of the tees the object being to require the players to drive straight and to the east of the units which were on the west of the fairway. This created a tunnel or chute effect in front of the tee. It was proposed that if the steps were not completely effective, a high fence would also be installed. The works were to cost $10,000 not including the fence. The defendants disagreed with the more elaborate proposals put forward by the plaintiff. The plaintiff did not respond to the defendants' proposal and the latter went ahead with the works.

A directions hearing took place before the Listing Master on 15 December 1999. The solicitor for the plaintiff stated that as a result of the remedial works and negotiations the dispute was substantially settled. It was said that as a result of the remedial work carried out on the 15th fairway there were really no other matters of complaint but it was pointed out that there was a dispute between the parties in relation to costs. As a result the Listing Master fixed the matter so that the costs dispute could be determined.

On 4 February 2000 the defendants' solicitors sent a letter to the plaintiff's solicitor making an open offer for costs which was expressed in this way -

"As to costs, we are instructed to offer that each party bear their own costs and otherwise the proceeding be dismissed."

The plaintiff did not accept the offer and the costs' issues were debated before me.

The court has a very wide discretion in respect to order for costs.

"(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the court, including the administration of estates and trusts, is in the discretion of the court and the court has full power to determine by whom and to what extent the costs are to be paid."

The wide power given to the court is subject, inter alia, to the Rules of Court. The discretion is to be exercised in accordance with Order 63 of the Rules of Court. It is a discretion which must be exercised judicially, that is, taking into account all relevant matters and making a decision which is fair and just to the parties.

The Rules and section are silent as to what criteria should be taken into account in an application such as the present.

The discretion is truly in its terms, unconditional and unfettered. However, in a proceeding such as the present where the plaintiff does not wish to proceed because of events which have occurred since the issue of the writ and in cases where parties compromise the issues but cannot agree on costs the courts have laid down rules to guide them in the normal exercise of the discretion. However, it must be emphasised that the rules are merely guidelines and that in the final determination the discretion must be exercised in accordance with the circumstances of the particular case.

The starting point in this area is the judgment of Hill J in Australian Securities Commission v Aust-Home Investments Limited [1993] FCA 585; (1993) 44 FCR 194. His Honour considered a number of authorities and summarised propositions relevant to the dispute in the present matter as follows -

"(1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order. (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial. This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them. (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371.

These propositions, as his Honour called them, are a convenient starting point in an application such as the present and have been often quoted and applied by the courts.

In Gribbles Pathology Pty Ltd v Health Insurance Commission [1997] FCA 1414; (1997) 80 FCR 284, Finkelstein J, after quoting Hill J's propositions, said this at p.287 -

"For my own part I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances. To do otherwise would require some prediction of the outcome of the case. It seems to me that the third proposition stated by Hill J was intended to cover the situation where the court was in fact able to form a clear view about the merits of the case without a trial. So, if a claim is patently hopeless that would be a good reason to make an order for costs against the claimant. Likewise if a defence was bound to fail that would be a good reason for awarding costs in favour of the claimant. But I venture to suggest that there would be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party."

I would not go as far as his Honour has, in stating that any other order other than each party bear its own costs can only be made "in special circumstances". Each case must depend upon its own circumstances. As a general proposition if there is no other material before the court other than the pleadings then it would be extremely difficult to make any order other than each party bear its own costs.

However, there may be circumstances which justify an order being made in favour of a party.

Even where there are only pleadings before the court, evidence may be adduced which establishes with some degree of certainty the likely outcome of the trial. Of course the evidence must be confined and not venture into areas of disputed fact. But the circumstances may be such that in a brief and succinct way a court can draw a conclusion as to the likely outcome. In the present matter the court has the benefit of not only the pleadings but also a considerable number of affidavits supporting and contesting the plaintiff's case. Much of the evidence is uncontestable.

It is very difficult in most cases where the evidence is on affidavits prepared by lawyers and untested by any cross-examination that a court could possibly make any assessment of the strengths or weaknesses of the respective cases. On the other hand there are cases where it is possible for the court based upon the material and in particular contemporaneous documents to make an assessment of the strength or weakness of the opposing cases.

The approach of the court to an application such as the present was discussed by McHugh J in the case of Re The Minister for Immigration and Ethnic Affairs Ex parte Lai Quin [1997] HCA 6; (1997) 186 CLR 622.

"Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. Where there has been no hearing on the merits, however, a court is necessarily deprived of the fact that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action." (Emphases added.)

"Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ... but such cases are likely to be rare." The critical question in this case then is whether or not the prosecutrix acted reasonably in bringing these proceeding and whether the respondents acted so unreasonably in not informing the prosecutor that an application to review the decision to refuse a visa was being considered that it would be proper for the Minister to pay the whole or part of the cost of the proceedings." (Emphasis added.)

His Honour at page 626 indicated that it was his view that it was most likely that the prosecutrix would have failed in her proceeding but then went on to say this:

"However, as I have said it is not the function of a court on a costs application - in most cases at all events - to make a prediction as to the outcome of a hypothetical case. It is enough that an applicant has acted reasonably."

However as his Honour pointed out it is also a question of looking at the reasonableness of the conduct of the other side and in the end he concluded that the Minister had acted reasonably and accordingly ordered that each party should bear its own costs.

There have been cases where an order has been made in favour of a party. By way of example see South East Queensland Electricity Board v Australian Telecommunications Commission, unreported, decision of Pincus J of the Federal Court delivered 10 February 1989; Scott v Tuff-Kote (Australia) Pty Ltd (1975) 1 NSWLR 537; Garwolin Nominees Pty Ltd v Statewide Building Society [1984] VicRp 38; (1984) VR 469 and Computer Machinery Co Ltd v Drescher (1983) 1 WLR 1379.

However it must be emphasised when considering the present issues that the court is exercising a discretionary power to order costs where it is just and fair to do so, and that each of the cases mentioned depend upon their own particular circumstances.

In their submissions, counsel for the parties were content to argue their case on the guidelines stated by Hill J and each side concentrated on the question of the reasonableness of the conduct of both parties in the course of the litigation. However in my opinion there are two enquiries for consideration and determination. First, in an appropriate case to consider and if possible determine the likely outcome of the proceeding if it had continued through to judgment. The second is whether the plaintiff acted reasonably in instituting the proceeding and whether the defendant acted reasonably in defending it.

The first enquiry may be very short. The court may not be able to make any determination as to the likely outcome especially where the court only has the pleadings or in cases where there is some evidence it is disputed or involves difficult questions of law. But there will be circumstances where the court may make an assessment of the outcome of the proceeding if it had gone through to judgment.

Although the plaintiff has pleaded nuisance and negligence, because of the undisputed evidence that golf balls, in the course of each day regularly landed on the plaintiff's land, in my opinion this is a nuisance case rather than a negligence case. The plaintiff sought as its primary relief an injunction and accordingly in my view the claim must be in nuisance. It would be a unique case to obtain an injunction to restrain an act of negligence. Indeed, Mr Morris QC proceeded on that basis.

I refer to the discussion in Miller v Jackson [1977] EWCA Civ 6; [1977] 1 QB 966 at 979-980. Compare with the famous case of Bolton v Stone [1951] UKHL 2; [1951] AC 850 where the claim was brought in negligence when a cricket ball was stuck out of a ground and hit the plaintiff causing her personal injury. But this was an isolated incident of a ball being hit out of the ground.

The plaintiff alleged that the defendants' conduct permitting the playing of golf on their golf course have created a nuisance to the owners of the real estate located adjacent to holes 2 and 10 to 18 inclusive.

Despite that allegation it is apparent from not only the evidence before the court but also the submissions made by counsel that the complaint relates to the playing of golf at holes numbered 2, 10 and 15. However the evidence establishes that the worst problems associated with playing of golf at the second hole were overcome by steps taken by the defendants prior to the issue of the writ and it was common ground between the parties that the plaintiff's claim could not have succeeded in the relation to the playing of golf at the second hole.

In order to establish a cause of action in private nuisance it is necessary to show that there has been an unreasonable interference by the defendant with the use and enjoyment of land in the possession of the plaintiff. It is not necessary to prove negligence but fault of some kind is necessary.

But it does not follow that an occupier who causes damage to the neighbouring landowner is necessarily liable.

"An occupier may make in many ways a use of his land which causes damage to the neighbouring landowners and yet be free from liability... a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society." Per Lord Wright in Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880 at 903.

It can be seen that the focus in an action for private nuisance is on the question whether the occupier of land has made unreasonable use of that land causing interference to the user of nearby land and this will depend upon many factors including the degree of interference with use and enjoyment of the other landowner, locality, time and duration and the normal and ordinary use of the land.

There is no doubt that at all relevant times and at present the plaintiff had and has sufficient interest in the land located by the side of the 15th fairway to maintain an action for nuisance and the defendants were responsible for the activities on their land which could amount to a nuisance.

In my opinion on the affidavit evidence, there is substantial undisputed evidence that golfers often struck golf balls into the plaintiff's land abutting the fifteenth fairway. In my opinion the probabilities were high that the plaintiff would have proven that the activity constituted a nuisance to it.

There have been a number of cases where the playing of golf with many golf balls trespassing onto adjoining property has been held a nuisance.

See Castle v St Augustine's Links 1922 38 TLR 615, Lester-Travers v City of Frankston [1970] VicRp 1; [1970] VR 2, Pringle v Ryde-Parramatta Golf Club, unreported decision of Helsham CJ, delivered 23 February 1978 and more recently the unreported New South Wales Court of Appeal decision of Campbelltown Golf Club Limited v Winton delivered on 23 June 1998.

It is well established that it is no defence to an action for nuisance that the plaintiff willingly came to occupy a property knowing that there was a nuisance or a potential for a nuisance. "The doctrine of coming to a nuisance may be looked on as exploded. A man is not precluded from maintaining an action or a suit by the fact that the business which creates the nuisance had been carried on before he took possession." - see Kerr on Injunctions, 2nd ed. at p.208. See also the Law of Torts by Dr Fleming, 9th ed. at p.491.

But the important issue here concerns the obligations of the defendants in the operation and conduct of their golf course. They do not have superior rights to adjoining landowners merely because they were there first and conducting a golf course.

In the Campbelltown Golf Club case a submission was put that the plaintiffs had built their houses with full knowledge of the existence of the golf course and further, that their houses were built on land included in a subdivision in which the golf course was designed as the focal point.

That latter observation applies to the present case.

"The problem with the appellant's submission is that it endeavours to relegate houses built on land in the subdivision to an inferior position to that occupied by the golf course. In the appellant's submission, the golf course was the focal point. If it created a problem for residents, that was something which the residents had to tolerate. That is not the law. What was required was that the golf course should so adjust its activities as not to interfere unreasonably with the peaceable enjoyment by residents of their land. At the same time, the residents, bordering as they did a golf course, had to accept the fact that the game of golf was going to be played on land adjoining their properties and that it could be expected that from time to time some golf balls might come on to their land. But what they were not bound to accept was the situation such as was suffered by the respondents in which their property was peppered with golf balls on a daily basis thus posing a threat, not only to the respondents' property but also to their physical safety. The golf course was obliged so as to construct the hole as to divert balls hit normally away from their property. This could be done by re-siting the direction of the hole or by appropriate screens, whether natural or artificial, or a combination of both as indeed has apparently happened." (Emphases added.)

The words of his Honour are apposite in the present matter.

The land acquired by the plaintiff formed part of a subdivision which had been prepared with the object of having houses located in areas between holes. This object represented a benefit to the owners of the houses because of the view, location and the fact that they could play golf at a point very near to their residence. But it also represented a distinct advantage and benefit to those who operated the golf course, namely, the presence of persons who would utilise the facilities of the golf course, including the bar and eating facilities. It was clearly contemplated and envisaged by both the golf course owner and manager and prospective purchasers that each would gain by the location of residences within the golf course.

The second defendant TCCSR, when it purchased the golf course and the land also purchased the residential land which it then transferred back to the vendor. At all times it was aware that it was expected and contemplated that houses would be built at, near and around the fairways.

In my opinion the plaintiff would have established nuisance against the defendants.

In my opinion the main contest at trial would have been the question of relief.

Would the plaintiff have successfully obtained an injunction at trial? As the plaintiff does not now seek damages, the issue is whether it would have obtained an injunction?

In considering this question it must be borne in mind that the court does have power in appropriate circumstances to grant an injunction in a mandatory form.

"Injunctions to restrain nuisance to a dwelling house will, if required by the circumstances of the case, be in the mandatory form." - per Kerr op cit at p.210.

The defendants performed two separate pieces of work with respect to the 15th fairway. The works all were performed after the institution of the proceeding. The works were clearly designed to ameliorate the effect of the nuisance.

The defendants submitted that the performance of the works was not an admission that they were liable for actionable nuisance. But what is clear is that works, which cost no more than $20,000, could be carried out without difficulty and without in any way interfering with the enjoyment of golfers using the 15th fairway but also having the effect of ameliorating the nuisance of golf balls being struck into the plaintiff's land from the 15th tee and fairway.

In my opinion if the works had not been carried out, and the plaintiff had proceeded it had very good prospects of obtaining a mandatory injunction requiring the works to be done as a minimum to ameliorate the nuisance. See Pringle case where Helsham CJ was prepared to grant a limited mandatory injunction requiring the erection of a screen and planting of trees. Significantly he ordered the defendant to pay the plaintiffs' costs.

It follows that in my opinion on the evidence and in accordance with the relevant legal principles that the plaintiff had very good prospects of obtaining some form of injunctive relief in respect of hole 15. The actions taken by the defendants provided that relief.

The evidence overwhelmingly establishes and this was conceded by Mr Morris QC that the action taken to ameliorate the nuisance with respect to the playing of golf at the second hole were all carried out prior to the institution of the proceedings and accordingly the plaintiff would not have succeeded in obtaining any injunctive relief in respect to the second hole.

There is no evidence which would support any claim in nuisance in respect to holes 11-14 (inclusive), and 16-18 (inclusive) and accordingly the plaintiff would not have obtained any relief in relation to the playing of golf on those holes.

This brings me to the tenth hole. The land adjoining the 10th fairway is owned by the plaintiff and is divided into subdivisional lots. No building works have commenced on the site. Nevertheless, some remedial steps have been taken by the defendants since the institution of these proceedings to avoid errant golf balls landing on the plaintiff's land.

It is said that because the plaintiff has not commenced any building and nobody occupies the said lots that in those circumstances there would be no question of establishing a private nuisance and the granting of any injunctive relief.

The plaintiff owns the land and it can either develop those lots or sell them to others. It is well established that a cause of action in nuisance for damages is not complete until damage has been suffered and the fact that the golf balls land on undeveloped lots would lead to the conclusion that any award of damages would indeed be very small. But it is open in certain circumstances that an injunction can be awarded in anticipation of damage being inflicted in the future. The defendants did take steps to avoid the nuisance created on the 10th hole and if those steps had not been taken in my opinion the prospects were substantial that the court would have ordered an injunction in mandatory form requiring the defendants to take steps to prevent damage occurring in the future. The very fact that they did take those steps supports that conclusion.

It follows that in my opinion if the proceeding had proceeded to trial that the plaintiff had very good prospects of obtaining injunctive relief in respect to the playing of golf at holes 10 and 15 and by taking remedial steps the defendants have anticipated the likely outcome of the trial.

The evidence established that in 1994 and 1995 the defendants were aware of golf ball hazards in relation to, inter alia, holes 10 and 15. There is no doubt that prior to the institution of the proceedings the defendants were well aware of the problems of golf ball nuisance to the subdivisional land. During the period from February 1996 to February 1999 the body corporate responsible for the six villas at the second fairway raised questions with the defendants concerning problems with golf ball intrusion.

After the commencement of construction of the five units by the plaintiff, its solicitors on 20 August 1998 wrote to the defendants' solicitors concerning problems with errant golf balls and trespassing players. The plaintiff followed up that complaint over a period of time and received no satisfactory resolution of the concerns prior to the issue of its writ.

I have no doubt that the plaintiff was acting reasonably in instituting the proceeding as it had complained some eight months previously and had followed up the complaints with further requests that something be done. Prior to the institution of the proceedings it received no promises that any remedial works would be done.

The concept of whether a defendant is acting reasonably in defending proceedings is a difficult one to evaluate. One could not criticise the defendants for defending the proceeding but there was in my view a realisation within their camp, that unless they took remedial action they would lose the proceeding. This would have been a very costly exercise if the matter had proceeded to trial. Indeed, as it presently stands there is a suggestion that the costs on each side to date are in the vicinity of $125,000. By taking the remedial measures the defendants have avoided a costly hearing.

The facts in the present proceeding are very similar to the two New South Wales decisions of Pringle and Campbelltown Golf Club. It could not have been lost on the defendants and their advisers that they were facing a similar outcome.

Despite the contention of the defendants that they took the remedial steps without any admission that they were liable for actionable nuisance, the cold hard facts are that the plaintiff was seeking relief which would have the effect of ameliorating an undoubted nuisance and by the conduct of the defendants in taking those remedial steps, has now obtained much of what it asked for in its proceeding. I accept that the plaintiff has not obtained all the relief which it had originally claimed but the steps taken by the defendants represent a substantial proportion of the relief. In my view there is no suggestion that it would have obtained those remedial steps without prosecuting the proceeding.

It follows that the plaintiff has had substantial success in the proceeding. In accordance with the normal rule of costs following the event, in my opinion the plaintiff is entitled to its costs of the proceeding.

In my opinion fairness and justice requires that result. To do otherwise would be to unfairly deprive it of the fruits of its success.

This brings me to the question of whether it should get all of its costs of the proceeding. It was submitted on behalf of the defendants that the pleaded claim also covered alleged nuisances at holes 2, 11-14 (inclusive) and holes 16-18 (inclusive). The argument is that the plaintiff has failed in relation to these holes.

Excluding the question of the complaint concerning the second hole, the fact that the claim covered other holes did not in my view in any way substantially increase the costs of either side in this proceeding. It was apparent from a very early stage that the complaints were concerned with holes 2, 10 and 15. The mere fact that the plaintiff has claimed injunctive relief wider than was necessary in my view had very little effect upon the total cost of the proceeding to date.

But the second hole does involve different considerations. The plaintiff did not abandon its claim with respect to the second hole right up to May this year. It seems to me that this is a case where the court should exercise its discretion in relation to a discrete issue. There is evidence where the question of nuisance and the likely relief in relation to the second hole has been raised and addressed. In my opinion the plaintiff should not get its costs in relation to the legal services concerned with the second hole and in my opinion should pay the defendants' costs in respect to the issue.

Subject to any submissions from counsel I propose to make the following orders -

2. that the defendants pay the plaintiff's costs of the proceeding including the application for costs but excluding its costs in relation to the issues concerning nuisance at the second hole;

3. that the plaintiff pay the defendants' costs of the issues concerning the second hole.

At a glance

Court

Decision date

Before

Source

Judgment (117 paragraphs)

Parties

Cases Cited (4)