HIS HONOUR: This is a neighbourhood dispute. The plaintiffs and defendants are next door neighbours in Leichhardt. The plaintiffs sue for equitable relief in relation to alleged acts of trespass and nuisance. The case concerns a hedge planted by the plaintiffs on their property in about 2015. The hedge is planted adjacent to the dividing fence. From time to time parts of the hedge overhang the defendants' property. The defendants admit that they have in the past trimmed overhanging parts of the hedge back to the fence line and deposited the cuttings and the leaves from the hedge onto the plaintiffs' property. They say that they ceased to do so after these proceedings were commenced.
The plaintiffs say that in depositing the green waste onto their property, the defendants commit acts of trespass. The plaintiffs also say that other acts of trespass have been committed, to which I will refer later in these reasons. The principal complaint is that on 3 January 2020 the defendants went further and attacked the hedge by cutting branches and creating gaps in the hedge over the plaintiffs' side of the boundary. The second defendant admits cutting the hedge on that day but denies that either she or the person accompanying her, who was also engaged in cutting the hedge, cut the hedge on the plaintiffs' side.
The plaintiffs also brought two claims in nuisance. One claim concerned a CCTV camera installed by the defendants which filmed the plaintiffs' front door, which was said to interfere with the plaintiffs' use and enjoyment of their property and right of privacy. The second claim in nuisance concerned the placing by the defendants of a sign in their window that faced the plaintiffs' main entry door bearing what was said to be an offensive image. The sign was said to make an unfounded allegation against the plaintiffs visible to any entrant to the plaintiffs' property and it was said also to interfere substantially with the plaintiffs' use and enjoyment of their property.
In final submissions, the plaintiffs did not press their claims in nuisance.
The defendants pleaded that the plaintiffs are not entitled to equitable relief on the ground of unclean hands. In this respect, they relied upon various acts of trespass and alleged nuisance by the plaintiffs. I will deal with those matters so far as they are relevant later in these reasons.
The plaintiffs are Mr Eamonn Donnellan and Ms Sibeal Ni Mhaille. They were represented by a solicitor and counsel. The defendants represented themselves. The first defendant is Mrs Maria Cadeddu. She is 84 and does not speak English. She gave evidence through an interpreter, for whose assistance I am grateful. The second defendant, Ms Caterina Cadeddu, is Mrs Maria Cadeddu's daughter. She lives with her mother on the property. Mrs Cadeddu is the owner of the property. Ms Caterina Cadeddu conducted the defence for both defendants.
The proceedings had been listed for a live hearing but the Court was told that both defendants are not vaccinated and the plaintiffs' solicitor is also not vaccinated. I decided that the matter would have to proceed by way of audiovisual hearing. Unfortunately, although the defendants had requested an audiovisual hearing, they did not have the technology that permitted that properly to occur. The defendants' evidence and the defendants' submissions were therefore made by telephone link. Although this was unfortunate, it was, as Mr Doupe of counsel observed, unavoidable. I do not think that it ultimately affected my ability to assess whose evidence I should accept.
On 24 June 2021 the proceedings were set down for final hearing yesterday and today. On 7 October 2021 the plaintiffs filed a notice of motion seeking summary judgment in the following terms:
"(3) Injunctive relief prohibiting the first and second defendants jointly and severally from:
(a) causing green waste, animal waste or any other refuse to be deposited on the property of the first and second plaintiffs, and
(b) trimming, cutting or in any way interfering with the hedgerow of the first and second plaintiffs excepting any part of the hedgerow that is contained wholly on the property of the first and second defendants;
(4) Damages to be assessed;
(5) Costs."
The plaintiffs submitted that if the relief sought in the notice of motion were granted, the balance of the proceedings would be discontinued. I declined to entertain the application. The matter had been set down for final hearing. It is settled that an application for summary judgment should not be entertained if there is any real question of fact or law to be decided. The application was based upon admissions made in the defence by the defendants that they had cut the overhanging branches of the hedge, that is to say, the branches where they overhung the defendants' property, and had deposited the cuttings on to the plaintiffs' land. All other matters of alleged trespass were denied. There were contested questions of fact. There was also, as appears later in these reasons, a real question of law which made it inappropriate to entertain the claim for summary judgment. For these reasons I now dismiss the plaintiffs' notice of motion filed on 7 October 2021.
The statement of claim was filed on 15 September 2020. In their statement of claim the plaintiffs sought injunctive relief for trespass in the following terms:
"1. Injunctive relief prohibiting the defendants from:
a. causing green waste, animal waste or any other refuse to be deposited on the property of the plaintiffs; and
b. trimming, cutting or in any way adversely interfering with the plaintiffs' hedge row, excepting any part of the hedge row that is contained wholly on the defendants' property."
They also sought the following:
"3. Compensatory and aggravated equitable damages against the first defendant and the second defendant, jointly or severally."
As I have said, the claim for injunctive relief in relation to alleged acts of nuisance was not pressed.
An issue arose in final submissions as to the meaning of the relief claimed in para 3 quoted above. "Equitable damages" has been described as being the:
"standard term for awards of monetary relief in a statutory jurisdiction, namely, damages awarded under Lord Cairns' Act in addition to or in lieu of an order for injunction or specific performance." (Meagher, Gummow & Lehane's Equity Doctrines & Remedies, LexisNexis Butterworths 5th ed at [23 - 615].
The modern equivalent of Lord Cairns' Act is found in s 68 of the Supreme Court Act 1970 (NSW).
In my view, it is clear that the relief sought did not include a claim for damages at common law for trespass or nuisance. Leaving aside exemplary damages, all damages are compensatory. To say that the plaintiff was seeking compensatory damages at common law and aggravated equitable damages under s 68 of the Supreme Court Act would I think be, if not a nonsense, at least not a proper use of language. The plaintiffs' claim is clearly for equitable damages being damages under s 68. That claim depends upon the Court's having power to grant an injunction to restrain a trespass or nuisance. Damages cannot be awarded under the section if, for example, it is just that a plaintiff be confined to a remedy in damages in tort. In such a case the power to award damages under s 68 is not available: Paolucci v Makedyn [2021] NSWCA 215, at [28].
The plaintiffs pleaded their causes of action in trespass in the following ways. First, they say that the defendants trimmed the hedge and deposited the "green waste" and other waste onto the plaintiffs' land. This was said to have been done on seven occasions between 9 March 2018 and 2 December 2019 and thereafter on at least a weekly basis. The deposits of green waste onto the plaintiffs' land are alleged to be acts of trespass. As I have said, the defendants admit that they trimmed the hedge where it encroached on their land and they admit that prior to the commencement of the proceedings they deposited the cuttings onto the defendants' land.
Next, the plaintiffs say that the defendants have deposited other material onto their land, being other green waste or debris. This is denied.
Next, the plaintiffs allege that on 23 October 2019 the defendants caused animal faecal matter, namely dog poo, to be deposited onto their property. This is denied.
Next, the plaintiffs allege that in or around January 2020, meaning, as the evidence established, on 3 January 2020 (although the plaintiffs would not have known the exact day when they filed the statement of claim) the defendants damaged the hedge by removing sections of it that were within the plaintiffs' property and depositing the waste on their property. This is denied.
Next, the plaintiffs pleaded that the defendants engaged in "like conduct" on a weekly basis. The evidence to that effect was not read. It would have been inadmissible in the form in which it was adduced in the plaintiffs' affidavits. It was accepted during the course of the hearing that the only evidence of the plaintiffs having removed sections of the hedge from within the plaintiffs' property concern the events of 3 January 2020, to which I will come in due course.
The defendants pleaded facts that, if established, might give rise to a defence of unclean hands. They did not file a cross‑claim. They relied upon a number of acts of alleged nuisance, to which it will be unnecessary to refer, and also acts of trespass. In particular, they pleaded that, on various occasions from October 2019 and in 2020, the plaintiffs deposited their own green waste onto the defendants' land. They also pleaded that the plaintiffs leaned against the hedge, causing the hedge to lean further onto the defendants' property onto an already damaged green awning. They allege that the plaintiffs had trimmed the hedge so as to cause the branches to fall onto their property.
I will deal first with the legal principles concerning the parties' rights in relation to the encroaching branches and leaves of the hedge. In his written submissions Mr Doupe referred to Kynoch Ltd v Rowlands [1912] 1 Ch 527 for the proposition that a defendant who wrongly and directly causes some foreign matter to be deposited on another's land is liable in trespass. That proposition is true, but not to the point. In Kynoch Ltd v Rowlands, the matter deposited on the plaintiffs' land was the defendants' own waste.
The law as to encroaching tree branches was settled in Lemmon v Webb [1894] 3 Ch 1 (Court of Appeal) and [1895] 1 AC 1 (House of Lords), and in Mills v Brooker (1919) 1 KB 555. The same principles apply to encroaching hedges. Lemmon v Webb established that where branches overhang the land of another person he or she is entitled, without notice to his or her neighbour, to remove the encroaching branches from the tree if that is done without entering the land on which the tree stands. It is because the encroachment by itself is an actionable nuisance that the owner or occupier of the property over which branches hang is entitled to abate. Mr Doupe did not dispute this principle.
It has been suggested that the right of abatement has been inadvertently abolished by the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Balkin & Davis Law of Torts, 6th Edition, LexisNexis Australia para 14.53, footnote 240; Foster "Trees and Nuisance in New South Wales" (2007), 81 ALJ 291 at 293). I do not agree. That Act abolishes a cause of action in nuisance as a result of damage caused by a tree to which Pt 2 of the Act applies. (A tree is defined to include any woody perennial plant and therefore includes a hedge.)
Section 7 provides:
"An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land."
Section 18 provides that:
"Except as provided by section 5, nothing in this Act affects the rights that a person has under any other Act or law to interfere with any tree that is not owned by the person".
The right to cut overhanging branches or intrusive roots does not depend upon the branches or roots having caused or being likely to cause damage.
Lemmon v Webb establishes that where branches of a tree overhang the soil of another person, that person is entitled without notice to remove the branches. It is not necessary to show that the branches cause damage. Lord McNaughten said (at 7):
"I think it is clear that a man is not bound to permit a neighbour's tree to overhang the surfaces of his land, however long the space above may have been interfered with by the growth of the tree, nor can it, I think, be doubted that if he can get rid of the interference or encroachment without committing a trespass or entering upon the land of his neighbour, he may do so whenever he pleases and that no notice or previous communication is required by law".
In Young v Wheeler (1987) Australian Torts Reports 80-126, Wood J, as his Honour then was, said (at 68,969) that:
"While trees are an inescapable and desirable part of the landscape in suburbia, it is by now far too late to assert that the inevitable encroachment of their boughs or roots cannot constitute a nuisance".
The Trees (Disputes between Neighbours) Act 2006 does not abolish claims for injunctive relief to restrain a nuisance, and hence, does not affect the right of abatement.
Mills v Brooker decided that the encroaching branches and any fruit that they bear belong to the owner of the land on which the tree is planted. Moreover, those branches remain in the ownership of the person on whose land the tree is planted after severance. Accordingly, a person who has abated the nuisance by cutting off encroaching branches must not deal with the branches or their fruit without the consent of the owner of the tree, except by returning them to that owner's land. To dispose of the cuttings without consent would be a conversion. To detain them, at least after demand, would be detinue. The right to return the severed branches to the land on which the tree stands is incidental to the right to abate. The owner of the adjoining property overhung by branches is not obliged to go to any additional trouble or expense in order to dispose of the branches he or she is entitled to sever.
Mr Doupe relied upon a decision of Austin J in Medulla v Abdul Hameed [2003] NSWSC 747. Austin J did not address, and did not need to address, the principles I have sought to set out above. There the plaintiffs sued in trespass, it would seem, and in nuisance, although the acts in question amounted to trespass, when the defendants threw plants and leaves and other refuse into the plaintiffs' swimming pool. It is clear that the refuse, being dirt which caused damage to the swimming pool for which damages were awarded, came from the defendant's land. Moreover, it appears that at least a substantial part of the plants that were deposited into the swimming pool were plants that were growing on the plaintiffs' own land and that the defendant had trespassed onto the plaintiffs' land in order to cut those plants. Moreover, the action of throwing the plants into the swimming pool could not properly be described as an act of abatement of the nuisance, but an act intended to cause damage. It does not stand in the same category as the conduct alleged against the defendants in this case of depositing, that is dropping, branches and leaves onto the plaintiffs' land.
For these reasons I conclude that the plaintiffs have no claim in trespass insofar as they rely upon the conduct of the defendants in dropping the severed overhanging branches and leaves onto the plaintiffs' property.
I turn then to the remaining counts of trespass. It is convenient first to deal with the allegation of the deposit of other green waste and dog poo on 23 October 2019. The "other green waste" alleged in the statement of claim appears to be a few leaves from the hedge of which a photograph was taken which appears at p 188 of the court book. I have now had the advantage of seeing the pages of the court book as filed electronically which can be reproduced in colour. Even in colour, it is very difficult to detect what is said to be apparently a small amount of dried up old dog droppings. Assuming that the photograph does show some dog poo as the second plaintiff, Ms Ni Mhaille, deposed, the picture is consistent with the defendants having swept up cuttings and deposited them over the fence, and having caught up some of the poo of their own dog in the process of doing so. Ms Cadeddu denied that that had happened. That issue need not be decided. The isolated act would not, in any event, warrant the grant of any injunctive relief or damages.
The plaintiffs' principal complaint, as I have said, concerns what they found on their return from holiday on 3 January 2020. The plaintiffs had left their property on 30 December 2019. On their return they say they found that their hedge had been vandalised. This caused Ms Ni Mhaille considerable distress and anger. The plaintiffs contend, and Ms Cadeddu denies, that extensive parts of the hedge were cut and that extensive parts of the hedge that were cut were parts of the hedge on the plaintiffs' own land.
Before addressing the conflicting evidence on this topic, it is unfortunately necessary to make some observations about the credit of each of the witnesses. The only witnesses called were the parties themselves. I was not favourably impressed with the credit of any witness.
Mr Donnellan was cross‑examined by Ms Cadeddu in relation to steps taken by him which resulted in parts of the hedge falling onto the defendants' property. Some of these occurred when he was cutting the hedge with two‑handed clippers; some occurred when he was using a blower to blow cut leaves from the hedge. They were blown onto the defendants' property. He was at pains to say in his oral evidence that his acts in causing some waste to fall onto the defendants' property were unintentional and not deliberate. Having viewed video evidence tendered by Ms Cadeddu, I find it impossible to accept that explanation.
He also was cross‑examined in relation to an allegation made in the statement of claim in relation to a claim for nuisance. I mention this because it is relevant to credit, although the claim in nuisance itself is no longer in issue. The first claim in nuisance concerns a camera that the defendants had installed on their property, which it was pleaded "does not and cannot monitor any part of the defendants' property". In cross‑examination Mr Donnellan initially adhered to that evidence. He then said in the face of clear evidence to the contrary that the matter was merely technical. He then said that the camera was directed 80% towards the plaintiffs' property. The camera covered the narrow land between both the defendants' external wall and the plaintiffs' external wall, including the front door. His reluctance to accept the obvious makes me pause to consider the weight that I should give to his evidence when considering the issue of the events of 3 January 2020.
Speaking of what was found by the plaintiffs on their return home on 3 January 2020, Ms Ni Mhaille deposed:
"A once very lush and healthy lilli pilli hedge was [now] in a state of complete devastation, and a huge mess left behind in its wake. Located at page 57 of exhibit SNM1 is a photograph of the hedge as it appeared before we went away to the Hunter Valley.
Page 57 to 61 of exhibit SNM1 show images of the scene we found in our rear garden on our arrival home from the Hunter Valley, including the damage to the trees on 3 January 2020, and the hedge in its vandalised state as we saw it on that day."
The photograph at page 57 of exhibit SNM1 does show a very lush and healthy lilli pilli hedge. That was an older part of the hedge from that which was depicted in subsequent photographs. Mr Donnellan said that the photo was taken of the back part of the hedge that had been planted maybe two years before the hedge on the front part. In answer to questions asked by me, he then gave the following evidence:
"Q. Which part of the hedge was the part that was damaged?
A. The front section of the hedge, your Honour.
Q. The more recently planted part?
A. Yes, that's correct.
Q. Does it follow from that the picture at page 189 (vis page 57 of exhibit SNN1) doesn't depict the part of the hedge that was the subject of damage?
A. No, your Honour.
Q. It doesn't follow or it doesn't show that?
A. It doesn't show that, your Honour."
I regret to say that I continue to find that part of Ms Ni Mhaille's affidavit which I have quoted misleading.
The first defendant, Mrs Cadeddu, did not give evidence about the events of 3 January 2020. Her evidence is of no, or at least very little, weight. Under cross‑examination she reverted to a mantra of saying that she did not know and could not remember things about which she was asked. I take into account her age and apparent indisposition. In any event, her evidence is irrelevant to the events of 3 January 2020.
So far as Ms Caterina Cadeddu's evidence of this event is concerned, it has to be first of all said that a photograph (CB195) tendered by the plaintiffs clearly shows a branch having been cut off the hedge on the plaintiffs' side of the fence above a water pipe. The height of this below the top of the fence is not entirely clear, but appears to be about a metre or so. It was not put by Ms Cadeddu to either of the plaintiffs that they had themselves cut the branch or had, as Ms Cadeddu put it in her final submissions, staged the appearance of the hedge. In cross-examination, Ms Cadeddu accepted that her CCTV cameras had contained video evidence of her and her companion, a man called Dennis whom she had brought in to assist her, cutting the hedge. She said that she had reviewed the video evidence. She gave no responsive answer to the question as to what she saw when she reviewed the evidence. I thought she purported not to understand simple questions when she was being asked about this topic once she realised where the questions were leading. She said that the video evidence that she took had been accidentally deleted.
I take into account the video evidence of Ms Ni Mhaille's anger on 3 January 2020, which appears to me to be inconsistent with the plaintiffs themselves having taken any steps to cut the hedge on their side of the property. I can think of no reason why they would have done so, and no reason was suggested to them in cross-examination.
Ms Cadeddu referred to a report that Ms Ni Mhaille made to the police on 3 January 2020. The report, which is a police constable's record of what he was told and not necessarily accurate, nonetheless records a complaint of damage to 12 lilli pilli plants in the rear yard of the plaintiffs' property and of the persons identified as suspected offenders as having:
"used broken branches to break branches within the hedging, damaging the structure of the hedge. The person reporting has stated, the offender/s have intentionally used broken branches to put large holes throughout the hedging of the lilli pilli plants. The person reporting states the branches have gone through the plants and onto the surrounding ground. The person reporting states there are now large holes in the plants which may need to be replaced".
Analysis of the photographic evidence is somewhat difficult, because it may be the case that some of the gaps shown in the photographs may have been due to the admitted removal of branches of the hedge on the defendants' side of the property at those parts of the hedge which are above the fence line. No such explanation is available in respect of gaps below the fence line, and there appear to be gaps below the fence line.
I conclude that it is more probable than not, and notwithstanding Ms Cadeddu's denial, that either she or her companion, for whose actions she accepts responsibility, cut the hedge on the plaintiffs' side. It is not suggested that they entered the plaintiffs' property to do so otherwise than by leaning over the top of the fence standing on a ladder to do so.
The question then is whether this conduct, as I have found it, warrants the grant of injunctive relief. This is the only occasion upon which it is alleged the defendants have cut the hedge over the plaintiffs' side of the boundary. It is now more than 22 months since that event occurred. As Fry LJ said in Proctor v Bayley (1889) 42 Ch 390 at 400, in the context of a claim for Lord Cairns Act damages:
"…an injunction is granted for prevention and when there is not ground for apprehending the repetition of a wrongful act, there is no ground for an injunction" (cited with approval in Paolucci v Makedyn at paras [36] to [38]).
In other words, injunctive relief will only be available if there is an apprehension of future trespassory acts.
I am not persuaded that there is such an apprehension. I bear in mind that the plaintiffs have their own CCTV camera that is or can be trained on the hedge. I think it unlikely in the circumstances as they have transpired, that Ms Cadeddu would be bold enough to attempt again to cut the hedge on the plaintiffs' side of the boundary, especially given that I make clear in these reasons that to do so would be an actionable trespass. As I have said earlier in my reasons, I do not regard the claims for relief sought in the statement of claim as extending to a claim for common law damages. Because injunctive relief is not available, a claim for so‑called "equitable damages" is not available.
In these circumstances, it is unnecessary to consider the defence of unclean hands.
In case the matter goes further I should add the following. The defence of unclean hands must have an immediate and necessary relationship with the equitable relief sought. In FAI Insurances Limited v Pioneer Concrete Services Limited (1987) 15 NSWLR 552, Young J, as his Honour then was, suggested that the defence is only available if it can be said that the plaintiff would be taking advantage of his own wrong if granted equitable relief. The classic case of such a defence would be where the plaintiff sought specific performance of a contract, but the defendant established that the contract was entered into as a result of the plaintiff's misrepresentation. There are, of course, numerous other examples. They generally, to my reading, support what Young J said, with the possible exception of Goddard v Midland Railway Co (1891) 8 TLR 126.
The plaintiffs were inclined to accept that there was a sufficiently close and direct relationship between the alleged acts of trespass about which the plaintiffs complain and the defendants' direct acts of trespass about which the plaintiffs complain. I have already said that I do not accept Mr Donnellan's evidence that he has always tried his best to prevent any of the waste from the hedge when being cut by him falling on the defendants' property.
I think I have made sufficient findings in that regard as would enable an appellate court to decide the question of defence of unclean hands if the case were to go further. As I have said, the defendants obtain support for the defence from the decision in Goddard v Midland Railway Co and I do not think it necessary, nor desirable, that I express my own views, sitting as a primary judge, on the correctness of that decision which has been cited without disapproval on numerous occasions. The other acts relied upon by the defendants as acts of unclean hands which would disentitle the plaintiffs to equitable relief do not, in my view, have a sufficient and close relationship so to qualify.
Nonetheless, for these reasons I consider that the plaintiffs' claims must fail. I order that the proceedings be dismissed.
The defendants have represented themselves. They may, however, have been put to some expense by way of out of pocket expenditure in the nature of photocopying costs and the like; and they should be entitled to recover any such expenses. I order the proceedings be dismissed with costs.
[3]
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Decision last updated: 09 December 2021