Owners Strata Plan 4085 v Mallone

Supreme Court of NSW|2006-12-13|Before: Young CJ

CITATION : Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381

DECISION : Defendant liable to contribute to the abatement of the continued nuisance from her land involving rocks falling onto the plaintiff's land. Each party to pay their own costs.

CATCHWORDS : TORTS [171]- Nuisance- Rocks falling from defendant's land onto common land of body corporate- Not caused by defendant- Continued nuisance- Mandatory quia timet injunction- Duty to take reasonable care to abate nuisance- Scope of duty based on facts and circumstances- Defendant has limited finances- Rocks also falling from plaintiff's property- Plaintiff has not mitigated damages- Substantial cost to defendant of abating nuisance- Uncertain effectiveness- Defendant not to take all necessary steps, only those that are reasonable in the circumstances- Defendant to contribute some funds and to act reasonably in co-operation with plaintiff.

LEGISLATION CITED : Civil Liability Act 2002, s 35(1)(b) Strata Schemes Management Act 1996, s 227

Attorney General for Canada v Ritchie Contracting and Supply Co Ltd [1919] AC 999 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660; 79 ALJR 1511 Bonnici v Ku-ring-gai MC (2001) 121 LGERA 1 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Economy Shipping Pty Ltd v ADC Building Pty Ltd [1969] 2 NSWR 97 Giles v Walker (1890) 24 QBD 656 Goldman v Hargrave (1966) 115 CLR 458 Hargrave v Goldman (1963) 110 CLR 40 Hornsby SC v Danglade (1928) 29 SR (NSW) 118 Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341 Lambton v Mellish [1894] 3 Ch 163 CASES CITED : Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 Noble v Harrison [1926] 2 KB 332 Owners-Strata Plan 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169 Pontardawe Rural District Council v Moore-Gwyn [1929] 1 Ch 656 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 Redland Bricks Ltd v Morris [1970] AC 652 Richmond City Council v Scantelbury [1991] 2 VR 38 Sedleigh-Denfield v O'Callaghan [1940 AC 880 Sparke v Osborne (1908) 7 CLR 51 Sturges v Bridgman (1879) 11 Ch D 852 Thorpe v Brumfitt (1873) LR 8 Ch App 650 Torette House Pty Ltd v Berkman [1939-1940] 62 CLR 637 Yared v Glenhurst Gardens Pty Ltd (2002) 10 BPR 19,485

PARTIES : Owners Strata Plan 4085 (P) Magda Mallone (D)

COUNSEL : M Cashion SC and M A Izzo (P) C Birch SC and J Gruzman (D)

SOLICITORS : Harris Freidman Hyde Page (P) AWM Dickinson & Son (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

3443/06 - OWNERS STRATA PLAN 4085 v MALLONE JUDGMENT 1 HIS HONOUR: In this unfortunate case, the plaintiff is likely to suffer damage to its building through rocks falling off an area of a cliff face which is owned by the defendant. 2 The real villain appears to be the person who carelessly quarried in the area in the first half of the 20th Century. This person drilled holes for explosives to dislodge rock, but did not remove all the rock that had been shattered by the explosions. Over time, loose rocks have dislodged themselves from the cliff face and have descended the cliff and hit the plaintiff's building. 3 However, neither this person, nor the local council who, over objection of neighbours, sanctioned the building of the plaintiff's building close to the cliff face are sued. The action is between the plaintiff and the proprietor of the relevant part of the cliff face in nuisance and for a quia timet mandatory injunction. 4 There is virtually no contest as to the relevant facts and the principles of law involved in this case. Although the experts reached different views as to the appropriate methods of remediation, they hardly differed as to the cause of the present problem and neither was cross-examined. However, it is a very difficult task indeed to determine what just result should follow from those facts and principles. 5 The plaintiff is the Owners Corporation for Strata Plan 4085 and thus the owner of the Common Property of No 78 Undercliffe Road, Undercliffe. The building extends close to the foot of a cliff which is approximately 20 metres high for most of its length. 6 The defendant is the owner of No 12 Osroy Avenue, Earlwood. The defendant's house is at the top of the cliff. 7 The defendant is a pensioner who is not fluent in the English language. Her house appears to be her only substantial asset. 8 Most of the cliff face is the plaintiff's property. However, the boundary crosses the cliff face on the South Western corner and part of the face is owned by the defendant. Mr Shirley, the defendant's expert, has calculated that the major area of the cliff face (91.4%) is owned by the plaintiff with 6% being owned by the defendant and 2.6% by the owner of No 14 Osroy Avenue. 9 There is no direct evidence that rocks have fallen onto the plaintiff's building from the defendant's part of the cliff. The defendant acknowledges that an inference could be drawn that this is so. I indeed draw that inference and further infer that it is more likely than not that rocks will continue to so fall at irregular intervals. 10 I also find that the defendant did not engage in any activity on her land which has caused rocks to fall or has increased the risk of rocks dislodging from the cliff. Indeed the plaintiff acknowledges that this is so. The dislodgment has occurred through careless quarrying of a former proprietor or licensee of a former proprietor of the two parcels of land before subdivision and thereafter the action of natural forces such as erosion and vegetation putting its roots into cracks in the rock and splitting off fragments. 11 However, the plaintiff says that the defendant knows about the danger of rocks falling from her property to the plaintiff's property. Apart from anything else, she has been informed by the plaintiff's lawyers on a number of occasions since at least July 2005. The plaintiff says that the defendant has continued the nuisance as she has knowledge of it and has failed to take any reasonable steps to bring it to an end. 12 The proceedings were heard by me on 18 October, 2006. Mr M Cashion SC and Mr MA Izzo appeared for the plaintiff and Dr C Birch SC and Mr J Gruzman appeared for the defendant. I had a view of the locus with counsel on 11 October 2006. 13 It is to be noted that the plaintiff is the body corporate and that no individual lot owner is a party to the proceedings. I was a little concerned with this and said so. In particular, where the argument suggested that the rocks were a danger to humans, I wondered how far the body corporate had status to obtain an order. 14 Mr Cashion put that there was no doubt that the plaintiff had standing to bring these proceedings under s 227 of the Strata Schemes Management Act 1996 which provides that where the owners jointly have a right of action, that right may be exercised by the Body Corporate; see Owners-Strata Plan 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169. Some joint right is involved in this case, but other several rights may also be involved. Further, the ramifications of proceedings taken under that section are unclear. However, the defendant took no point on this question and the court proceeded to deal with the merits of the claim. I merely mention the point to show it has not been overlooked. 15 Despite intellectual difficulties as to how this point was reached, both sets of counsel agree generally on the principles of law to be applied. 16 I say this because, as Dr Birch points out, the law prior to 1940 was that generally speaking there was no liability on a landowner if rocks fell from his or her land as a result of weathering or other natural forces; see eg Pontardawe Rural District Council v Moore-Gwyn [1929] 1 Ch 656, 660. Likewise, there was no liability for the natural spread of prickly pear: Sparke v Osborne (1908) 7 CLR 51 and see Giles v Walker (1890) 24 QBD 656. 17 One starts a consideration of the modern law with the decision of the House of Lords in Sedleigh-Denfield v O'Callaghan [1940] AC 880 which approved the dissenting opinion of Scrutton LJ in Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341. Viscount Maugham stated the relevant principle, as follows (at 894-895): "In my opinion an occupier of land 'continues' a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He 'adopts' it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance. In these sentences I am not attempting exclusive definitions." 18 In the Job Edwards case, Scrutton LJ quoted "the law in principle" from Salmond's Law of Torts 5th edition (Sweet & Maxwell, London, 1920) page. 260 (at 359-360): "When a nuisance has been created by the act of a trespasser, or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement." 19 In Hargrave v Goldman (1963) 110 CLR 40 at 51-52 per Taylor and Owen JJ, the High Court approved Sedleigh-Denfield, quoting the identical passage from Salmond as the correct test of liability. 20 Taylor and Owen JJ also noted (at 51) that the same principle had been applied previously in Australia in Torette House Pty Ltd v Berkman [1939-1940] 62 CLR 637. 21 In Torette, Dixon J quoted from Noble v Harrison [1926] 2 KB 332 at 338 per Rowlatt J setting out three circumstances in which liability for nuisance will arise, the third of which overlaps with the principle in Sedleigh-Denfield (quoted at 657): "(3) if, when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did or ought to have become aware of it." 22 There is therefore no question that the plaintiff has correctly based its claim for a mandatory injunction on the principle in Sedleigh-Denfield establishing its cause of action in nuisance. There is no question that the defendant owes a duty to take reasonable care to abate the nuisance caused by rocks falling from its land onto the plaintiff's property. The fundamental question concerns the scope of that duty. 23 In Goldman v Hargrave (1966) 115 CLR 458 the Board of the Privy Council upheld the decision of the High Court in Hargrave v Goldman, finding in favour of the respondent on the basis of negligence. In Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 the English Court of Appeal held (at 514-515) that the outcome in Goldman v Hargrave did not turn upon a distinction between the forms of action in negligence and nuisance, otherwise observing (at 517) that the duty owed in nuisance had come to be expressed as a duty of care as a consequence of the historical development of that concept in the law of torts. Having found that a duty of care arose, the High Court similarly concluded (at 53) that, " … it is of no consequence whether his liability rests in negligence or nuisance." 24 Fundamental to the outcome of the present case is a determination of the scope and content of the defendant's duty to abate the nuisance caused by rocks falling from its property onto the property of the plaintiff. 25 The scope of the duty recognised in Sedleigh-Denfield was discussed in Goldman v Hargrave (at 467-468). The Privy Council said the scope of the duty was limited to taking reasonable steps to abate the nuisance, identifying factors such as (at 464, 467-486): v Effort, and; v Expense. 26 According to the Privy Council the standard of reasonableness varies according to the individual circumstances of the occupier, their individual financial and physical capacity to abate the nuisance, as well as the relative resources of the threatened neighbour, and objective factors relevant to the standard of the duty such as the magnitude of the risk. Thus arises a "measured duty of care", so that (at 467): "… where the hazard could have been removed with little effort and no expenditure, no problem arises. But other cases may not be so simple. In such situations the standard ought to be required of the occupiers what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more." 27 The Board asserted (at 468) that such limitation was consistent with the majority decision in Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341, given the cost to the occupier of removing the hazard estimated at £1000; with the reasoning of Scrutton LJ (dissenting) in the Job Edwards case approved in Sedleigh-Denfield; and with Pontardawe Rural District Council v Moore-Gwyn [1929] 1 Ch 656, "where to maintain the rocks in a state of safety would have cost the occupier some £300". 28 The Board pointed out (at 464) that Scrutton LJ had pondered a different set of facts where liability would be imposed "if by reasonable care he can render it harmless, as if by stamping on a fire", juxtaposing this with the "very simple step" required to abate the nuisance in Sedleigh-Denfield, that of placing a grid in the drain. Similarly, the Board noted (at 467) that in Hargrave v Goldman the occupier was held liable by the High Court for failing to take the very simple and reasonable step of dousing the flames in water to prevent the spread of fire to neighbouring property. 29 In Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, Megaw LJ said: "The defendant's duty is to do that which is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man - not the average man - can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means.

… where the expenditure of money is required, the defendant's capacity to find the money is relevant. But this can only be in the way of a broad, and not detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour's capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant." 30 These principles were applied by Austin J in Yared v Glenhurst Gardens Pty Ltd (2002) 10 BPR 19,485. His Honour adopted the principle in Leakey concerning the scope of the duty and this should be seen as good law in Australia, stating (at [99]): "Despite the absence of direct authority, I have no doubt that the principle in Leakey's case would be applied in this country, since Leakey's case in turn is an application to English law of the principles of Australian law enunciated by the High Court and Privy Council in Goldman v Hargrave ." 31 Hence the scope of the duty where nuisance is adopted or continued, is to take steps which are reasonable in the circumstances to abate the nuisance, as stated by Austin J (at [105] p 19,490 referring to Leakey's case): "The case supports the proposition that a landowner in occupation of his land has a duty, when he is aware or ought to be aware of a hazardous condition on the land which puts the neighbouring land at risk, to take such steps as are reasonable in all the circumstances to prevent or minimise the risk of injury or damage to the neighbour's property." 32 For the reasons set out by his Honour at 19,491, the appropriate quia timet relief is not that the owner of a small building or small piece of land must carry out extensive works, but rather that he or she must do what is reasonable in co-operation with the person who has more at stake. 33 I turn now to consider the relief sought by the plaintiff. The plaintiff submits that it is prima facie entitled to a quia timet injunction. A mandatory quia timet injunction is a discretionary remedy. As Austin J noted in Yared at [105]: "In an appropriate case, the duty may be enforced by a mandatory quia timet injunction, available on general equitable principles." And his Honour added at [106]: "… Leakey's case supports the view that injunctive relief is available to vindicate the duty, provided of course that equitable discretionary considerations favour the granting of such relief in the instant case." 34 Equity has granted quia timet orders for centuries. Story's Equity Jurisprudence, 13th ed (Rothman, Boston, 1886) ch 21, referring back to Coke on Littleton notes that they are the equitable equivalent of the old writs of prevention. Thus, equity acts on analogy with what might be done had there been a tort at common law. 35 However, it must be remembered what Lord Dunedin said in Attorney General for Canada v Ritchie Contracting and Supply Co Ltd [1919] AC 999, 1015: "no one can obtain a quia timet order by merely saying 'Timeo' ". 36 However, the view taken in Meagher Gummow and Lehane, Equity Doctrines and Remedies, 4th edition (Butterworths, Sydney, 2002) [21-395] must be correct that such a comment did not mean that a plaintiff is unable to prove its case by relying on what had happened in the past and the presumption of continuance or that a plaintiff is not entitled to prove its case by relying solely on evidence of its own officers.

37 As Snell's Equity 31st edition (Thomson, Sydney, 2005) says at [16-13] page 397, a plaintiff: "Must prove that there is an imminent danger of very substantial damage, or further damage." 38 Snell notes at [16-14] p 399 that the jurisdiction to grant a mandatory injunction requiring preventative work is sparingly exercised, but in a proper case, unhesitatingly. What must be shown is that there is a very strong probability that grave damage will accrue to the plaintiff in the future. Further, the cost of the proposed work is an element to be taken into account. 39 It may be that Snell's statement, which is based on Redland Bricks Ltd v Morris [1970] AC 652, states the law too severely against the plaintiff in the light of Australian authorities, but the general flavour is correct. 40 The High Court obliquely considered this type of injunction in Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660; 79 ALJR 1511, 1514. Four justices noted that the damages for nuisance were readily ascertainable. They then said at [11]: "No attention seems to have been paid to the fact that the claim for injunctive relief was a claim in the auxiliary jurisdiction and would ordinarily only be ordered if damages were not ascertainable or otherwise not an adequate remedy." 41 The actual decision in the Alamdo case turned on a statutory defence, but there is clear warning that it is inappropriate to grant injunctions in the auxiliary jurisdiction (and the present case is in that jurisdiction) where damages are able to be ascertained and where they are adequate. 42 I now need to return to the facts and the contentions of the parties as to the relief. 43 The plaintiff says that there is a likelihood that rocks, soil, earth and associated debris will continue to fall from the south-west corner of the cliff face onto the plaintiff's land, posing a risk to life and property in the vicinity. In particular, Mr Cashion puts, the evidence is that the risk to property posed by further landslips from the south-west corner, assessed in accordance with the guidelines issued by the Australian Geomechanics Society (AGS) is high and the risk to life posed by further landslips is unacceptable. 44 Mr Shirley, the defendant's expert said in a preliminary report that he considered that the annual probability of a person being injured, possibly fatally, while hanging clothes on the line at the plaintiff's property was about 1 in 4000. The statistics kept by the relevant government department assessed an acceptable level of risk as 1 in 1,000,000. Thus the risk must be classed as unacceptable, 45 Mr Cashion then says, "It follows that remedial work is required in order to make the cliff face safe." That may be so, but the vital question is what work should be done to make the cliff face safe and who should pay for it. 46 I will just insert the reminder at this point that there is a problem for the Body Corporate seeking an injunction to prevent possible injury to a single member of the corporation or that person's family as noted earlier. 47 The plaintiff's expert, Mr Grahame Wilson of Douglas Partners Pty Ltd says that the south western rock face must be cleansed of all plants and undergrowth, rock bolts are to be inserted where necessary and mesh and drainage provided with shotcrete covering. As far as I can see, there is no detailed quote in evidence for this work, though the supervising consultant would charge a professional fee of $8,200. 48 The defendant's expert, Mr Shirley, agrees that the current level of risk to persons is well above acceptable levels. However he says that the whole cliff face should be stabilized, not just the south western face. Because Mr Shirley considers the cost of that exercise to be well beyond the means of the parties in the short term, he suggests that immediate measures be taken to erect a safety barrier fence around the parts of the plaintiff's building which is likely to be hit by rocks and debris. Indeed, a temporary barrier has now been erected. 49 The focus must be on the reasonableness of the defendant in all the circumstances. 50 Mr Cashion puts that whether or not reasonable steps have been taken by a defendant to minimise a nuisance depends on matters such as the extent of the risk, the possible extent of the damage if the risk becomes a reality, the practicality of preventing or minimising the happening of any damage, the nature of the measures required, including their difficulty, their length and their cost and the time available to the defendant to take preventative action. 51 I agree with that submission which is based on Leakey at 524; Yared at [98-9] and [108] and Richmond City Council v Scantelbury [1991] 2 VR 38, 46-7. 52 The plaintiff says that the defendant's conduct has not been reasonable. Although the risks have been pointed out to her, she has declined to do anything, endeavouring to pass the problem on to the local council. The plaintiff has had to take the initiative in engaging experts to find out what had to be done and even after their views became known, the defendant declined to do any works on her land nor did she make any offer to contribute to the cost of the works. 53 Further, the plaintiff says that the fact that some remedial work might need to be done on the plaintiff's own portion of the cliff face does not absolve the defendant from doing some remedial work on her land. It is clear on the authorities that if a nuisance only comes about because of the combined conduct of a number of persons, each is liable so long as he or she knows what the others are doing. The relevant authorities are Lambton v Mellish [1894] 3 Ch 163; Thorpe v Brumfitt (1873) LR 8 Ch App 650, 656 and Bonnici v Ku-ring-gai MC (2001) 121 LGERA 1 at [196]. 54 In its amended summons, the plaintiff seeks the following orders:

(1) A declaration that the evidence shows the commission of the tort of nuisance;

(2) An injunction restraining the defendant from permitting rocks, debris etc to pass on to the plaintiff's land so as to occasion a nuisance;

(3) An order that the defendant procure the work to be done as specified in Mr Wilson's affidavit;

(4) Alternatively to (3), an injunction restraining the defendant from preventing the plaintiff effecting the work on the defendant's land. 55 The summons also claimed damages, but this was not pursued at the hearing. The case proceeded on the basis that its aim was to obtain orders for the required remedial work. 56 Mr Wilson's affidavit referred to in proposed order 3 was a little vague as to the cost of what was to be done, but it involved a fairly comprehensive scheme of clearing vegetation, rock bolting loose areas and erecting protective netting. 57 Dr Birch put that there were objective aspects of the risk which operated against the granting of the plaintiff's claim, viz:

(i) The cliff was an objectively ascertainable hazard prior to the construction of the plaintiff's building;

(ii) The defendant had protested to the local council about the folly in allowing a building to be built so close to the cliff on the plaintiff's land;

(iii) The plaintiff's predecessor in title had failed to stabilize the cliff face prior to building;

(iv) Had the local council required stabilization of the cliff face prior to building, the cost would have been wholly borne by the plaintiff's predecessor;

(v) The problem occurred because of failure by a predecessor in title to the plaintiff (Mr Schwebel) when he owned all relevant blocks; (vi) As Mr Schwebel, who held the plaintiff's land immediately after he transferred away the defendant's land, could not have sued the then proprietor of the defendant's land in nuisance, neither can the plaintiff now sue;

(vii) The complaint about the south west corner is not so much about the stability of the cliff face as the folly of constructing the plaintiff's building in its present position;

(viii) The risk can be eliminated by the simple construction of a heavily engineered barrier at the south west corner. 58 Although there is a lot of common sense in many of these points, the law is that it is no defence that the plaintiff has come to the nuisance; see eg Leakey at 515. In Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 concerning continuation of nuisance, Hodgson J (at 485-486) affirmed that proposition, holding that to construct a building in obvious proximity to the nuisance is no defence. His Honour said (at 486) that the fact that the plaintiff had come to the nuisance did not prevent it being unreasonable for the defendants to do nothing, consistent with the principle in Sturges v Bridgman (1879) 11 Ch D 852. 59 Nor does it excuse the defendant that the local council might, if sued in time, have had some liability to the plaintiff or that a prudent builder would have secured the cliff before building. 60 As to point (vi), I admire counsel's ingenuity, but there is a fresh tort each time a rock falls, and it is too artificial to say the present scenario is merely an aspect of what happened long ago between different people. 61 However, the flavour of these points is relevant when evaluating submissions on reasonableness. 62 As to reasonableness, Dr Birch submits that Mr Wilson's report of May 2005 suggests that the rock falls have not only come from the south west corner, but that there has also been fall from the part of the cliff owned by the plaintiff. 63 There is a suggestion in the evidence that failure of part of the main face triggered some of the fall from the south west corner. This may be so, but the evidence is insufficient to establish it on the balance of probabilities. 64 Furthermore, the experts agree that the vegetation must be cleared from the cliff face. The vegetation does not respect boundary lines and if it is to be cleared, it is sensible that the whole cliff face should be cleared. 65 Dr Birch puts that there is no sensible reason why the whole of the cliff face should not be stabilized, not just the south west part. 66 The best way to proceed, so Dr Birch submits, is as Mr Shirley has suggested, to stage the remedial work. 67 Mr Shirley suggests that a rock impact security zone be established as soon as practicable. This might be by the erection of a strong security fence 1.5 metres high and 4 metres from the cliff face constructed of steel and rock fall netting materials. There should be the creation of a soft landscaping zone of planting within the security area in association with appropriate drainage. There should also be a rock catch ditch within the security area to ensure that materials do not go past the fence, but are retained within the rock security impact zone. 68 Within the next two years, attention must be paid to drainage works. However, the major problem appears to be that water draining from No 14 Osroy Avenue (whose proprietors are not party to these proceedings) create conditions for instability on the south west face. A catch drain should be erected on No 14 at the top of the cliff. 69 There must be removal of trees and vegetation over the whole cliff face as the roots of vegetation are prising apart fractures in the exposed cliff. Removal of vegetation from the south west face will only have minimal effect on the risk to life at No 78. 70 Mr Shirley says that the above work would probably cost about $310,000. 71 Mr Wilson was more in favour of doing work only on the south west face involving rock bolting, shotcreting and providing rock fall netting. Mr Shirley considers that the cost of this process would exceed one million dollars and that because it does not address drainage issues, might not be as effective. 72 Mr Shirley says that loose boulders can be removed after the vegetation has been cleared, but it will have to be done by hand. 73 Dr Birch also makes the point that some of the works suggested by Mr Wilson would require co-operation of the proprietor on No 14 Osroy Avenue who is not a party to these proceedings. 74 As to discretionary factors, Dr Birch says:

(a) The defendant is a pensioner with no other assets: her ability to borrow except from her family may well be limited; (b) The work is solely for the benefit of the plaintiff; (c) It is quite inappropriate to frame the action as one by the body corporate alone, stress the danger to persons inhabiting the plaintiff's building yet not offer to make any contribution by any of the lot holders to the cost of the protective work . 75 Dr Birch suggests that the problem must be solved by a joint co-operative program involving all the relevant owners and perhaps the local council which, in any event, may need to consent to any of the proposed works. 76 He notes that in Yared at [104] Austin J made it plain that this sort of problem is often best solved in such a manner. However, his Honour did not need to decide whether the court should decline to give relief for this reason. However, he did say at [119]: "The plaintiff is not entitled to the mandatory quia timet injunction that she seeks, because the defendant has no duty to carry out the whole of the remedial work alone. Even if the law as stated in Leakey's case required me to recognize such a duty, I would decline for discretionary reasons to make the mandatory order…the granting of a mandatory injunction is always a discretionary matter." 77 Dr Birch submits that, in the present case, no order should be made, other than providing some definition as to what access should be granted. 78 In reply, Mr Cashion notes a number of cases, mainly concerned with prohibitory injunctions where courts have said that if nuisance is established, there is a prima facie entitlement to an injunction. Dr Birch says that these are not directly apposite where a mandatory injunction is claimed and bases his submission on the House of Lords' decision in Redland Bricks Ltd v Morris [1970] AC 652. 79 It is not necessary for me to enter into an adjudication as to whether all that was said in Redland Bricks represents the law of Australia. The decision of Helsham J in Economy Shipping Pty Ltd v ADC Building Pty Ltd [1969] 2 NSWR 97, 106 would suggest that it is, but there are good arguments the other way which can be seen in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 even though that was an interlocutory injunction case. 80 However, it is abundantly clear on all the authorities that the granting of a mandatory quia timet injunction is discretionary and whether relief should be granted is a matter of judicial discretion based on the facts and circumstances of each case: the debate is merely over whether a court looks for some special features before granting a mandatory injunction. 81 I should note that Meagher Gummow and Lehane, Equity Doctrines and Remedies, 4th edition [21-465], divide mandatory injunctions into restorative and enforcing. The present case does not clearly fall into either category. Those authors describe a restorative mandatory injunction as:

"an injunction which compels a person to repair the consequences of some wrongful act done by him, for example to demolish a house erected in contravention of statute."

The authors cite, as the case on which this example is based, the decision in Hornsby SC v Danglade (1928) 29 SR (NSW) 118. 82 In the present case, there is no wrongful act of the defendant in the strict sense. Under the modern law she is taken to have continued the nuisance though the problem may, as has been seen, be the product of the actionable non-feasance of others as well. 83 Indeed, the plaintiff in the present case seems to me to seek to extend the reach of the quia timet mandatory injunction to new areas. Here we have a case where, so far as property damage is concerned, the damage by falling rocks to the building would probably be only a matter of a thousand dollars or so yet the cost of work to minimise the risk of that damage ensuing could be a million dollars. The message in the cases as to granting mandatory orders only in clear cases and not granting injunctions in the auxiliary jurisdiction where damages can be quantified, tell against such extension. 84 Indeed, apart from Yared's case, where the application for injunction failed, I know of no case where such an order has been considered in a case such as the present. 85 Mr Cashion says that Dr Birch has missed the point of the litigation. He puts (the first submission) that the plaintiff complains of the tort committed by the defendant in continuing the nuisance. It only seeks relief in respect of that tort. Thus, the remedy is directed only to remedying the potential damage genuinely feared by the plaintiff. The fact, if it be the fact, that there has also been nuisance committed by the proprietor of 14 Osroy Avenue or that part of the global problem is the state of the cliff on the plaintiff's land are quite irrelevant. 86 Mr Cashion also puts (the second submission) that the plaintiff does not need any order in respect of its own land, it can do what it likes about that in its own time. All it seeks is that the defendant remedy the problem caused by her continuing the nuisance by doing work on her land. 87 The first submission at first appears sound. However, it leaves out of consideration s 35(1)(b) of the Civil Liability Act 2002 which provided that in an action for tort for damage to property where more than one person contributes to the damage a court must not give judgment against a defendant for more than her proportionate amount of the damage. 88 The effect of the Civil Liability Act was not argued before me, but I would consider that it precludes me from casting the whole of the cost of the remedial work on to the defendant. 89 The second submission ignores the obligation of the plaintiff at law to mitigate its damage and in equity to do equity. If the optimum solution to the problem of rocks falling on to the plaintiff's land is one which involves work on the plaintiff's land as well as on the defendant's land and the plaintiff is unwilling to do the work on its land, it may well be that, in the court's discretion, no quia timet mandatory order should be made. 90 In his final written submissions, Mr Cashion agreed that a staged approach to remediation may be the answer. 91 The experts cannot agree on the stages. Mr Shirley says that the whole of cliff approach is to be preferred, Mr Wilson focuses on the south west face. Mr Shirley suggests that the first stage is the erection of a substantial barrier. As he considers the erection of a barrier to be a matter for the plaintiff alone, he takes as the first step the clearing of vegetation on the defendant's part of the cliff face. 92 The clearing of the vegetation would be of some value in minimising the risk, but I am not at all satisfied that the degree of protection given by this action alone would be worth the cost. The costs on adjustment of Mr Shirley's figures would be in the vicinity of $ 85,000. 93 The plaintiff seeks to place the whole of the cost burden on the defendant. This cannot be done at common law, and I do not consider it appropriate to order it done in equity under the guise of a mandatory injunction. 94 I have come to this view because of a combination of factors, viz:

The work will solely benefit the plaintiff who appears to be making a nil contribution to the solution of the principal problem.

The lack of any active wrongdoing by the defendant .

My doubt as to whether the proposed action would make a practical difference in minimising the risk factor and that I do not consider that I can find on the evidence that this would be so. 95 To expand on these matters, according to well-established equitable principles, the hardship to the defendant which would result from a mandatory injunction ordering her to make a financial contribution, and the inconvenience to be suffered by permitting access to her property, are relevant discretionary factors; see Yared v Glenhurst Gardens Pty Ltd (2002) 10 BPR 19, 485 at [109]-[110], applying Redland Bricks Ltd v Morris [1970] AC 652. 96 The cost of remedying the flaws that exist in that part of the cliff which bounds the properties of the plaintiff and defendant, lies outside the scope of the defendant's duty to abate the nuisance caused by falling rocks. The defendant is not required to take all necessary steps to abate the nuisance in order to fulfil the duty to her neighbour, only those that are reasonable in the circumstances: see Yared at [107]-[108]. 97 The defendant, a widowed pensioner in old age, clearly lacks the financial means to be able to contribute to the cost of repair. On a broad estimate, the combined resources of the owners of the flats represented by the plaintiff in these proceedings, especially when viewed in relation to the defendant's resources, are significantly greater and therefore better able to absorb the financial burden. 98 I believe it follows from what I have said that I consider on the evidence that the only satisfactory solution is what has been called the whole of wall approach. I am not satisfied that anything short of this is likely to minimise the risk to any great extent. 99 However, I do not favour merely allowing the parties to remain in limbo until the next rock fall as Dr Birch seems to suggest. I consider that the plaintiff is entitled to some relief. 100 It is idle to make a declaration that a person has committed a tort when, realistically, what is sought is a quia timet injunction for the defendant's future conduct. 101 Again, an injunction that the defendant not commit any further nuisance is virtually meaningless. 102 However, the court must make it clear that the defendant has some obligation to deal with the problem. She is not entitled to sit back and say that the local council should fix the problem or that she is under no obligation to allow access to her land unless an indemnity is given. This is because she has a duty to co-operate in finding a solution to the problem which has occurred through her actionable non-feasance. 103 Although the defendant is a pensioner and she has not actively caused the problem and the order is for the sole benefit of the plaintiff, I consider that it is appropriate that she contribute some funds towards alleviating the problem. However, she is not to be charged with the whole of the costs. 104 The plaintiff is entitled to a declaration that the defendant is bound to use her best endeavours in co-operation with the plaintiff and others to find a reasonable solution to the problem of rocks and debris descending from the cliff face on to the plaintiff's land. 105 If the plaintiff were to convene a meeting of interested persons, I would consider that, consistently with the above declaration, the defendant should attend such meeting by herself or her representative and co-operate in seeking a solution. 106 Because I have reached the views stated above, it is unnecessary for me to consider any issues that might otherwise arise from the doctrine that it is not the practice of an equity court to make orders which require its constant supervision. However, if a regime can be worked out between the parties and other interested persons at the short minute stage, this matter may then require consideration. 107 I will stand over the matter for mention in the new term, say at 9:50am on Wednesday 31 January (or such other date as arranged by counsel with my Associate) to formulate the orders. 108 As neither side has been completely successful, it may be that the proper order is that each party pay their own costs to date. 109 It should also be noted by both parties that the court does not undertake a supervisory role in relation to the performance of the defendant's duty and the orders made. It is worth bearing in mind that the defendant is only required to act reasonably in relation to the degree of access and disturbance to be suffered in fulfilling her duty to abate the nuisance of falling rocks. It is therefore in the interests of both parties for the plaintiff to provide reasonable notice of a commencement and finish date, for the work to be undertaken over a reasonable period, at a reasonable time of the day and week.

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