Hill v Wirepa

The evidence

1. The Property is comprised in a number of separate titles, lot 123/DP754412, lot 30/DP754416, lot 18/DP754416, lot 1/DP1012151 and lot 43/DP754439 (referred to in these reasons as Lot 123, Lot 30, Lot 18, Lot 1 and Lot 43 respectively), acquired between 1974 and 1999. The Ellenborough River passes through it. The Property formerly belonged to the Hills' father, Graham Hill (Mr Hill Sr), who lived on it from his retirement, in about 2010, until his death on 5 March 2022. On his death, the Hills were appointed executors of his will and thereafter inherited the Property from his Estate. They became registered proprietors of the Property between 17 and 21 October 2022 and hold the Property as tenants in common in equal shares.
2. Lot 170 had also belonged to Mr Hill Sr until he sold it to Peter Forester and Gillian Burns in 1983. It was landlocked in the sense that the only means of access to a public road was through the Property. Impassable, wooded Crown land otherwise adjoins Lot 170. It has no direct access to the Ellenborough River.
3. When Mr Hill Sr sold Lot 170 to Mr Forester and Ms Burns, they entered into a deed in which Mr Hill Sr granted them an unlimited right of access to a specified roadway on Lot 123 of the Property (the Route) while they, simultaneously, granted to him an unlimited right of access to a specified roadway on Lot 170 on another specified route. Mr Forester and Ms Burns sold their land to another purchaser and, after another change in ownership, it was acquired by Ms Wirepa in 2013.
4. The rights of access between Mr Hill Sr and Mr Forester and Ms Burns were specified to be granted by way of "perpetual lease", however, as the grant was of uncertain duration and did not fall within any statutory exception to the common law requirement of certainty in that respect, it could not operate as a lease. It was more properly characterised as a contractual, in personam, licence between the parties. In any event, it only relevantly applied to the specified Route and did not apply to Lots 1, 18, 43 or 30. Ms Wirepa has acknowledged that she accesses Lot 170 via Lots 1, 18 and 30.
5. Mr Hill Sr ran cattle on the Property. The Hills continue to do so, and currently keep around 30 heifer weaners and 40 cows. Ms Wirepa breeds and sells dogs on Lot 170.
6. Prior to his death, Mr Hill Sr allowed Ms Wirepa to use the Route to pass between the public road and Lot 170. He also allowed her to use a further route through other parts of the Property. Ms Wirepa had (and still has) a key to locks to gates on the Property along the Route.
7. There was, however, evidence of bad blood between Mr Hill Sr and Ms Wirepa in recent years. In emails between 2019 and February 2022, Mr Hill Sr expressed fear of Ms Wirepa, whom he described as a "very dangerous and vindictive woman". In an email sent 6 February 2022 to Leonie Crennan, the owner of an adjoining lot (Lot 124), Mr Hill Sr recounts a "very unpleasant confrontation" with Ms Wirepa in which he upbraided her for slashing his Land Cruiser tyres and "interfering with [his] big tractor amongst other things". Mr Hill Sr also referred to an occasion where Ms Wirepa had been conducting her dog selling business from his Property and that he had found her showing pups to a family at his cabin. He said that he had banned her from going near his river, which I take to be the Ellenborough River where it passed through the Property.
8. As a result of his concerns about her, Mr Hill Sr installed several CCTV cameras on the Property at the end of 2021. Those cameras were the source of some of the photographic evidence before me.
9. In her affidavit, which was sworn prior to the affidavit of Christopher Hill to which the above emails from Mr Hill Sr were exhibited, Ms Wirepa denied the allegation that she and Mr Hill Sr did not have a good relationship. Emails between them in late February 2022 indicate a level of neighbourly co-operation with respect to getting food supplies from town.
10. In an email to Christopher Hill on 9 June 2022, Ms Wirepa acknowledged some underlying friction with Mr Hill Sr prior to his death, which she explained as relating to entering into a new agreement providing her with extended access to the road. On 4 July 2022, Mr Christopher Hill responded, his response including: "Hi Silvana, I trust you are well. In regards to your email below dated 09.06.2022, I kindly ask you to get your solicitor to submit in writing your request to our lawyers. Their details are at the bottom of this email. In the mean time (sic) you are to abide by your current access agreement as it is written. The agreement in place is for access only - This does not imply use of the property. The land cannot be used as somewhere to store things, nor does it entitle you to the resources - Such as timber, gravel. Nor can you conduct business or otherwise make use of our property We also request that no cars be parked on our land for any reason short of a clear and present immediate emergency. As our property is a working cattle farm, we remind you that if a gate is currently closed - such as the gate on our boundary and at the river - then you are to close them behind you. As I have stated before, we wish to remain on good terms with all our neighbours, however due to your refusal to deal with myself directly - all correspondence will now need to be directed to our lawyers. [Solicitors' details for the Hills' were then provided]. Regards".
11. The relief sought by the Hills is consistent with this email.
12. Ms Wirepa lodged a caveat on the Property on 28 July 2022. The interest or estate claimed was a lease, pursuant to the agreement between Mr Hill Sr and Mr Forrester and Ms Burns and also by conduct. A lapsing notice was served on 25 October 2022. It appears the caveat lapsed as it does not appear on the title searches of the Property conducted on 19 August 2024.
13. In their letter to Ms Wirepa's solicitors on 25 October 2022, under cover of which the lapsing notice was served, the Hills' solicitors stated: "… we are instructed that your client has, without our client's consent and despite our clients' reasonable requests that she refrain from doing so: 1. on 21 September 2022, stored a vehicle trailer on the river flat on Lot 30; 2. on 22 September 2022, stored a large bracket on the river flat on Lot 30; 3. on 9 October 2022, failed to restrain her dogs whilst traversing Lot 123; 4. on 10 October 2022, failed to restrain her dogs whilst traversing Lot 123 on five (5) separate occasions; 5. on 12 October 2022, traversed Lot 123 not for the purpose of passing through the lot to her property, but to feed the cattle on Lot 123. We are instructed that our clients do not want your client interfering with their farm practices; 6. on 23 October 2022, failed to restrain her dogs whilst traversing Lot 123 on at least two (2) separate occasions; and 7. also on 23 October 2022, nearly struck cattle on Lot 123 with her vehicle. …"
14. By that letter, the Hills threatened injunctive proceedings to restrain the above alleged breaches. They sought written undertakings according to an attached form which Ms Wirepa signed and her solicitors returned the following day. The undertakings given by Ms Wirepa (the Undertakings) were as follows: "… 1. I undertake not to traverse lots 1/DP1012151, 30/DP754416 and 123/DP754412 (the Properties) other than for the sole purpose of accessing the real property located at Lot 170/DP754412. 2. I undertake that whilst I am traversing the Properties, I will not endanger cattle or property on the Properties. 3. I undertake not to store goods on the Properties, including, but not limited to, vehicles, vehicle trailers and brackets. 4. I undertake to restrain my dogs in my vehicle whilst I am traversing the Properties in accordance with these undertakings. 5. I undertake to otherwise restrain my dogs from entering the Properties. …"
15. Ms Wirepa commenced these proceedings in the Supreme Court on 9 November 2022. On 17 November 2022, Ms Wirepa undertook to the Supreme Court that she would "close all gates on the Property that she passes through where the gate was closed prior to her passing through it". That undertaking remains in force and the Hills do not seek any further relief in respect of it.
16. The Undertakings, given at a time when Ms Wirepa was legally represented, were not given on either a without prejudice or without admissions basis. In her response to the cross-claim dated 17 April 2023 (Response), however, she alleges that her solicitor did not explain the document to her, she disagreed with it and only signed it under duress.
17. In her Response, Ms Wirepa also states that she has complied to the best of her ability not to depart from the route between Lot 170 and the public road where it traverses the Property, not to use the route for any other purpose, not to allow her dogs to traverse the property other than in an enclosed motor vehicle or otherwise to trespass on the Property. She contends that a substantial part of the Property is, in fact, Crown land and she denies the specific allegations of trespass set out in paragraph 21 of the Statement of Cross-Claim.
18. Before me was photographic evidence, mostly timestamped, from the CCTV cameras on the Property, which recorded vision of Ms Wirepa, her dogs and visitors on the Property. On the basis of the affidavit, documentary and photographic evidence before me, I am satisfied of the following matters: 1. On 21 September 2022, a vehicle trailer belonging to Ms Wirepa was recorded as being stored on the Property (on Lot 30). 2. On 22 September 2022, a large bracket belonging to Ms Wirepa was recorded as being stored on the Property (on Lot 30). 3. On 9 October 2022, several dogs belonging to Ms Wirepa were recorded roaming Lot 123 whilst Ms Wirepa traversed the Property in her vehicle. 4. On 10 October 2022, several dogs belonging to Ms Wirepa were recorded roaming Lot 123 whilst Ms Wirepa traversed the Property in her vehicle. 5. On 12 October 2022, Ms Wirepa was recorded getting out of her vehicle and approaching cattle on Lot 123. 6. On 23 October 2022, several dogs belonging to Ms Wirepa were recorded roaming Lot 123 and Ms Wirepa was recorded driving her vehicle close to several cattle on the Property. 7. On 29 October 2022 (that is, three days after giving the Undertakings), Ms Wirepa was recorded driving past the residence on Lot 123 with one of her dogs chasing her vehicle. 8. On 12 November 2022, Ms Wirepa was recorded directing a visitor to park their car on Lot 30. Further photographs taken by Dean Salmon, the caretaker employed to look after the Property, on 14 November 2022 showed the car was parked on Lot 30 on that day. 9. On 24 November 2022, five of Ms Wirepa's dogs were recorded traversing Lot 123. 10. On 27 December 2022, the car that was parked on Lot 30 on 12 November 2022 was again parked on Lot 30. 11. On 28 December 2022, Ms Wirepa, two of her friends and about five or six dogs were swimming in the river that separates Lot 123, Lot 30 and Lot 43. I infer that they accessed the river through the Property. 12. On 20 October 2023, Ms Wirepa was recorded driving her vehicle around the Property with a passenger on the bonnet. 13. On 31 October 2023, Ms Wirepa was recorded driving around the Property on a quad bike. 14. Since 12 December 2023 (which was the date on which costs were determined by Slattery J in respect of the dismissal application), Ms Wirepa has failed to close and lock one of the gates on the Property when traversing it to get to Lot 170, conducted her dog selling business on the Property, invited third parties to traverse the property to access the Ellenborough River where it bisects the Property and, it was submitted, used the Property as though it were her own. 15. On 16 December 2023, Christopher Hill saw several cars driving past the house. Ms Wirepa was not with those cars and Mr Hill did not see Ms Wirepa pass the house, to open the gate, to the north of the river crossing to let those cars through. Mr Hill inferred that the gate had been left open or the key had been left near to it for anyone to use to open the gate. On 18 December 2023, the Hills' solicitor emailed Ms Wirepa to request her to continue to close the gate and remove any key that may have been left near it. Ms Wirepa did not respond. 16. On 20 December 2023, Dean Salmon recorded two cars, several people (including Ms Wirepa) and dogs on the Property. 17. On 3 January 2024, Dean Salmon observed a family swimming in the river. They told him that they had bought a dog from Ms Wirepa and she told them they could swim in the river as it is a public river. I infer that the family accessed the river through the Property.
19. While it is no doubt true that the Hills do not have any proprietary right over the river, as owners of the Property they do have a proprietary right over that part of the Property which constitutes the approach to it.
20. I am also satisfied that Ms Wirepa did not have the permission of the Hills, either as executors of the Estate of Mr Hill Sr or as owners of the Property in their own right (the transmission applications having been recorded in respect of the different lots comprising the Property between 17 and 21 October 2022) for any of the above conduct.

Trespass

1. The Hills' cross-claim is brought in trespass and nuisance, although at the hearing, Mr Fernandes, who appeared for the Hills, only addressed on trespass.
2. The general principles applying to claims of trespass to property are not controversial. Intentionally or negligently entering or remaining on, or directly causing any physical matter to come into contact with, land in the possession of another without permission or otherwise without lawful authority is a trespass: see Balkin & Davis, Law of Torts (6th ed, 2021, LexisNexis Australia) at [5.1].
3. Trespass is actionable per se and proof of damage is not necessary to establish the tort. Put another way, every unjustified entry directly by a person on land in the possession of another, which is carried out either intentionally or negligently, is an actionable trespass, even though no damage is done thereby: Halsbury's Laws of Australia, 415 - Tort, at [415-480] (online at 22 August 2024).
4. A person may become a trespasser by exceeding the ambit of a lawful entry. A person who has been permitted to enter premises for one purpose becomes a trespasser if entry is effected for a different purpose: Halsbury at [415-485].
5. For there to be a trespass, some element of human agency or fault is necessary. In the case of animals intruding onto a plaintiff's land, the mere fact of entry by an animal onto the plaintiff's land is not sufficient to establish the tort. In League Against Cruel Sports Ltd v Scott [1986] 1 QB 240 at 251-2, Park J stated: "I have … come to the conclusion that, before a master of hounds may be held liable for trespass on land by hounds, it has to be shown that he either intended that the hounds should enter the land, or by negligence he failed to prevent them from doing so. In my judgment the law as I take it to be may be stated thus: where a master of staghounds takes out a pack of hounds and deliberately sets them in pursuit of a stag or hind, knowing that there is a real risk that in the pursuit hounds may enter or cross prohibited land, the master will be liable for trespass if he intended to cause hounds to enter such land, or if by his failure to exercise proper control over them he caused them to enter such land. … This is, in each case, a question of fact. The master's intention, or the intention of those servants or agents or followers of the Hunt whose conduct he is responsible, has to be inferred from his or their conduct in all the circumstances of the case. … Further, if it is virtually impossible, whatever precautions are taken, to prevent hounds from entering league land … Yet the master knowing that to be the case, nevertheless persists in hunting in its vicinity, with the result that hounds frequently trespass on the land, then the inference might well be drawn that his indifference to the risk of trespass amounted to an intention that hounds should trespass on the land."
6. In the present case, the owners of the Property, being Mr Hill Sr and later the Hills, consented to Ms Wirepa traversing the Property for the purpose of travelling between the public road and Lot 170. In the absence of an easement or some demonstrated equitable entitlement, Ms Wirepa was entitled to do so as a matter of leave by them. The leave to do anything else, such as may have existed, was expressly revoked by Mr Hill Sr in a conversation with Ms Wirepa a month before his death. That leave was never reinstated.
7. In giving the Undertakings in October 2022, Ms Wirepa acknowledged the outer limits of the continued licence that the Hills afforded her. The Undertakings were made inter partes, were unilateral and unsupported by consideration, and are not enforceable. Mr Fernandes did not seek to do so but only relied on them for the evidentiary purpose of proving Ms Wirepa's acknowledgement. Although in her Response, Ms Wirepa disclaimed the Undertakings as not having been explained to her and given under duress, that allegation was not verified by the affidavit appended to the Response or repeated in her affidavit evidence, beyond a general complaint with respect to demands to sign documents within a short period, which may or may not have been a reference to the Undertakings.
8. I accept that the Undertakings demonstrate that Ms Wirepa accepted that the only purpose for which she was permitted to access the Property was to traverse it to travel between the public road and Lot 170 and that she was obliged to restrain her dogs when doing so.
9. The evidence establishes that, on multiple occasions, Ms Wirepa entered the Property for purposes other than travelling between the public road and Lot 170, such as accessing the Ellenborough River through it. She has no legal right to do so. That conduct is a trespass.
10. Similarly, inviting or directing visitors to traverse the Property to access the Ellenborough River is a trespass as, in such circumstances, Ms Wirepa intended that such people enter the Property for a purpose beyond travelling between Lot 170 and the public road and they did so at her direction or invitation.
11. Further, where Ms Wirepa has conducted any of her dog selling business from any part of the Property, that conduct is an obvious trespass. Leaving items of equipment on the Property is a similarly obvious trespass.
12. For the above reasons, I am satisfied that Ms Wirepa has, on multiple occasions, committed trespasses on the Property.

Relief

1. The Hills do not seek damages. Rather, they seek permanent injunctive relief restraining further trespasses by Ms Wirepa in the future.
2. Injunctive relief is discretionary and the onus rests on the Hills to show that it is, in the circumstances, appropriate. Where the trespass is of a continuing nature, or is threatened to be repeated, the circumstances generally are sufficient for the appropriate exercise of the discretion to be the grant of relief.
3. I am satisfied on the evidence before me that, unless restrained, Ms Wirepa is highly likely to continue to trespass on the Property in a similar way to those set out at paragraph 28 above, or at least those set out in paragraph 28(2) to 28(17). The evidence shows multiple and repeated trespasses. It also shows not only that Ms Wirepa did not deny her conduct, but having given Undertakings not to repeat it, she resiled from those Undertakings and continued to commit trespasses on the Property almost immediately afterwards.
4. It should be noted that the Hills do not seek - and the orders that I propose to make do not require - that Ms Wirepa ceases to traverse the Property for the purpose of moving between Lot 170 and the public road. She may continue to do so, subject only to the undertaking already given to the Court on 17 November 2023 that she close all gates on the Property that she passes through where the gate was closed prior to her passing through it.
5. The Hills also seek declaratory relief with respect to past trespasses by Ms Wirepa. Declaratory relief should only be exercised where the declaration sought will have practical utility in the circumstances: McGarrigle v Public Service Board [1979] 1 NSWLR 292.
6. I am not satisfied that the declarations sought, which only go to past breaches, will have any practical utility and, as declaratory relief is discretionary, I decline to make the declarations sought.

Costs

1. The Hills also seek a special costs order, seeking their ordinary costs of the cross-claim up to 9 May 2024 and indemnity costs for the preparation for, and appearance at, the hearing on 21 August 2021.
2. A costs order on the ordinary basis has already been made by Cole DCJ in respect of the interlocutory injunction hearing on 23 May 2024 and the present application does not seek to disturb that order. The special costs order is sought on the basis of a Calderbank letter sent on 9 May 2024.
3. Calderbank letters can form the basis of a special costs order because they facilitate the public policy objective of providing an incentive for disputants to end their litigation as soon as possible. They also give effect to the related public policy of discouraging wasteful behaviour by litigants. They provide a discretionary basis for Courts to award indemnity costs where an offer is made which is more generous to the offeree than the subsequent judgment and the offeree unreasonably failed to accept that offer.
4. A failure of a party to accept a Calderbank, however, offer does not necessarily sound in an award of indemnity costs in favour of the offeror. Merely because the offeror does better in the litigation than he or she would have had the offer been accepted is not, of itself, a sufficient reason. In order to justify an award of indemnity costs, the offer must be a genuine offer of compromise that was unreasonable for the offeree not to accept.
5. This is a matter of discretion, which must be exercised with reference to all of the relevant circumstances in the case. The rejection of a reasonable offer is not per se unreasonable. The ultimate outcome of the litigation is a weighty consideration as it is against that amount that the reasonableness of the offer and response should be, to a significant degree, measured: Alves v Patel [2005] NSWSC 841 at [57] per Adams J. However, it is necessary to consider the facts as they were known at the time of the rejection: Fried v National Australia Bank [2001] FCA 1280 at [17] per Gray J. What could and could not have reasonably been foreseen by the offeree informs this assessment: G Dal Pont, The Law of Costs (3rd ed, 2013, LexisNexis Australia) at [13.76]. The strength of the offeror's case or defence also has a significant impact on the Court's assessment of the reasonableness of an offer or its rejection: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [38] to [46]. Other factors include the stage at which the offer was made and for how long the offer remained open: G Dal Pont, The Law of Costs (3rd ed, 2013, Lexis Nexis Australia) at [13.76], [13.79]-[13.82].
6. The Hills' Calderbank letter offered settlement of the cross-claim on the basis of the cross-claim being dismissed, the Hills' notice of motion of 23 February 2023 (by which interlocutory relief was sought) being dismissed, and that each party bear their own costs of the cross-claim and 23 February 2023 notice of motion. Costs to date were estimated at $40,000 and final costs were estimated at approximately $120,000.
7. The letter further stated that rejection of the offer would be unreasonable given the admissions made by Ms Wirepa as to past trespasses, video and photographic evidence that had already been served, and the increasing costs being incurred which the Hills expected would be recoverable if they were to succeed at trial. The letter proposed that the dispute, the subject of the cross-claim, be settled on the basis of undertakings to the Court by Ms Wirepa: 1. not to enter or use the Property, without the prior written consent of the Hills, other than for the purpose of passage to or from the public road; 2. not, without the prior written consent of the Hills, to leave anything on the Property; 3. not, without the prior written consent of the Hills, to allow her dogs to enter the Property other than in her motor vehicle; and 4. not, without the prior written consent of the Hills, to direct any of her visitors to do any of these acts.
8. The offer was open until 16 May 2024. It was expressed to be made in accordance with the principles of Calderbank v Calderbank [1975] 3 All ER 333 and reliance on it on the question of costs was foreshadowed if the offer was not accepted and the cross-claim went to a final hearing.
9. Ms Wirepa did not respond to the Calderbank letter.
10. The injunctive orders I propose to make are broadly similar to those the Hills were prepared to accept by way of undertaking in settlement of the cross-claim. Significantly, the Hills were offering that there be no order as to costs in circumstances where they had already incurred significant costs and an order for costs would ordinarily follow the event if they were to succeed.
11. The only issue is whether the offer was only open for such a short time (one week) that, in the circumstances, it was not unreasonable for Ms Wirepa to fail to accept it within that time. The most relevant circumstance was that Ms Wirepa was unrepresented at the time. There is some evidence that she claims to have been suffering from "PTSD" and "Complex Post Traumatic Stress syndrome". The evidence before me, however, goes no higher than an assertion that Ms Wirepa suffers from such a condition. It is not possible to make a finding to that effect in the absence of proper medical evidence. There was no evidence at all in this regard. I, therefore, cannot make a finding that Ms Wirepa suffers from any such condition, much less can I find that it was a relevant circumstance to be taken into account in exercising my discretion as to costs.
12. The offer was made when the proceedings were very advanced. A date for the interlocutory injunction hearing had already been adjourned at Ms Wirepa's request. The evidence that had been served by the Hills by that date was compelling. Ms Wirepa had already given inter partes Undertakings to similar effect to those sought in the Calderbank letter.
13. In the circumstances, I consider it was unreasonable for Ms Wirepa not to accept the offer made in the Calderbank letter of 9 May 2024. A great deal of unnecessary cost could have been avoided had Ms Wirepa accepted the offer. I will make the special costs order sought.
14. In light of the costs order made by Cole DCJ on 23 May 2024, I will order that costs be paid by Ms Wirepa on the ordinary basis up to and including 9 May 2024, but all costs incurred thereafter in preparation for the hearing of 21 August 2024 and of the hearing itself be paid by Ms Wirepa on an indemnity basis.

Orders

1. Accordingly, the Court makes the following orders, which largely mirror the interlocutory orders made by Cole DCJ on 23 May 2024: 1. Subject to any order under s 88K of the Conveyancing Act 1919 (NSW) and pursuant to s 46 of the District Court Act 1973 (NSW), the cross-defendant, Silvana Wirepa, be restrained by herself, her servants, agents, visitors or contractors from trespassing on the land owned by the cross-claimants, Christopher Hill and David Hill, being the land in lot 123/DP754412, lot 30/DP754416, lot 18/DP754416, lot 1/DP1012151 and lot 43/DP754439 (together, "the Property"), including by doing any of the following without the prior written consent of Christopher Hill and/or David Hill or their successors in title: 1. entering or using the Property other than for the purpose of passage to and from the public road; 2. leaving anything on the Property; 3. knowingly, recklessly or negligently permitting any dogs that the cross-defendant owns or that are under her control from entering the Property, unless they are in a motor vehicle that is on the Property for the purpose set out in sub-paragraph (a) above. 1. The cross-defendant is to pay the cross-claimants' costs of the cross-claim: 1. up to and including 9 May 2024 on the ordinary basis; and 2. incurred after 9 May 2024, in preparation for and appearing at the hearing on 21 August 2024, on an indemnity basis.

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: 26 August 2024