[2007] HCA 45
Whitwam v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448
Source
Original judgment source is linked above.
Catchwords
[2007] HCA 45
Whitwam v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448
Judgment (3 paragraphs)
[1]
Solicitors:
n/a (Plaintiff/Cross-Defendant)
R A Stoyef, Solicitor (Defendant/Cross-Claimant)
File Number(s): 2013/304889
[2]
Judgment
HIS HONOUR: This application concerns the quantification of damages for trespass. It arises from proceedings determined by Slattery J last year (Laris v Lin (No 2) [2016] NSWSC 560 and Laris v Lin (No 3) [2016] NSWSC 727).
On 29 March 2012 the cross claimant, Mr Lin, completed the purchase from the cross defendant, Mr Laris, of a property at 237 Croydon Road, Croydon. This property is lot 7 in DP 14354. Mr Laris was the owner of a property at Lot 1 in DP 743076 that abuts Parramatta Road and was used as a showroom. Vehicular access to Mr Laris' property, and to Lot 7, was via a lane running immediately to the north of Lot 7 and behind six lots that also abutted Parramatta Road. This is depicted in the judgment in Laris v Lin (No 2) at [25]. Lot 7 and the lot immediately to the south of Lot 7, Lot 8, enjoy a right of carriageway over the lane. The Laris land, lot 1 in DP 743076, does not have a right of way over the lane, but the owners of the lots have allowed Mr Laris or his tenant to use the lane to have vehicular access to his land and have done so for many years.
In 1975 Mr Laris bought Lot 7 and he laid down paving at the rear of that lot to give room for trucks to turn while loading and unloading. That area was also used at that time for parking for the benefit of Lot 1 in DP 743076. In 1997 and 2010 two rights of carriageway were created over Lot 7 and Lot 8 for the benefit of Lot 1 in DP 743076.
The right of carriageway now extends 13 metres into the rear of Lot 7. At all material times, there could be no physical direct vehicular access from Lot 1, that is, Mr Laris' land, to Lot 7. The doorway from Lot 1 opened onto the adjoining laneway.
The procedural history of the litigation has been described by Slattery J in his judgments, and I will not repeat it. On 9 May 2016, his Honour dismissed the cross claimant's, Mr Lin's, claims for the extinguishment of the rights of way over lot 7. His Honour made a declaration that the registered proprietor of lot 1 in DP743076 is not permitted to park vehicles on the area of the 1997 easement or the 2010 easement.
On 6 June 2016, his Honour further declared:
"… that neither the 1997 easement (DP266903) or the 2010 easement (AFS980059S) give the owner of Lot 1 in DP743076 any right to enter or exit Lot 7 in DP14354 through the northern boundary of Lot 7 in DP14354, being the boundary between Lot 7 in DP14354 and Lots 1 and 2 in DP14354, and that as a consequence the owner of Lot 7 in DP14354 may fence the boundary between Lot 7 in DP14354 and Lots 1 and 2 in DP14354 subject only to the rights of the owner of Lot 8 in DP14354 created by the easement recorded as B476301."
On 9 May 2016, Slattery J also ordered that Mr Lin's claim for damages, including exemplary and punitive damages, be determined separately and after the other issues. These reasons deal with the claim for damages. On the hearing, Mr Stoyef, solicitor, appeared for Mr Lin, and Mr Stuart of counsel appeared for Mr Laris.
Mr Lin's claims for damages fall under four heads. First, he seeks compensatory damages for the cost of reinstating a fence between the northern boundary of lot 7 and the laneway at the rear of the properties that abut Parramatta Road. The amount claimed under this head was $3,690. Mr Stuart, for Mr Laris, accepted that damages in the sum of $3,158 had been established under this head.
The second head of compensatory damages sought is for the cost of reinstating or repairing a fence at the eastern end of lot 7; the western end of Mr Laris' property. The amount claimed was $533.50, and this was conceded.
Thirdly, Mr Lin claims damages arising from Mr Laris', and the tenant from Mr Laris, GTec Shopfitting Pty Ltd's ("GTec"), using the right of carriageway on lot 7 for parking. Slattery J found that this use was not within the rights granted. The amount claimed under this head was $40,128.
The fourth head of claim was exemplary damages. These were claimed in respect of two aspects of Mr Laris' conduct. First, the removal by him of the fence on the northern side of lot 7, where it abutted the laneway; and, secondly, the construction by Mr Laris of a fence on Mr Lin's land 13 metres back from the eastern boundary. The construction of that fence blocks access by occupiers of Mr Lin's land to the rear of that property where the right of carriageway extends.
Mr Lin deposed that on 31 March 2013 he removed an existing old wooden paling fence that was situated along a line approximately 13 metres from the eastern boundary of lot 7, and erected a wooden paling fence on the northern boundary. The fence erected on the northern boundary was 13 metres long. He also erected a new paling fence on the eastern boundary of his property right to the edge of the boundary. There was, in fact, some question as to whether that fence was located on the boundary or whether it was erected on Mr Laris' land, but there is no issue about the amount claimed under the second head of damages, and it is unnecessary to deal with that question.
The northern fence had, as I understand it, a double gate in it that Mr Laris says was four metres wide. Mr Lin deposed that he offered a key to the gate to Mr Laris and to the owner of GTec's business. In his first affidavit, Mr Laris admitted that Mr Lin advised him that he could obtain a key to the gate in the fence. He said that he was told by Mr Lin that the gate had to be locked at night and when it was not in use. In his second affidavit, Mr Laris deposed that at no stage did Mr Lin provide him with a key to the gates he installed. But it is nonetheless clear that he was offered a key.
Mr Laris took the view that the fence, even with the gates open, obstructed trucks delivering goods to the factory on his land. He said that the fence made it extremely difficult to bring anything between the truck and the fence, and he said that there was not enough room in the gate space for trucks to turn around if they came down the lane front first. He also complained that the fence created drainage issues and led to flooding of the factory floor. In November 2013, he removed the fence on the northern boundary of lot 7. He also removed the fence that had been constructed on the eastern boundary of that lot, and he built a fence on Mr Laris' land at about the same point where the previous fence had been placed, that is 13 metres from the eastern boundary.
The declaration made by Slattery J on 6 June 2016 determines that the removal of the fence on the northern boundary of lot 7 was wrongful and was a trespass. That was not disputed in the present application. There was unchallenged evidence that the cost of creating a fence of a length of 37.4 metres on that boundary, including the framework for the installation of a gate, would cost $6,028, and there was evidence that the cost of installing a sliding driveway gate was $1,595.
Mr Stoyef, who appeared for Mr Lin, claimed as damages the sum of $1,595 plus $2,095, being the cost of replacing a fence of 13 metres, being the extent of the fence removed. Mr Stuart, who appeared for Mr Laris, noted that because the gate was separately allowed for, the extent of the required fencing would be 9.7 metres, not 13 metres. Mr Stoyef made no contrary submission. I accept Mr Stuart's argument. The cost of reinstating the fence removed, for which damages are obtainable, is thus $3,158. As noted, $533.50 is claimed as damages for replacing the eastern fence and this is conceded.
I turn then to the third head of claimed damages, namely, damages arising from the parking of vehicles on the right of carriageway. Mr Lin claims damages on a restitutionary basis; that is, he claims that the defendant should be charged for the use of the land by him and by his tenant for parking vehicles. Prima facie, the measure of damages is the reasonable charge that Mr Lin could have levied to license his land for car parking. The remedy in damages is akin to an award of mesne profits (Whitwam v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538; Ministry of Defence v Ashman (1993) 66 P & CR 195 at 199-201; Inverugie Investments Ltd v Hackett [1995] 1 WLR 713 at 717-718; Lollis v Loulatzis [2007] VSC 547 at [221]-[234]; Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342 at [171]-[182]; and Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd (No 10) [2016] NSWSC 1587 at [173]).
The unchallenged evidence is that a reasonable commercial charge for car parking in this area was $12 per vehicle per day or $2 per vehicle per hour in the financial year 2011 to 2012; $15 per vehicle per day or $2 per vehicle per hour in the financial year 2012 to 2013; and $16.50 per vehicle per day or $2.20 per vehicle per hour in the financial year 2013 to 2014. Mr Lin claimed damages for the period from 29 March 2012 to 5 February 2014. He claimed damages both for the use of the right of carriageway by Mr Laris for parking his own vehicle and for the use of the right of carriageway by GTec for parking. Mr Stoyef accepted that for Mr Laris to be liable for acts of trespass by his tenant, Mr Lin needed to show that Mr Laris authorised, caused or permitted such acts by the tenant (Smith v Scott [1973] Ch 314; Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 Ch; Coventry v Lawrence [2014] UKSC 46).
The evidence as to Mr Laris' use of the land for parking was slight. Mr Lin deposed that he saw Mr Laris' car parked "on many occasions". Mr Laris admitted that he parked there "on various occasions". There was no evidence as to the frequency of use. No evidence was called from either party to supplement the evidence in their affidavits. Mr Stoyef read both the affidavits of Mr Lin and those of Mr Laris in Mr Lin's case and there was no cross-examination.
Mr Lin also deposed that from the time he completed his purchase of 237 Croydon Road, that is, from 29 March 2012 he observed various vehicles being parked on the rear yard on a daily basis during business hours and on the weekend. He noted that the vehicles so using the land for parking included four trucks and two vans bearing the livery of GTec. Mr Lin observed that vehicles were parked there for more than an hour at a time and sometimes for more than half a day.
GTec's managing director, Mr Diacopoulos, deposed that when GTec took occupation in August 2011 he was told by Mr Laris that he could use the driveway and parking area at the rear of 237 Croydon Road to park his work vehicles. Mr Laris accepted that he said something to this effect. This was because at the time the tenant took occupation in August 2011, Mr Laris was the owner of 237 Croydon Road and he had no objection to the property being so used. Mr Diacopoulos also deposed (at para 7):
"On numerous occasions after 16 February 2012 George Laris said to me; 'I have sold the property at 237 Croydon Road, but you can still use the driveway and parking area at the rear of 237 Croydon Road to park your work vehicles'."
Mr Laris did not specifically deny that particular paragraph, but Mr Diacopoulos went on to say in para 8 of his affidavit that between 1 October 2011 and about 31 March 2013 he used both the what he called the parking area and the laneway to park trucks and vans owned by GTec as well as to store work materials. He said that he did so based on numerous assurances by Mr Laris that he had the right to allow him to do so.
In response to para 8, Mr Laris deposed that:
"I advised Mr Diacopoulos that the rear of 237 could only be used for loading and unloading and turning, after February 2012".
Mr Diacopoulos deposed that in March 2013 he received a letter from Mr Lin's solicitors, and on 31 March he observed that Mr Lin was building a fence, including a fence on the boundary of 237 Croydon Road. He said that Mr Lin said to him words to the effect:
"There is a gate in the fence. Here is a key. You can use the driveway area to make a u-turn with your trucks, and load and unload your trucks but you cannot park there".
Mr Diacopoulos deposed that following that conversation he instructed his employees to ensure that they only used the rear of 237 Croydon Road to load and unload trucks, but he acknowledged that his employees may have parked vans and trucks owned by GTec at the rear of 237 Croydon Road for periods longer than was necessary to load and unload the vehicles.
Mr Laris deposed that Mr Diacopoulos advised him that he had agreed with Mr Lin not to park on the "easements". Mr Laris said:
"I did not suggest to him from then that he had any right to park there. I only advised him that I did not agree with Mr Lin".
After the cross-claimant's affidavits were read, Mr Stuart advised that he would not be calling evidence. This seemed to take Mr Stoyef by surprise. It was evident that he wanted the benefit of what he perceived to be admissions in Mr Laris' affidavits. But rather than tender those parts of Mr Laris' affidavits that might have contained admissions upon which he wished to rely, Mr Stoyef read the affidavits as part of his client's case.
There were thus conflicting affidavits led in Mr Lin's case as to whether or not Mr Laris told Mr Diacopoulos, on numerous occasions after February 2012, that Mr Diacopoulos could use the driveway and the parking area at the rear of 237 Croydon Road for parking. Although Mr Laris did not specifically address para 7 of Mr Diacopoulos' affidavit, I understand his evidence to be that he told Mr Diacopoulos that the rear of 237 Croydon Road could only be used for loading, unloading and turning after February 2012.
There was no cross-examination.
The question then is whether, in the face of the conflicting affidavits, both of which were read for the plaintiff, Mr Lin has not been able to discharge the onus that lies on him of showing that Mr Laris authorised, caused or permitted GTec to park vehicles on lot 7 from March 2012. It is curious that the Court should be put in this dilemma when it would have been open to Mr Lin not to have read Mr Laris' affidavits, but only to have tendered them to the extent that they contained admissions.
I have concluded that, notwithstanding the position taken by Mr Stoyef for Mr Lin, I can resolve the conflict of evidence by reference to the objective facts which I consider support Mr Diacopoulos' position. It is common ground that Mr Laris had told Mr Diacopoulos before February 2012 that he could park vehicles at the rear of lot 7. It appears, from the fact that he parked his own car on lot 7, that he believed that the rights granted pursuant to the easements extended to parking. Mr Laris accepts that in March 2013 he told Mr Diacopoulos that he did not agree with the position taken with Mr Lin. Having regard to these matters, I think it is very likely that he did say to Mr Diacopoulos words to the effect to which Mr Diacopoulos deposed.
That does not mean that Mr Laris continued purportedly to authorise GTec to park its vehicles on the rear of lot 7 after 31 March 2013. It is clear that from the time of his conversation with Mr Lin, Mr Diacopoulos was acting on the authority given to him by Mr Lin, not by Mr Laris. This is so, notwithstanding that GTec's employees may have breached the limits of the authority Mr Lin conferred. The encouragement and purported authority given by Mr Laris was spent by the end of March 2013.
Mr Stuart relied upon a release that Mr Lin has given GTec in relation to GTec's parking on lot 7. On a date that is unclear, Mr Lin and GTec entered into a deed by which they agreed that Mr Lin's claim against GTec would be discontinued. It was a term of the agreement that GTec provide Mr Lin with an affidavit to be filed in these proceedings and that it pay Mr Lin the sum of $2,500. I understand that this was done. The agreement entered into was in full settlement of proceedings of Mr Lin against GTec and there was a wide form of release.
If Mr Laris' liability for the tortious acts of GTec were a vicarious liability, then it may well be that Mr Lin's release of GTec operated for Mr Laris' benefit. But Mr Laris' liability is not of that kind. It is direct, not derivative, and it arises from his acts of authorising GTec to use the right of carriageway on lot 7 for parking.
I do not accept Mr Stuart's submission that Mr Lin's claim for damages for parking by GTec's employees or invitees, is affected by the release.
It was submitted for Mr Lin that damages for trespass, arising from the parking of vehicles by GTec on the rear of lot 7 from 29 March 2012 to 2 February 2014, should be calculated at the rate of $15 per vehicle per day for 96 weeks, equating to $10,170 per vehicle. The damages sought were $40,128, described as being a "notional cost of parking between 4-6 vehicles at $418 per week for 96 weeks". I do not pause to consider the arithmetic. It seems to me that on the evidence, in most cases that GTec's vehicles stood at the rear of lot 7 for less than half a day. It would thus not be right to apply a full day's parking levy.
By the same token, I would not limit the assessment of damages to four vehicles. I think the evidence that there were four to six vehicles justifies assessing damages on the basis of a rate to be applied for five vehicles. Although there was evidence that the vehicles stood on the rear of lot 7 on weekends, it was not clear that this included Sundays. I calculate damages for the parking of GTec's vehicles on the rear of lot 7 for 52 weeks, not 96 weeks, for six days per week for five vehicles, and I apply a rate, not of $15 per day, which would be the applicable rate only from 1 July 2012, and only for a full day's parking, but rather at the rate of $8 per day per vehicle.
On that basis, the damages for parking by GTec, which I have found was purportedly authorised by Mr Laris, is $12,480.
To that must be added some damages for Mr Laris' own use of lot 7 for parking. There has been an unidentified number of trespasses by Mr Laris when parking his own car at the rear of lot 7. Although the extent of the use is not identified, it is clearly not de minimis. Mr Laris maintained an office in the factory premises that were rented by GTec. I infer that he regularly attended those premises.
Given that I infer that he believed that he was entitled to park his car on the rear of 237 Croydon Road, and given that if he were to park elsewhere in the lane, he would be likely to have interfered with the movement of vehicles by other users of the lane, including GTec, I think it more probable than not that, when he attended his office, he parked at the rear of lot 7. This was a trespass. It is clear that he continued that use of the car park beyond March 2013, and I accept that damages should be assessed on the basis of his use of the rear of lot 7 for the period claimed by Mr Lin.
I think that the appropriate amount to allow for Mr Laris' parking on the rear of lot 7 is $750, which would equate to a little less than his use of the area for about half a day, once a week. Thus I assess damages for parking in the sum of $13,230.
That takes me to the final claim for exemplary damages. As I have indicated earlier in these reasons, although he was offered a key to the gates in the fence abutting the northern boundary of lot 7, Mr Laris took the view that the gate was too narrow for convenient passage of the trucks and for their being able to turn. Slattery J's declaration determines that the self help remedy that Mr Laris adopted of removing the fence was wrongful. It was not on that account contumelious or high-handed. In my view it was not unreasonable for someone in Mr Laris' position to reason that access to the right of carriageway on lot 7 could be had from the existing lane. That was the only available means of access by vehicles.
Slattery J held (Laris v Lin (No 2) at [94]-[99]) that the right of way created by the 1997 and 2010 easements over lot 7 allowed only access to the right of way on lot 7 directly from the Laris land and not via the laneway. That conclusion is not open to question on the present application. But in my view, Mr Laris or his advisers might reasonably have thought that access to lot 7 by the laneway was permitted. Mr Laris clearly thought so. In Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324, the Court of Appeal held that in construing a right of carriageway granted by a registered instrument under the Real Property Act 1900 (NSW), the Court could take into account the physical characteristics of the tenements (at [16]). This was so, notwithstanding the decision of the High Court in Westfield Management Ltd v Perpetual Trustee Co Ltd (2007) 233 CLR 528; [2007] HCA 45.
In Butt, Land Law, (6th ed 2010, Thomson Reuters) at [16 96], the learned author noted that in cases following Westfield Management Ltd v Perpetual Trustee Co Ltd, the courts have concluded that:
"the only information admissible in interpreting a registered easement is the material in the folio of the Register, the registered instrument itself, the registered plan showing the easement … and the physical characteristics of the benefited and burdened parcels of the land".
It would be reasonable for Mr Laris or those advising him to conclude that, having regard to the physical characteristics of the benefited and burdened land, vehicular access to the right of carriageway on Lot 7 could be had through the lane.
Slattery J contemplated that if the owners of the six properties abutting Parramatta Road, across whose land the lane runs, granted an easement in favour of Mr Laris' land over the lane, or if an easement were imposed by the Court under s 88K of the Conveyancing Act 1919 (NSW), then the occupiers of the Laris land could use the right of carriageway on Lot 7 via the lane (Laris v Lin (No 2) at [107] and [111]). In my view a person in Mr Laris' position might reasonably have thought that what could be done with the benefit of an easement could be done by licence from the owners of the six properties across which the lane runs.
While a self-help remedy is not favoured, the owner of a dominant tenement is entitled to abate a nuisance created by the owner of the servient tenement by removing an obstruction. Mr Laris' evidence, which was not significantly contradicted, was that the fence obstructed trucks from turning on the right of carriageway of lot 7. Thus, whilst Slattery J's declaration determines that Mr Laris' action in removing the fence was wrongful, it does not follow that it was contumelious or high-handed.
But Mr Laris did not stop at removing the fence on the laneway. He re-erected a fence on Mr Lin's land, 13 metres from the boundary, where the fence had previously been placed. This blocked off access from the house on lot 7 to the rear of the property. This went well beyond what was necessary to remove the obstruction. It was a trespass on lot 7, and in my view, was conduct that is appropriately characterised as high-handed and contumelious. It justifies an award of exemplary damages.
The object of such an award is to express the Court's view of the seriousness of the defendant's behaviour, to condemn that behaviour and to act as a deterrent. As has been said, exemplary damages are awarded to teach the wrongdoer that tort does not pay (Cassell & Co v Broome [1972] AC 1027 at 1130; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 471; [1985] HCA 12). It is no objection to awarding exemplary damages that Mr Lin has not claimed compensatory damages in respect of the erection of the fence. The tort of trespass is complete without proof of damage. Mr Laris is bankrupt. Damages for trespass are not a provable debt. They will be enforceable after he is discharged from bankruptcy. In these circumstances even a modest award of exemplary damages can carry a real sting.
In my view, exemplary damages in the sum of $5,000 should be awarded to mark the Court's condemnation of Mr Laris' high-handed behaviour in constructing the fence as a barrier across Mr Lin's land. For these reasons, I assess damages in the sum of $21,941.50.
I will hear the parties on interest and costs.
[Parties address on costs.]
The cross-claimant does not seek interest. Accordingly, I give judgment for the cross-claimant against the cross-defendant in the sum of $21,941.50. The cross claimant seeks a lump sum costs order (Civil Procedure Act 2005 (NSW), s 98(4)) in the sum of $5,000. In support of that application, he tenders a letter dated 6 March 2017 in which he offered to settle the claim for the sum of $8,700 as damages, and $2,500 for costs. The offer was not accepted. It is not an offer of compromise in accordance with the Uniform Civil Procedure Rules 2005 (NSW), because it is inclusive of costs.
Nonetheless, having regard to the conclusions to which I have come, I am satisfied that it was not reasonable for the cross-defendant not to accept the offer. The sum of $5,000, inclusive of disbursements, that is sought, is modest. I think it likely that the costs of an assessment would exceed, or at least approach, that figure. It is appropriate to make a lump sum costs order, and in my view the amount sought is reasonable, and indeed would be reasonable on an assessment on the ordinary basis, without regard to the cross-defendant's failure to accept the settlement offer of 6 March 2017.
For these reasons, I order that the cross-defendant pay the cross-claimant's costs in the sum of $5,000.
[3]
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: 21 March 2017