Stereff v Rycen & Anor

PRINCIPAL AND AGENT - IN GENERAL - where the male and female defendants were husband and wife - where the male defendant committed trespass and nuisance on the plaintiffs land in the course of doing construction work on a common boundary - where the female defendant agreed with the male defendant's plan to do construction work - where the female defendant knew excavation would be involved - where the female defendant handed the project over to the male defendant - where the female defendant never directed the male defendant in the manner of the undertaking - where the female defendant never instructed the male defendant to encroach or trespass on the plaintiff's land - where the female defendant was not aware the male defendant had trespassed on the plaintiff's land until it was too late - whether the male defendant acted as the agent of the female defendant for the purpose of entering onto the plaintiff's land and for the purpose of dealing with the plaintiff or any other third party so as to make her a joint tortfeasor with him

DAMAGES - COMPENSATORY DAMAGES - whether the plaintiff is entitled to compensatory damages for the conduct of the defendants for trespass to his land, and nuisance for withdrawal of support from the land

DAMAGES - AGGRAVATED DAMAGES - where the male defendant intentionally caused an excavator operator to excavate on the plaintiff's land, without first advising the plaintiff - where the male defendant responded angrily and aggressively to the plaintiff's insistence that he cease encroaching on the land - where the plaintiff experienced feelings of violation as a result - where the male defendant removed further soil from the plaintiff's land after being told by the plaintiff to stop - where the male plaintiff committed a further trespass one month later by dumping soil on the plaintiff's land - where the male defendant again responded angrily and aggressively when he was told to stop - where the male defendant dumped further soil on the plaintiff's land after being told to stop - whether in these circumstances aggravated damages should be awarded

DAMAGES - EXEMPLARY DAMAGES - where the male defendant intentionally caused an excavator operator to excavate on the plaintiff's land, without first advising the plaintiff - where the male defendant responded angrily and aggressively to the plaintiff's insistence that he cease encroaching on the land - where the plaintiff experienced feelings of violation as a result - where the male defendant removed further soil from the plaintiff's land after being told by the plaintiff to stop - where the male plaintiff committed a further trespass one month later by dumping soil on the plaintiff's land - where the male defendant again responded angrily and aggressively when he was told to stop - where the male defendant dumped further soil on the plaintiff's land after being told to stop - whether in these circumstances exemplary damages should be awarded

Uniform Civil Procedure Rules 1999 (Qld) r 149, r 150, r 155(4), r 157, r 161(1), r 166, r 367, r 375, r 376, r 444

Limitation of Actions Act 1974 (Qld) s 10(a)(a)

Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprenticeship/Traineeships Scheme Ltd [2008] QCA 100, applied

Ballesteros v Chidlow No. 2 [2005] QSC 285, applied

Coco v The Queen (1994) 174 CLR 427, cited

Coleman v Watson & Shaw & Anor [2007] QSC 343, applied

Costi v Minister of Education (1973) SASR 331, distinguished

Dunn & Anor v Howard & Anor [2001] QDC 030, cited

Fontin v Katapodis [1962] HCA 61; (1962) 108 CLR 1, cited

Georgeski v Owners Corporation Sp 49833 [2004] NSWSC 1096, cited

Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1, cited

Grove v Purvis [2003] QDC 151

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, cited

Jones v Llanrwst Urban District Council [1911] 1 Ch 393, applied

Lamb v Cotongo [1987] HCA 47; (1987) 164 CLR 1, cited

Lockwood Buildings v Trust Bank [1995] 1 NZLR 22, applied

Mayfair Property Company v Johnston [1894] 1 Ch 508, cited

Meredith v Paloncam Pty Ltd & Anor [2000] QCA 113, cited

Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91, cited

Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, cited

Pollack v Volpato [1973] 1 NSWLR 653, cited

Port Stephens Shire Council & Anor v Tellamist Pty Ltd [2004] NSWCA 353, applied

Proprietors of the Centre BUP No. 343 v Bourne [1984] 1 Qd R 613, cited

Seabrook v Allianz Australia Insurance Limited & Ors [2005] QCA 58, cited

Rodrigues v Ufton (1894) VLR 539, distinguished

TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, applied

Thiess Pty Ltd v FFE Minerals Australia Pty Ltd [2007] QSC 209, applied

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 16; 79 ALJR 129; 211 ALR 342, cited

Traian v Ware [1957] VicRp 28; [1957] VR 200, cited

Trend Management Ltd v Borg [1996] NSWSC 588, cited

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, cited

**[1] At all material times the plaintiff was the owner of Lot 298 on RP 617760 County of Clinton, Parish of Gladstone, being a residential property situated at 6 Beech Avenue, Gladstone; and the defendants[1] were the owners of Lot 297 on RP 617760 County of Clinton, Parish of Gladstone, being a residential property situated at 4 Beech Avenue, Gladstone. There was a common boundary between their land, which consisted of a slope from the plaintiff's land down to the defendant's land. This is the "dispute boundary" in relation to these proceedings.

[2] On 11 August 2005, the plaintiff commenced the proceedings claiming damages for trespass to land and nuisance, together with exemplary damages; an injunction requiring the defendants to construct an appropriate retaining wall to prevent continuing nuisance upon the plaintiff's land by removal of the earth causing a loss of lateral support to that land; interest; and costs.[2] The application for the injunction was not pursued in the proceedings before me.

[3] The plaintiff purchased the property at 6 Beech Avenue in 1999. He has never resided in the house on the property. He kept the house for rental purposes.[3] It had been regularly occupied by tenants until the events occurred which gave rise to these proceedings. He estimated that before this, the occupancy rate was about 95%.[4]

[4] The defendants purchased the property at 4 Beech Avenue in 2002 as joint owners. They let their property to tenants until December 2003.

[5] From the time of the plaintiff's purchase of 6 Beech Avenue,[5] there was a freestanding bluestone rock wall which was believed to be the common boundary with 4 Beech Avenue. The plaintiff described this as a wall of boulders, and testified that it occupied about four-fifths of the length of the boundary.[6] Photographs of that wall taken by Ms Rycen on 7 February 2004 form Exhibit 20.

[6] According to the plaintiff, there were four trees on the embankment between the rock wall and the paling fence near his house on the top of the embankment. These were an oleander bush, two hibiscus bushes and an umbrella or rubber tree.[7] He thought these were useful and attractive, particularly the oleander bush which had flowers almost all year round. He estimated it was six to seven feet high and close to three metres in diameter; and the hibiscus was about five and a half feet high and about a metre to a metre and a half in diameter.[8] These are represented on an "Original Plan View" that he prepared to show his recollection of the boundary prior to the commencement of the works which give rise to this dispute.[9]

[7] In or about October 2003, Mr Rycen approached the plaintiff with the proposition to construct a retaining wall upon the common boundary. He expressed the view that he wished to construct a coppers log retaining wall. The plaintiff disagreed with this and expressed his view that he wished a besser brick and concrete retaining wall to be constructed. Despite several negotiations, they could not reach agreement as to the appropriate form of retaining wall.[10]

[8] The plaintiff's evidence about this was:[11]**

"His proposal was that I come in halves with them to build a two metre high Koppers log wall. My reply to that was that I wasn't confident of a Koppers height - Koppers log wall being that good, I preferred a besser block brick wall. We spoke for some time about different other types of walls, like sleeper walls and such like. We concluded the conversation saying that I would go out - he offered a - a price of the Koppers log wall and best of my recollection was round about $6,000. I said, oh well, for comparison I would go out and get a rough idea how much a besser block brick wall would cost because I preferred to put something in that was exactly the same as already there, extended it along and - for permanency."

**This reference to putting in something the same as was already there was to a besser block retaining wall at the back of the plaintiff's property. It is marked as the "Existing Besser Block Brick Wall" on Exhibit 4.

[9] The plaintiff's evidence was that he told Mr Rycen that due to the costs involved, he would prefer to save up the money and do it in the next financial year.[12] That is the year commencing on 1 July 2004.

[10] He said that when he advised the cost of constructing a besser brick wall would be approximately $10,000, Mr Rycen made a further proposal, which he did not accept. This proposal included excavating out his land from the level of Mr Rycen's land for a distance of approximately three metres to the paling fence. He also said that they agreed it would be reasonable to assume that the dispute boundary ran from halfway between the two water metres at the front of their properties to the corner of the besser block wall at the back of his property. The water metres are also marked on Exhibit 4.[13]

[11] The plaintiff said that while these conversations were reasonably friendly, Mr Rycen remained quite insistent that he wanted a coppers log wall. The plaintiff inferred there were cheaper ways to build a besser block wall using second classification bricks. However, no agreement was reached.[14]

[12] In paragraph 6 of the defence, the following facts are relied upon, with reference to these discussions to show that the plaintiff has not established a cause of action in trespass or nuisance:**

"(a) The defendants purchased their property in 2002. Up until December 2003 the defendants let their property to tenants.

(b) At the time of purchasing the property the defendants believed the boundary between it and the plaintiff's property was marked by a fence which they later discovered was several metres inside the plaintiff's boundary.

(c) It was not until the defendants had their boundaries surveyed on 12 January 2004 that they discovered the location of the true boundary between the plaintiff's and the defendants' property.

(d) In or about October 2003 the male defendant telephoned the plaintiff to come to an agreement to have the sloping area cleaned up. Because it was a very steep grade of about 60 degrees it was very hard to maintain and it was overgrown with bushes and thick grass a metre high. Up until this time the area in question was a 'no mans land' and was maintained in a limited fashion by the defendants' tenants.

(e) During the same telephone conversation the male defendant raised the question of the supporting wall which was about 1.3m high and composed of large rocks measuring a third to half a metre in diameter.

(f) The defendants had tenants in their property at the time of the telephone conversation and they had complained that rocks were coming loose and falling. The rocks were potentially quite dangerous to children, and the male defendant explained to the plaintiff in the first telephone conversation that something needed to be done about them.

(g) In the first conversation no agreement was reached either in relation to the cleaning up of the area or the construction of a new retaining wall. The plaintiff simply stated to the male defendant his preference for a rock block retaining wall.

(h) In or about November 2003 the male defendant again telephoned the plaintiff regarding the construction of a retaining wall in place of the freestanding rock retaining wall but still no agreement was reached."

**[13] Mr Rycen's evidence was that from the start of their conversations about this issue, the plaintiff wanted what he described as a "two metre rock block wall" to bring it up to the level of the rest of his land. He said his response to the plaintiff at this stage was, "fair enough, we'll work something out about that later". He also said that after his grandchildren had been playing around the loose rocks at Christmas time, he made the phone call to the plaintiff in which he said that something needed to be done about this, and the plaintiff's answer was the same. His response to the plaintiff was, "we're going to have to do something".[15] However, contrary to this, he agreed in cross-examination that he never raised any question of the wall being dangerous until well after the work the subject of these proceedings had commenced.[16]

[14] As a result, at the time of the first act of trespass and nuisance, which is alleged to have occurred on 20 January 2004, the position between the plaintiff and Mr Rycen with reference to the dispute boundary is summarised in the following passage of cross-examination of Mr Rycen:[17]**

"MR CROW: Now, you accept, don't you, that in the October of 2003 or thereabouts there were a serious [sic] of discussions between yourself and Peter Stereff about - about doing something on the - one of the area between the properties?-- That's correct.

I think you've told us that he was resolute that he wanted a - a rock block wall built?-- Hmm-mmm.

And you were equally resolute that you wanted a Koppers - Koppers log wall built?-- That's correct.

And you accept, don't you, that immediately behind you or behind where the area was, there was already an existing rock block wall?-- Yeah.

And you accept that you two gentlemen, couldn't agree, could you, what sort of wall was to be constructed?-- No."

**It is clear the plaintiff had not authorised Mr Rycen to enter or excavate on his land in respect of anything that he may have decided to do concerning the dispute boundary.

[15] The plaintiff's evidence is that his next involvement with this matter was to receive telephone messages ,which were left with his mother and sister on 19 January 2004, that it was extremely urgent he meet the defendant the next day.[18] This is consistent with Mr Rycen's evidence that he tried ringing him on that date about the rubber tree.[19]

[16] When the plaintiff attended at his property with his father, Mr Iwan Stereff, on 20 January 2004 he observed that earthmoving equipment had cut into it.[20] He alleges that:[21]**

"The male Defendant had used earthmoving equipment to remove a large amount of embankment on the Plaintiff's land causing the cut to exceed one metre into the Plaintiff's land from the common boundary. In doing so, the male Defendant had removed three bushes from the Plaintiff's land. The male Defendant performed the above work without the knowledge and without the consent of the Plaintiff. At that stage the male Defendant had removed earth and other material from the Plaintiff's land up to a distance of one metre from the common boundary however there was still approximately 4 metres of the existing wall of boulders formerly constituting the area of the boundary between the common properties."

[17] In relation to this, in paragraph 6 of the defence, the following facts were relied upon to show the plaintiff had not established a cause of action in trespass and nuisance:[22]

"i) In early January 2004 the defendants came to an agreement with their neighbour on the other side of their property (the western side) to build a retaining wall of coppers logs on that side and the defendants decided at the same time to remove the rocks on the dispute boundary and brace the slope with coppers logs.

1. The defendants hired a contractor with an excavator to do both jobs. The job on the western boundary was completed first and then the contractor immediately moved to the dispute boundary with his excavator.

2. Before beginning to work on the dispute boundary the male defendant marked out what he believed to be the boundary line (which had previously been identified by survey) so as to ensure that the coppers log retaining wall was constructed on the defendants' land.

1. The excavator contractor began work on the dispute boundary by removing the freestanding rocks and then began to excavate on the defendants' side of the boundary line. As he did so the soil on the plaintiff's land began to crumble and fall away into the excavator.

1. It was immediately obvious that the subsidence of the soil would make it impossible to construct the retaining wall, so the male defendant authorised the excavation contractor to take a small amount of extra soil from what he believed to be the plaintiff's land genuinely believing that the plaintiff would have no objection to this because:

• the male defendant had intended to replace the soil immediately the retaining wall was constructed;
  • the encroachment was insignificant (especially having regard to the fact that the sloping area had formerly been a "no man's land" under the control of the tenants of the defendant's property; and
  • the retaining wall was to be constructed on the defendant's side of the boundary at no cost to the plaintiff."

**[18] Paragraph 6(m) of the defence is a concession that Mr Rycen committed trespass. This is also conceded by Mr Appleton in his submission on behalf of the defendants.[23] Under cross-examination, Mr Rycen said he had never disputed that the excavator worked on the plaintiff's side of the boundary and that this was his fault.[24]

[19] During the hearing, Mr Rycen gave evidence that:[25]**

"I had the machinery there and I'd ask their - block with the excavator, I said, 'Just' - 'We'll run along the boundary here and clean it up and we can do something with the boundary, all the loose rocks."

**[20] In accordance with the amended defence, he gave evidence that this happened before he got the survey done.[26] This is a reference to the survey which was conducted on 12 January 2004, as asserted in paragraph 6(c) of the defence. There was evidence from Mr McNee, who was responsible for the survey, that it was commenced on this date, with the marks being placed on the following day.[27] Mr Rycen's evidence-in-chief was that the excavation was done on 6 or 7 January 2009.[28] He said that he marked out the boundary line halfway between the two water metres to the peg mark in the back wall with chalk and gave the excavator full reign to dig out along that line.[29] He said they realised they had gone over into the plaintiff's land by probably a metre or three-quarters of a metre. He denied this was intentional.[30] Although he knew the contractor who drove the excavator,[31] he was never called as a witness.

[21] An issue which arises for determination is whether this excavation was carried out prior to Mr McNee's survey. As indicated, the original defence in paragraph 6(k) was expressly to the effect that it had been. The determination of this issue is central to an assessment of Mr Rycen's credibility and reliability as a witness. In addressing this issue, it is relevant that in cross-examination of Mr Rycen, with reference to their conversation after the plaintiff had attended the property on 20 January 2004 and made his observations of the excavation, there was the following exchange:[32]**

"And you said to him words to the effect, 'I had to go ahead, I've been trying all December to contact you and you never got back to me. The reason I had to go ahead was I considered the wall was a safety risk. I had to start yesterday.' That's what you said, didn't you?-- I probably did, yes." (my emphasis)

**In context, the reference to having to start yesterday is to 19 January 2004, which is subsequent to the placing of the survey marks.

[22] The plaintiff alleges that having made these observations:[33]**

"[He] expressed his disgust at the male Defendant acting in the manner he did by cutting into the Plaintiff's land with earthmoving equipment without the Plaintiff's knowledge and consent and requested of the male Defendant on several occasions to stop performing the work. The male Defendant refused to stop the excavator contractor from operating the earthmoving equipment and continued to excavate the remaining 4 metres of wall of boulders. In this conversation the male Defendant was offensive and used abusive language."

**[23] Mr Rycen accepts that while the excavation work was in progress, the plaintiff approached him and insisted he cease encroaching on the land. However, he asserts that he immediately instructed the excavator operator not to encroach and no further encroachments were made.[34]

[24] Consistent with Mr Rycen's evidence that he had phoned the plaintiff on the previous date about the removal of the rubber tree, he told the plaintiff he wanted to talk to him about removing this remaining tree.[35]

[25] The plaintiff's evidence was that during the conversation which followed, Mr Rycen became "reasonably agitated and abusive".[36] He described Mr Rycen as "quite angry".[37] Mr Rycen accepted that he may have been aggressive in voice.[38] He accepted he swore and probably said "fucking" on a few occasions because he was upset. He did not know if the plaintiff swore at him, but said that the plaintiff's father did not.[39] He thought that both he and the plaintiff acted badly.[40] His response to the question "you swore at him on many occasions?" was, "I was in my yard, mate. If somebody's yelling at you what would you do?".[41] He denied the suggestion that the plaintiff did not yell at him on any occasion.[42]

[26] Mr Rycen accepted that he could have told the plaintiff he was "fucking doing you a favour".[43] He also accepted that he said he had legal advice and council advice that he could do what he wanted, but he said he added that this was in relation to his side of the boundary.[44]

[27] The plaintiff said the conversation included:[45]**

"And I said to him, 'Well, you're entitled to do with the machinery whatever you want on your side of the land but leave my side of the land alone. You're entitled to clean up the mess or do whatever you want on your side; I've got no say in that matter.' I insisted on him to leave my side of the land alone, you know. And I said, 'Look' - and he became quite angry again and explosive and I tried to calm him down by saying, 'Look, I'm not saying I'm not interested in building a Besser block brick wall or any type of retaining wall, all I'm saying is that we should sit back, write down on paper what we should - how we should proceed from here, what your proposal is, what my proposal is, come to an agreement, put it down on paper and we both sign it.' And he started getting abusive again and he's not signing anything."

**He added that Mr Rycen kept on saying he was "not fucking signing anything."[46]

[28] Mr Rycen accepted that the plaintiff told him to stop work and not to do anything else until there was a written agreement as to what would occur.[47] He also accepted that the plaintiff said, "You can do whatever you like on your side of the boundary just leave my side alone".[48]

[29] As a result the plaintiff said that while he supposed that "maybe violated is too strong a word", he felt annoyed, angry and confused about where Mr Rycen's attitude was coming from because he thought he was using a reasonable approach and was not being abusive towards him.[49] As a result he asserts in his claim:[50]**

"The male Defendant's behaviour was malicious and done out of spite toward the Plaintiff with the intention of humiliating the Plaintiff and injuring his proper feelings and dignity and pride and causing him to be held in ridicule and contempt before his father who was present."

**This allegation is denied by the defendants.[51]

[30] When the plaintiff left his property with his father on that day, the state of the excavation is described by him as extending from approximately the water meters at the front to about the remaining four metres of rock wall. He described the excavation as extending 600 to 800 millimetres from the boundary towards his house on a rough estimate.[52] The plaintiff's father described the embankment being freshly dug up, about a metre beyond the boundary on the slope.[53] As a fruit farmer of 40 years' experience, he estimated the soil had been dug up for no longer than a day.[54] He also said that the excavation stopped about four metres short of the besser block wall at the back.[55] As indicated, he was not the subject of cross-examination.

[31] The plaintiff's evidence was that he spoke with Mr Rycen again on the same date, and had the following conversation:[56]**

"At that time when I spoke to him I reiterated again, I said, 'I sought legal advice and they've informed me that what you're doing is wrong.' Which he then exploded and said, 'How dare you go behind my back. If you wanted to go see a solicitor you should have taken me along and we could have sorted things out there and then but you've gone behind my back so be blowed with you I'm going to do whatever I want and I'm going to put up a Koppers log wall and dump everything in behind it.'"

**Mr Rycen did not deny that a further conversation of this nature occurred on this date. However, his evidence was that he would have said, "Why didn't we both go and see him?", and any response about doing what he liked would have been in the context of doing this on his side of the boundary.[57]

[32] The plaintiff gave evidence that on his way to work at 5.30 to 6 am on 21 January 2004 he again attended at his property. At this time he saw the remaining four metres of the rock retaining wall was gone.[58] The plaintiff's father gave unchallenged evidence that he attended the property the following afternoon, at which time the rest of the soil had been removed up to the besser block wall at the back.[59] As a result, the plaintiff asserts that the digging continued after he left on the previous afternoon.[60] He prepared a "Current Plan View"[61] to indicate the extent of the excavation which he estimated was done by Mr Rycen until that time. This shows that in his estimate there was further excavation into his property in conjunction with removing the remaining rocks. He also took photographs that morning to document this.[62] With the use of a tape measure which appears in the photographs, he estimated that the excavation continued into his property about two and a half to three feet from the dispute boundary.[63]

[33] Mr Rycen did not deny that the remaining part of the rock wall was removed. He believed he did this himself either in the next few days or when he was building the coppers log wall.[64] However, he also conceded that, because he was very upset after the confrontation with the plaintiff on 20 January 2004, he could have removed the remaining rocks that afternoon.[65] He also appeared not to exclude that this was done by the excavator, as demonstrated by the following exchange in cross-examination:[66]**

"I'm putting to you that on the ... afternoon of the 20th of January 2004 the excavator came again and removed the last four to - four-odd metres - four to five metres of remaining embankment?-- All he did was clean it up if he did do it."

**Although he responded to me shortly afterwards that he did not recall the excavator doing this,[67] it appears he may have been referring to the excavator tidying up after he had dismantled the remaining part of the rock wall with a shovel.[68]

[34] On 4 February 2004 the plaintiff, having not received any written proposals from Mr Rycen about what he would envisage happening on the dispute boundary, wrote to him proposing two options to find a satisfactory solution.[69] A response was sought within seven days. It was delivered on 6 February 2004.[70] Mr Rycen agreed that he received and signed for this letter but did not respond to it.[71]

[35] On 20 February 2004, on the plaintiff's instructions, his solicitor, Mr Goodwin, wrote to Mr Rycen. After noting that there had been no response to the plaintiff's letter, it was stated:[72]**

"You are hereby notified that unless as [sic] satisfactory arrangement is entered into within seven (7) days application will be made to the court for an injunction restraining you from further work, together with an order for costs.

In addition an order will be requested that you restore the property to its previous condition.

You should know that the work you have undertaken to date has been entirely without our client's approval. Indeed you have not so much as consulted him as to your intentions. The work you have commenced represents a nuisance and trespass and entitles our client to various legal remedies including damages by way of compensation.

In the event of extreme weather conditions occurring before satisfactory remedy our client notifies you that he has fears of substantial damage being caused to his house property which may be undermined by your excavation works.

Our client has no wish to allow this matter to become a cause of friction between you however he has also no intention of allowing you to continue without prior consultation and approval.

We urge you to respond to this letter immediately or at least to seek independent legal advice with a request to your lawyers to make contact with us urgently." (my emphasis)

**It was also stated that Option (A), which had been notified in the previous letter, was no longer available.[73] Mr Rycen confirmed he received this letter, but did not know when he did so.[74]

[36] It is unlikely to have been received when the plaintiff visited his property with his father on 21 February 2004. On this occasion, the plaintiff alleges that:[75]**

"The male Defendant, having erected several copper log posts on the Defendant's side of the common boundary, proceeded to dump loose soil behind the copper log fence thus committing further trespass upon the Plaintiff's land. The Plaintiff approached the Defendant and asked him to stop dumping loose soil upon his land. Despite the Plaintiff's request, the male Defendant continued to operate a small earth moving machine (a Dingo) and continued to deposit loose soil onto the Plaintiff's land."

[37] The plaintiff also alleges that:[76]

"Further, the male Defendant became very abusive towards the Plaintiff and the Plaintiff's father (by calling the Plaintiff's father an idiot). Despite being asked to desist from continuing to place loose soil upon the Plaintiff's land, the male Defendant did not desist. The Plaintiff therefore called the Police whilst the male Defendant continued to place lose soil upon the Plaintiff's land."

[38] In relation to this, in paragraph 6 of the defence, the following facts are relied upon to show that the plaintiff has not established a cause of action in trespass or nuisance:

"q) On about 21 February 2004 the male defendant, having completed the construction of the coppers log retaining wall and having hired a 'dingo', proceeded to back fill the excavation behind the retaining wall.

1. The plaintiff approached the male defendant on 21 February 2004 and insisted that he immediately cease filling behind the retaining wall and the male defendant immediately ceased to do so."

**[39] The defendants deny the allegations set out in paragraph [37].[77]

[40] Paragraph 6(q) of the defence is a concession that Mr Rycen committed trespass. Mr Appleton's concession in his submissions is wide enough to cover this.[78]

[41] The plaintiff's evidence was that Mr Rycen had erected the upright coppers logs on his property and had started putting horizontal logs behind them. As he put the horizontal logs up, he was backfilling behind them by dumping soil on his land. He and his father went to where Mr Rycen was and asked him to stop.[79] He thought they both asked Mr Rycen to stop two or three times, but about three loads were still dumped on his land.[80]

[42] Consistent with the defence, Mr Rycen accepted that he decided to dump about half a wheel barrowful of soil over the logs, in order to hold them there. He said that he "probably did about three of them" before the plaintiff and his father came outside and told him to stop.[81] Also consistent with the defence, his evidence-in-chief was that he stoped dumping soil there when he was told to do so.[82] However, he contradicted this in cross-examination as follows:[83]**

"In any event, some of the - one of the Stereff gentlemen told you to stop?-- That's correct.

Now, after you were told to stop you continued to dump loads across, didn't you?-- Mm-hmm.

You dumped another two or three loads across?-- Another two, yeah."

**[43] Photographs taken by the plaintiff on the following day demonstrate the extent of the excavation along the dispute boundary, the stage of construction of the coppers log fence and the backfill on the plaintiff's property.[84] The plaintiff's evidence was that it was not clean backfill, but was full of rubbish.[85] The photographs also show that the last little bit of the rock wall had been removed.[86]

[44] The plaintiff's evidence was that at one stage the Dingo was on his side of the boundary.[87] However, not only does Mr Rycen deny this,[88] but so does the plaintiff's father.[89] The reasons that each gave for this was that it could not enter the plaintiff's property because the coppers log fence was in the road. Therefore, I proceed on the basis that although, as the plaintiff's father confirmed, the machine came right up to the boundary,[90] the wheels did not come onto the plaintiff's land. On the other hand, as he also said, the bucket had to be at least half a metre over the boundary to dump the soil.[91]

[45] The plaintiff's evidence was that during the conversation with Mr Rycen on this date, it was necessary for them to shout at each other over the noise of the Dingo.[92] His evidence was that things started getting a bit heated and Mr Rycen told his father to "fucking piss off".[93] He said that as Mr Rycen said this, the Dingo swerved around so that he believed there was a possible danger to his father.[94] Mr Rycen's evidence was that he said, "Fuck off, Iwan, it's got nothing to do with you." He accepted that he said to the plaintiff and his father that he was doing exactly what the plaintiff wanted in his letter, to which the plaintiff replied, "That's not what I wanted, I want the work carried out by a professional."[95]

[46] Mr Rycen's evidence was that he was backfilling on the plaintiff's land to stabilise it. He said the ultimate goal was to make it safe and easy to maintain by allowing the grass to grow back. His intention was to use a wacker packer to pack it down if it didn't settle.[96]

[47] The plaintiff said that he was going to get the police.[97] His evidence was that other than the swearing identified in paragraph [45] there was no other swearing and abuse by Mr Rycen before this. However, he said that Mr Rycen was "quite loud, he was quite angry and he was getting quite agitated and irritated about it all."[98] The plaintiff's father said:[99]**

"He never stopped the machine and - and - not until the police arrived, so - so to have a conversation you had to more or less shout see and vice versa. He - he - he kept on shouting and - and, as I say, he was - his whole body language - and his whole action, I found it very - very, very aggressive."

**Mr Rycen accepted that there was "quite a heated discussion".[100]

[48] The plaintiff gave evidence that when he said he was going to get the police, Mr Rycen said, "He doesn't care whether we get [them], he's got the right to do whatever he wants. He's got permission to do this. So he continued working as we were leaving to go and get the police".[101] Mr Rycen's evidence was that he said, "I've got council approval I can build a wall anything up to 1 metre high without council approval".[102]

[49] After leaving the property, the plaintiff contacted the police, who had arrived at the property by the time he returned with his father. He could not say whether any more soil had been dropped behind the wall during the period he had been away.[103] The police stayed at the property for a period. During this time they informed the plaintiff that this was a civil matter, and they were there to try to keep the peace.[104]

[50] The plaintiff and his father gave evidence that Mr Rycen called the father an "idiot". According to the plaintiff's father, this was when the police were there.[105] Mr Rycen accepted that he had said this by pointing at both the plaintiff and his father when they were together.[106] He accepted that a police officer may have told him to mind his language at this point.[107]

[51] The plaintiff's father said he was very much offended by being called an idiot in public in front of the police officers.[108] The plaintiff said he was "pretty upset" about the way his father was treated, and was "quite angry, frustrated".[109]

[52] Mr Rycen said that he was angry but not aggressive.[110] He denied threatening or abusing them, and did not think it was abuse to call someone an idiot.[111] He denies the plaintiff's assertion that, as with the 20 January 2004 incident, his behaviour was malicious and done out of spite towards the plaintiff with the intention of humiliating the plaintiff and injuring his proper feelings and dignity, and causing him to be held in ridicule and contempt before his father.[112]

[53] The plaintiff took further photographs of the properties on 25 February 2004[113] and 20 July 2004.[114]

[54] The photographs of 25 February 2004 show the excavation at the front of the plaintiff's property,[115] the copper's log fence, one of the oleanders which had been chopped out,[116] and the backfill on his property.[117]

[55] The photographs of 20 July 2004 particularly show cladding which had been nailed to the uprights above the coppers logs. The plaintiff suggested that someone would have had to come into his property to nail the cladding up, as well as to nail the horizontal logs to the uprights. However, he conceded it was possible they could have been nailed from the other side.[118] Mr Rycen denies that he entered the plaintiff's property to do this. He says that he screwed them over the top.[119]

[56] The 20 July 2004 photos also show safety bunting put up by the plaintiff on his side of the dispute boundary. He said that he did this to make it as safe as possible.[120] He was asked by me how the area of his property abutting the coppers log fence varied from the way it was before the work was done. He responded:[121]**

"The area was excavated out so it became unstable, there was no support. There were - there was probably like stress fractures starting to appear. If you can imagine, your Honour, a glacier? The front of the glacier you've got kind of a cliff face, and as the glacier grows you get stress cracks appearing back from the face and eventually they start to fall forward and it falls over and that's the type of soil that was having the soil there. The oleander bush covered that area, along with the other bushes. I had engaged - tried to engage contractors at one stage to clean it up. They refused 'cause it was too dangerous."

[57] He said that slowly but surely everything would fall in because support had been removed from the soil.[122] His evidence was that subsidence happens gradually,[123] and is not prevented by just backfilling and compacting soil.[124] He said the coppers log retaining wall would never have stood up to anything.[125] His position is emphasised by the following exchange during cross-examination:[126]

"We'll have to disagree about that, but I put it to you that the retaining wall, such as it was, may not have been - may not have been permanent - permanently satisfactory, but it was at least temporary?-- It was collapsing under its own weight. You can see that the posts were moving around on - on its own weight, never mind something behind it. So, I'd have to disagree with your disagreement, if that makes sense?"

[58] Consistent with this, the plaintiff alleges in his statement of claim that:

"13. By reason of the excavation of the trench preformed [sic] by the male Defendant, the natural support of the Plaintiff's land has been withdrawn causing part of the Plaintiff's land to subside into the excavation.

1. As a result of such subsidence, the fence constructed on the Plaintiff's land and the Plaintiff's house is at risk of collapse."

**[59] In relation to paragraph 13, the defendants admit that the natural support of the plaintiff's land was withdrawn and that some of that land had subsided into the excavation, but they say this is minimal and they have always been ready, willing and able to fill in the excavation to a good workmanlike standard.[127] They allege that the plaintiff has prevented them from doing this.[128]

[60] In relation to paragraph 14, the defendants deny the plaintiff's fence and house are at risk of collapse from the excavation - at least not in this century.[129]

[61] As a result of his concerns, the plaintiff obtained quotes from builders for the erection of a retaining wall. The quote relied on in the Statement of Claim as the cost to rectify the damage allegedly caused by Mr Rycen, is from Bob Ryan's Home Improvements Pty Ltd dated 14 February 2005 for $16,632. The plaintiff alleges that he has suffered damages in this amount.[130] I note that this quote was for the supply and construction of a two-metre high retaining wall.[131]

[62] A quote dated 16 January 2005 was also obtained by the plaintiff from Keyworth Builders to build an approximately two metre-high besser block retaining wall.[132]

[63] The plaintiff provided copies of these quotes to Mr Rycen without an agreement being reached about how to rectify the problem concerning the dispute boundary.[133]

[64] Mr Rundle, a surveyor of many years' experience, was engaged by the plaintiff to survey his property. As a result, he prepared a survey plan dated 23 December 2005.[134] He estimated, on the basis of photograph 1 of Exhibit 12, that the excavation into the plaintiff's property was of the order of a metre.[135]

[65] On 8 March 2006, the plaintiff's solicitors issued a Notice to Fence to Mr and Mrs Rycen under the Dividing Fences Act 1953, requiring them to contribute to the construction of a fence for the common boundary between their properties. It was proposed that this fence be constructed in accordance with a quotation from Keyworth Builders dated 9 January 2006 for $19,980. The kind of fence proposed was a 1500 mm high batten top paling fence, with two pine rails on top of a 2 metre high masonry brick wall.[136]

[66] On 29 November 2006 the Gladstone Magistrates Court made an order that a dividing fence was to be erected on the common boundary. It was ordered that it was to be constructed of besser block to a height level with the fall of the embankment, with a steel mesh fence situated on top, and that Mr and Mrs Rycen pay half the cost.[137]

[67] This fence was erected and the coppers log fence dismantled.[138] The cost of constructing this wall was $24,814.[139] The plaintiff said that Mr and Mrs Rycen disputed these costs on the basis that the costs of the wall built on his side were included. As a result, another action was required to get the money, after which $9,500 was paid.[140]

[68] Mr Rycen confirmed they believed that the claim for half of $24,814 was for a two metre wall. As a result, the plaintiff took the matter back to court. The plaintiff accepted their offer of a payment of $9,500.

[69] The plaintiff' said that he found the dispute extremely frustrating. He was concerned where he stood for insurance purposes with his house as a result of subsidence, for his tenants and the public if they hurt themselves. He could see no clear cut solution. As a result, he had sleepless nights, developed weight gains and losses, and developed teeth grinding some time after 2004/2005 for which he required treatment, which cost him $3,000 - $4,000.[141]

[70] In these circumstances, the plaintiff alleges:[142]**

"By reason of the matters aforesaid, the Plaintiff has been subject to humiliation and suffered mental anguish and stress and has suffered loss and damage."

**[71] The defendants do not admit this allegation and say that the facts and circumstances are not such as to cause a reasonable person to suffer humiliation and mental anguish or stress.[143]

[72] At the time of giving evidence Mr Rycen was a 57-year-old railway driver, having worked 38 years for the railways. His gross yearly income was $80,000.[144] This is a base salary of $60,000 which is built up with overtime.[145] He also had a trade qualification as a boilermaker when he was young.[146]

[73] At one stage he and his wife had two houses which they had purchased, subject to a mortgage. They had rented the house at Beech Avenue to tenants, while they lived in the other house. They sold the house they had been living in. They did not pay the proceeds of sale towards the Beech Avenue mortgage, but used them to help out their children.[147] They owed $220,000 on the Beech Avenue mortgage.[148]

[74] They own a car and a boat.[149] The boat is a little tinnie worth $6,000.[150] They have no savings other than $150,000 or $160,000 superannuation.[151]

[75] Mr Rycen thought that his compulsory retirement age was 65 years. He had not worked since a work related accident in October 2008, for which he had a shoulder reconstruction operation on 30 April 2009.[152] It has been suggested he would be unable to work for six months, during which time he would be on workers' compensation benefits. He did not know whether he would be bringing a personal injury claim in respect of this injury, although he had not ruled this out.[153] He did not have a bank of sick leave because he had also been off work because of prostate cancer, with which he had been diagnosed four years previously. He described himself as, "still hanging in there, literally".[154]

[76] He said that Mrs Rycen was employed part time, earning about $300 for 20 hours' work weekly.[155]

[77] Mrs Rycen gave evidence in relation to the issue of whether Mr Rycen acted as her agent. This is denied in the defence on the following basis:[156]**

"The female defendant knew and approved of the male defendant's plan to do certain construction work on the boundary between the plaintiff's land and the defendant's land (the dispute boundary) but she did not appoint him as her agent for the purpose of dealing with the Plaintiff or any other third party, or for the purpose of entering onto the plaintiff's land."

[78] Mrs Rycen said that she and her husband were the joint owners of the 4 Beech Avenue property. She said they had the western wall done and they were going to do something about the dispute boundary side because of the boulders. Her evidence was that her husband was going to do a coppers log wall there. She said she "agreed with him to do whatever he wanted to do" because she thought it was their land.[157] She also gave evidence that:[158]

• she did not have any further involvement in it, because "that was men's business"
• she never directed him in the manner of the undertaking
• she never instructed him to encroach or trespass on the plaintiff's land.

**She said that she was not aware he had trespassed on the plaintiff's land "until too late".[159]

[79] Under cross-examination she said that she "basically just handed the project over to" her husband.[160] She said that if he wanted to engage a contractor, "he just done it. He doesn't have to consult me".[161] Her evidence was that she did not know who the excavating contractor was. She did not pay this contractor. This was left to her husband, who paid him in cash without any written contracts.[162] She knew that Mr McNee had surveyed their property and given them survey documents. These documents were in, "like my filing cabinet".[163] She saw no plan drawn up by her husband of what he was going to construct. He just told her that it was going to be a coppers log wall.[164]

[80] As a result of Mr Rycen's actions, it is alleged the defendants and/or Mr Rycen have trespassed upon the plaintiff's land on no less than two occasions and caused nuisance to his land by the withdrawal of support; and that as a result, the plaintiff has suffered damages as follows:[165]**

Cost to rectify damage caused by male Defendant (full particulars of which are contained in the quote of Bob Ryan's Home Improvements Pty Ltd dated 14 February 2005

Damages for trespass to land and removal of soil

The plaintiff also claims interest at 10% per annum to the date of judgment.[166] In the plaintiff's written "Submissions in Reply", in relation to paragraphs 15(a) and 15(d), the plaintiff says he is claiming $16,632; alternatively, the claim is for the difference between the sum of $24,814 he paid Keyworth builders to construct the retaining wall less the sum of $9,500 received from the defendants (i.e. $15,314); and in the further alternative, the sum of $10,000 in diminution of the land value.

[81] The defendants allege that by issuing a clear demand before proceedings to the defendants to provide support, the plaintiff could have avoided these proceedings.[167]

[82] It is submitted on behalf of the defendant that while conceding Mr Rycen committed trespass, his liability in trespass is only to the person in lawful possession of the land trespassed on; and only a person in lawful possession can sue for trespass to land and nuisance. Reliance is placed on the decision of Hodges J in Rodrigues v Ufton,[168] where upon a review of the authorities, it was said:[169]**

"I think that, with the exception of one case, they show that an action in trespass can be maintained only by a person in possession, and I think that possibly a mistake may have arisen in not distinguishing between the statement that an action in trespass can only be maintained by a person who has possession, and that an action may be maintained by a reversioner for an injury to the reversion done by a trespasser, which are two totally different things. It has not been doubted for nearly a century that a reversioner can sue for an injury to the reversion done by a trespasser." (my emphasis)

**[83] It is contended that the plaintiff did not lead evidence of his right to possession at the material times. Reference is made to his evidence that he has never resided in the property, but had rented it to tenants and had achieved an occupancy rate of about 95%. Accordingly, it is submitted that in failing to give evidence of his lawful possession, the plaintiff has failed to make out his case in trespass and nuisance.[170]

[84] However, it is conceded that the plaintiff has established a cause of action for damage to the reversion.[171] Reference is again made to Rodrigues v Ufton, where, after observing that, "I entertain no doubt that a reversioner cannot bring an action in trespass. He can bring an action and can recover damages, if a trespass will injure his reversion,"[172] Hodges J said:[173]**

"I have discussed this subject at some length, but I do not know that it makes any material difference in this case. Forms of action are gone, but while forms of action are gone, and trespass as a form of action is gone, parties may so state their case in their pleadings to show the damage claimed is damage for a trespass, but the whole dispute between the parties was unmistakeable, and if it be necessary to alter the pleadings in any way I think I ought to allow that amendment. I propose to dispose of this case as if any doubt on this subject was removed, and as the plaintiff was in possession of the land by her tenants, and as a fence was permanently put up which would interfere with her possession, I think I ought to give some damages of the obstruction."

**[85] Therefore, it is conceded by the defendants that it is the pleaded facts and established evidence which count, and not some outdated forms of action. For this reason, it is accepted by them that I could take a similar approach to this case with the aid of r 367 of the Uniform Civil Procedure Rules 1999 (UCPR).[174]

[86] Although the defendants concede the relevant damage is to the reversion, it is argued there is strong evidence they did not intend the damage to be permanent and therefore, following the reasoning in Cooper v Crabtree,[175] there is no damage to the reversion.[176]

[87] The defendants' principal submission is based on statements of principle such as those of the High Court of Australia in Plenty v Dillon,[177] where police officers who entered onto the appellant's farm in order to serve a summons on his daughter were sued by the appellant for trespass to land. Mason CJ, Brennan and Toohey JJ posed the issue for determination in the following terms:[178]**

"Whether a police officer who is charged with the duty of serving a summons is authorised, without the consent of the person in possession or entitled to possession of land and without any implied leave or licence, to go upon the land in order to serve the summons" (my emphasis)

"The policy of the law is to protect the possession of property and the privacy and security of its occupier ... A person who enters the property of another must justify that entry by showing that he or she either entered with the consent of the occupier or otherwise had lawful authority to enter the premises." (my emphasis)

"But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land." (my emphasis)

[88] In TCN Channel Nine Pty Ltd v Anning[181] Spigelman CJ (with whom Mason P and Grove J agreed) cited with approval the passage of the joint judgment of Gaudron J and McHugh J in Plenty v Dillon at 647, which is quoted in paragraph [87].[182] His Honour also summarised the law as follows:[183]

"The tort of trespass is committed whenever there is an interference with possession of land without lawful authority or, relevantly, the licence or consent of the person in possession." (my emphasis)

[89] In Georgeski v Owners Corporation Sp 49833,[184] Barrett J said:[185]

"This result emerged because trespass to land entails interference with possession and is maintainable only by someone who has a right of possession. As between landlord and tenant, it is the tenant who may sue in trespass." (my emphasis)

[90] This principle is stated in The Law of Torts as follows:[186]

"The action of trespass vindicates only violations of actual possession, and is not concerned with protecting the interests of persons out of possession at the time of the intrusion. Thus, a purchaser cannot sue for a trespass occurring before title passes, nor a landlord during the subsistence of a case."

[91] The chapter on "Trespass to Land" in Court Forms, Precedents & Pleadings Queensland states:[187]

"Trespass to land is a tort and exists as an actionable wrong, as Derrington J put it, 'for the protection of possession of one entitled to it against one who is not so entitled, for it consists of an unauthorised intrusion on land in the exclusive possession of another'." (my emphasis)

The reference to Derrington J is to his decision in Proprietors of the Centre BUP No 343 v Bourne [1984] 1 Qd R 613 at 620. The precedent for a Statement of Claim in action for damages for trespass, including a claim for aggravated and exemplary damages, includes:[188]

"1. At all times material to this action the plaintiff was the registered proprietor in fee simple of the land comprised in certificate of title No [number]. The said land is a [grazing] property known as [name of property] situated near [town] in the state of Queensland upon which the plaintiff resides and there carries on the business of [grazier and tourist operator]." (my emphasis)

**[92] In the present case, the plaintiff pleads he was at all material times the owner of a residential property situated at 6 Beech Avenue. He does not go further to plead that it was a property upon which he resided, at those times in accordance with the precedent, or that he was otherwise entitled to possession of the property at those times.

[93] In responding to the defendants' contention, the plaintiff refers to r 157(a) of the UCPR which requires a party to include in a pleading particulars necessary to "define the issue for, and prevent surprise at the trial." In addition, r 157(c) requires the pleading of particulars to support a matter specifically pleaded under r 150. Rule 150(4) requires that in a defence a party must specifically plead a mater that:

(a) the party alleges makes a claim ... of the opposite party not maintainable; or

(c) if not specifically pleaded may take the opposite party by surprise; or

(d) raises a question of fact not arising out of a previous pleading."

[94] I agree that the defendants have not complied with these requirements. This follows from the fact that the defence does not expressly rely on the plaintiff not being in possession of the 6 Beech Avenue property on the basis he had let the property to tenants at the particular time. This is despite the fact that in paragraph 6 the defendants particularise 18 facts on which they rely to show that the plaintiff has not established a cause of action. Accordingly, as the plaintiff submits, the failure of the defendants to make the issue of possession relevant to the cause of action has caused the evidence to be less certain than it otherwise would have been. I note, however, that when this issue was raised by Mr Appleton in oral submissions immediately following the conclusion of the evidence, no application was made by Mr Crow on behalf of the plaintiff to reopen his case to call evidence about this. Further, no such application has been made subsequently.

[95] Despite this failure by the defendants, as trespass to land exists as an actionable wrong for the protection of possession of one entitled to it against one who is not so entitled, the plaintiff should have pleaded his position in relation to this in accordance with the precedent and to have been in a position to prove his possession if required. As stated by White J in Thiess Pty Ltd v FFE Minerals Australia Pty Ltd:[189]**

"but it must be kept firmly in mind that what the UCPR require, reflective as they are of long held approaches to pleadings, or at least since the Judicature Act 1876, is that each fact, the proof of which is essential to success at a trial, must be pleaded."

The plaintiff has not done so in the present case. And as her Honour also observed:[190]

"More generally, the purpose of pleadings is to inform the opposite party of the case it has to meet and to permit, in a responsive pleading, the issues to be narrowed. Furthermore, the defendant cannot be expected to intuit what the plaintiff intends to convey in its pleadings by its own understanding of the facts and circumstances giving rise to he litigation. That would be a certain path to disaster."

**[96] Despite the plaintiff's failure to plead in relation to the question of possession, and the concession that evidence about this is less certain than it otherwise would have been, it is submitted on behalf of the plaintiff that the only reasonable finding of fact is that the plaintiff was in fact the possessor and the cause of action is trespass.[191]

[97] In support of this submission, it is said the plaintiff's evidence was that on 21 February 2004, as he and his father were painting the house, there was no tenant in the house. While it is accepted the plaintiff did not provide evidence one way or the other as to whether or not there was a tenant in the house on or about 20 January 2004, it is submitted this does not equate with the plaintiff failing to provide that he was the possessor. It is submitted that in circumstances in which the plaintiff is the admitted owner of the house, in the absence of any other evidence or competing inference, the court is entitled to infer he was the possessor of the property at the relevant time. It is further submitted that if the defendants wished to persuade the court that such an inference should not be drawn, they should and could easily have brought proof of the same.[192]

[98] The plaintiff refers to the defendants' evidence that they were living next door to 6 Beech Avenue from late 2003. On this basis, it is put that "surely [they] would have known whether the house was tenanted or not". It is submitted that as they have stayed mute on the issue, the only reasonable inference which can be drawn, according to the rule in Jones v Dunkel,[193] is that the property was not in fact tenanted at that time.[194]

[99] Reference is also made to the failure of Mr Appleton to raise the issue with the plaintiff. It is suggested this could easily have clarified the issue. It is submitted that as possession was not an issue on the pleadings, and the plaintiff had been admitted to be the owner of the property with the natural inference he was also in rightful possession, there was no need in the plaintiff's case to provide any further evidence. Accordingly, it is submitted on the admission of paragraph 1 of the Statement of Claim, namely ownership of the plaintiff's land and the usual inference the owner is the possessor of the land, that in the absence of the defendants raising the issue on the pleadings, or failing to comment upon the issue in the defendants' own evidential case or challenge it in the plaintiff's evidential case, the only reasonable finding of fact is that the plaintiff was the possessor and the cause of action is trespass.[195]

[100] I do not agree with these submissions. As set out in paragraph [3], there was undisputed evidence that following the purchase of the 6 Beech Avenue property in 1999, the plaintiff had never resided there but had kept the house for rental purposes. His evidence was that it had been regularly occupied by tenants until the events which gave rise to these proceedings. He estimated that before this, the occupancy rate was about 95%.

[101] Mr Crow conceded in his oral submission on behalf of the plaintiff that the evidence as to whether the house was tenanted on 20 January 2004 is vague.[196] Despite his criticism that this is because no-one raised this on the pleadings, the onus is upon the plaintiff to prove that on the balance of probabilities the property was not occupied by a tenant at the time, and therefore he was in possession of it. Having regard to the state of the evidence outlined above, I am not satisfied this onus has been discharged by the plaintiff.

[102] However, Mr Crow submitted there was no issue with possession on 21 February 2004 because the evidence was that at this time the property was vacant and they were repainting it.[197]

[103] The only real evidence about the status of the tenancy when the plaintiff and his father attended to paint the property is the statement by the plaintiff's father that:[198]**

"Peter's tenants left and we were painting the house."

[104] However, as Mr Appleton orally submitted, the meaning of this is a matter of conjecture, because it is not known if this was a reference to their having left for the day, having gone on holidays, or having terminated the tenancy.[199] As stated in The Law of Torts in Australia:[200]

"actual exclusive possession of land is not lost simply because, for example, the person is on holiday or even if the person ceases to be in actual physical occupation of the land for a longer period because, for example, of a decision to let the land lie fallow for a few years." (my emphasis)

**Having regard to the state of conjecture about the meaning of the plaintiff's father's reference to the tenants having left, I am not satisfied on the evidence, that the plaintiff has discharged the onus that the tenants were in possession of the property on that date. The departure of the tenants on holiday, for example, would provide the plaintiff with an opportunity to paint the house.

[105] I also do not consider that the only reasonable inference that can be drawn, according to the rule in Jones v Dunkel from the defendants' staying mute on that issue, is that the property was not in fact tenanted at the time. The rule as conveniently expressed in the head note to that decision is:[201]**

"that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied upon as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence."

**[106] Here it is submitted that this rule applies in circumstances where the defendants were called as witnesses, but remained silent on the issue because they were never questioned about it. However, in circumstances where a tenant's exclusive possession of land is not lost simply because of absences, such as being on holiday or otherwise away from the premises, I do not consider that the defendants as next door neighbours were "presumably able to put the true complexion on the facts relied upon as the ground for the inference" contended for by the plaintiff. They will not necessarily know whether or not the next door property remains tenanted from time to time, simply due to an absence of the tenants from the property during those times.

[107] The plaintiff also cites other passages from The Law of Torts in Australia[202] in support of the proposition that the court can ascribe possession of the 6 Beech Avenue property to him, as the actual owner of the land.

[108] Reference is first made to the proposition from The Law of Torts in Australia that:[203]**

"In the absence of evidence to the contrary, the law will, without reluctance, ascribe possession either to the owner of the land with the paper title or to the persons who can establish a title through the paper owner."

**On this basis, it is submitted that the court should without reluctance ascribe possession to the plaintiff as owner of the land because of the absence of evidence to the contrary.

[109] Reference is also made to the proposition from that publication that:[204]**

"If there is a dispute as to which of the two persons is actually in possession of certain premises or land, the law considers that one to be in possession who has the superior right to the land. This is described as the legal title. As Owen CJ said in the Bakers Creek and Consolidated Gold Mining Co v Hack, "The law considers that one to be in possession who has the legal title.'"

**[110] However, I do not consider the first proposition applies in the present case to ascribe possession to the plaintiff, because I consider the evidence I have referred to is "evidence to the contrary". Further, I do not consider the second proposition is applicable because this case does not involve a dispute as to which of two persons is actually in possession of the property, but rather involves whether the plaintiff has proved that at the relevant time he was in possession of property as opposed to being landlord to an unspecified tenant.

[111] Therefore, I am not satisfied the plaintiff has proved on the balance of probabilities that he was in possession of the 6 Beech Road property on the two specific occasions on which it is conceded that Mr Rycen trespassed on it or at any other occasion or occasions.

[112] Despite this conclusion, I accept the plaintiff's further argument that the plaintiff can still sue in trespass as owner of the property, for compensation for damage to the reversion.

[113] Earlier in the same year that Rodrigues v Ufton was decided, judgment was delivered by North J in Mayfair Property Company v Johnston.[205] In that case, it was not disputed that a trespass had been committed by the plaintiffs. However, it was submitted on behalf of the plaintiffs that the counterclaiming defendants were not entitled to sue in respect of the trespass because they were only reversioners, having let the house to the other defendants. North J said:[206]**

"In my opinion that is not the law. In some cases, no doubt, a reversioner cannot sue for a trespass; but in many he can." (my emphasis)

North J concluded that there was a trespass in putting on the defendants' land something which was intended to be permanent. His Honour awarded damages to the cost of removing the encroachment. In Rodrigues v Ufton, Hodges J distinguished this decision on the basis that:[207]

"In that case there was some language used in dealing with the counterclaim which, if not closely read, might lead one to suppose that a reversioner could bring an action of trespass ... . But he does not say he is entitled to bring an action of trespass but only to maintain action in respect of trespass."

**However, this analysis by Hodges J is expressed in terms of the plaintiffs' submission to North J and the head note of that case, and not in terms of the conclusion quoted above, to the effect that in some cases, a reversioner can sue for a trespass.

[114] Subsequently, in Jones v Llanrwst Urban Council,[208] which was an action for nuisance, Parker J said:[209]**

"With regard to the first point, it is reasonably certain that a reversioner cannot maintain actions in the nature of trespass, including, I think, actions from infringement of natural rights, arising out of his ownership of land, without alleging and proving injury to the reversion. If the thing complained of is of such a permanent nature that the reversion may be injured, the question of whether the reversion is or is not injured is a question for the jury." (my emphasis)

**[115] Despite the reservations of Hodges J, in Lockwood Buildings v Trust Bank[210] Tipping J (with whom McKay J agreed), in a case which involved resolution by the New Zealand Court of Appeal of an entitlement of a mortgagee who had no right to immediate possession to sue in trespass, expressly regarded Mayfair Property Company v Johnston and Jones v Llanrwst Urban District Council as supporting, "the ability of a reversioner or landlord to sue for trespass, while having no right to immediate possession".[211]

[116] This conclusion was expressed in the following review of the law, which is relevant to the determination of the issues in the present case:[212]**

"It is clear that a reversioner, not being in possession and having no right to immediate possession, can sue in trespass for permanent damage to the reversion; see Clerk & Lindsell at paras 23-08 and at 23-17 where it is said:

'Reversioner. Although, in general, the only person who can sue for a trespass is the person who was in possession ... at the time of the trespass committed, yet where the trespass has caused a permanent injury to the land affecting the value of their inheritance, a person who is entitled in reversion may sue for a present injury to his interest, and he may do so at once without waiting until his future estate falls into possession. Thus a reversioner may sue for cutting down timber trees, or destroying a building, or cutting and carrying away turf, or any similar act involving a partial destruction of the freehold. But for an ordinary continuing trespass, even though committed under a claim of a right of way, the reversion cannot sue.'

The same position obtains in the case of a reversionary interest under a lease. The landlord, while not in possession and having no immediate right to possession, may sue for permanent damage to the reversion. As to that Todd says at p 357:

'Normally the landlord, being out of possession, cannot sue in trespass, but there are cases which say that the landlord may sue in trespass where physical damage is caused to his or her property. Notwithstanding those cases, there seems little doubt that technically the landlord's action in those circumstances is not an action in trespass, but rather is an action on the case for damages for the injury done to his or her reversionary interest. Thus, purists would argue that this exception to the general rule is no more than an apparent exception.

It makes little difference today whether these actions are seen as actions in trespass or on the case. The need for some action is obvious: it would be absurd if a landlord was not able to seek damages for, say, the cost of structural repairs necessitated by a defendant's trespass until the end of the tenancy, by which time the trespasser might have disappeared or gone bankrupt. If, however, the action is held to lie in trespass, then a further exception to normal principles must be recognised. Normally trespass is actionable per se. The landlord's claim is not, but rather is dependent upon proof of permanent physical damage.'

I adopt that as a correct statement of law. I regard it as unnecessary to dwell for long on whether the claim should be in trespass or on the case: for the origins of each see Salmond & Heuston at pp 4-8. Historically the difference mattered and depended on whether the damage was caused forcibly and directly or arose consequentially. While the difference between trespass and case may still be of moment for some purposes, I see no difficulty or harm in assimilating such claims as these into trespass rather than maintaining the view that they are more properly actions on the case. I say that acknowledging the stricter approach of Hodges J in Rodrigues v Ufton [1894] VicLawRp 106; (1894) 20 VLR 539: see Trindale and Cane: The Law of Torts in Australia (1985) at pp 81, 99-100.

The assimilation which I favour accords with the modern practice which is to look more at substance than form. While historically the form of action might properly have been on the case, today a claim by a reversioner can fit comfortably into the modern tort of trespass. The ability of a reversioner or a landlord to sue for trespass, while having no right to immediate possession is supported by Mayfair Property Co v Johnston [1894] 1 Ch 508 at p 516 and by Jones v Llanrwst Urban District Council [1911] 1 Ch 393 at p 404. See also Salmond & Heuston at p 51. It is important to note that the tort of trespass is not actionable per se at the suit of a reversioner or a landlord. Such a person can only sue if permanent damage to the reversion can be shown. As Salmond & Heuston say a landlord has no right of action for a 'mere trespass'. What must be established is a trespass which results in harm to the property and which causes permanent damage to the plaintiff's reversionary interest therein.

I regard the position of a mortgagee as being sufficiently analogous to that of a reversioner or a landlord to justify the same approach being taken." (my emphasis)

**[117] The other member of the court, Cooke P, having referred to Rodrigues v Ufton and observing that as held in those cases under the old law the action would have lain in case, not in trespass, was also of the view that, "At the present day the historical derivation of the cause of action is less important than the identification of the substance of the right".[213] He also stressed that "proof of damage is essential".[214]

[118] In my view the judgments in Lockwood Buildings v Trust Bank are an evolution of the statement by Hodges J in Rodrigues v Ufton with reference to the distinction between a cause of action for trespass and a cause of action for damage to the reversion, that, "I do not know if it makes any material difference in this case. Forms of action are gone".[215]

[119] On the basis of this analysis of the authorities from 1894, and in particular since Rodrigues v Ufton, I have come to the view that the plaintiff can still sue in trespass as owner of the 6 Beech Avenue property, for compensation for damage to the property. This is provided it is established the trespass results in harm to the property and permanent damage to his reversionary interest.

[120] This approach brings the right to sue in trespass into line with the right to sue "in nuisance" as expressed in Court Forms, Precedents & Pleadings Queensland as follows:[216]**

"Any person who owns or occupies land can sue for private nuisance. If the occupier is not the owner, both can sue, although damages will be assessed differently, the owner receiving compensation for damage to the reversion, and the tenant receiving compensation for damage to his or her interest."

**[121] As indicated, the plaintiff can only sue in trespass which results in harm to the property and causes permanent damage to his reversionary interest.

[122] I am satisfied on the balance of probabilities that Mr Rycen's admitted trespass on 20 January 2004 resulted in harm to the plaintiff's property. As is admitted at 6(m) of the defence, Mr Rycen authorised the excavation contractor to take away a small amount of extra soil from the plaintiff's land.

[123] Further, having the opportunity to observe and asses the witnesses, for reasons that I will subsequently enlarge on in this decision, I accept on the basis of the plaintiff's evidence as asserted in the Amended Statement of Claim that Mr Rycen had removed earth and other material from the plaintiff's land up to a distance of one metre from the common boundary. The extent of the excavation is illustrated by Exhibit 5 (the "Current View" Plan) and Exhibits 6, 10, 11 and 12 (photographs). The plaintiff's evidence was that at the time he left the property on 20 January 2004, he roughly estimated the excavation extended 600 to 800 millimetres from the boundary toward his house. With the use of the tape measure, which appears in the photos taken on the following morning,[217] he estimated the excavation continued into his property about two and a half to three feet from the dispute boundary. His father estimated that the embankment was dug up, about a metre beyond the boundary on the slope. The surveyor, Mr Rundle, estimated on the basis of photograph 1 of Exhibit 12, that the excavation into the plaintiff's property was of the order of a metre. Mr Rycen also estimated during his evidence that they had gone over into the plaintiff's land by probably a metre or three-quarters of a metre.

[124] The real issue, raised by Mr Appleton on behalf of the defendants, is whether this trespass caused permanent harm to the plaintiff's reversionary interest. In his written submission he argues that, as there is strong evidence from which the court may infer the defendants did not intend the damage to be permanent, therefore following Cooper v Crabtree,[218] there is no damage to the reversion.[219] In that case it was held that a hoarding and poles erected by the defendant on the plaintiff's land to block out the access of light to a window of the plaintiff's cottage, was not of such a permanent nature as to injure the reversion, and therefore the plaintiff could not maintain an action for trespass.

[125] In Jones v Llanrwst Urban Council, Parker J took "permanent" in this context to mean:[220]**

"Such as will continue indefinitely unless something is done to remove it."

Applying this to the circumstances of that case, his Honour said:[221]

"In my opinion, what is complained of in the present case is of a permanent nature within the rule. The sewage of Llanrwst will continue to be turned into the Conway unless and until something is done to divert it elsewhere. It is not a case only of the present intention of the defendants, but of the necessary consequences of the physical conditions, if nothing is done to alter them. Further, I am satisfied that the plaintiff's reversion is in fact injured and depreciated in value by what is happening at the present time." (my emphasis)

[126] Consistently with this, reference is made in Mayfair Property Company v Johnston[222] to Kidgill v Moor,[223] where locking a gate across a way was held to be a sufficient obstruction to give the reversioner a right of action. North J said:[224]

"It is enough if for all substantial purposes the obstruction is of a permanent character."

**[127] In Rodrigues v Ufton Hodges J gave a verdict in damages for the plaintiff as a fence was permanently put up which would interfere with her possession. This was despite the fact that as a matter of common sense a fence can be removed. Therefore, it must have been permanent on the basis it would continue indefinitely unless something was done to remove it.

[128] Of relevance to the present case, as recognised in the quote from Clerk & Lindsell in Lockwood Buildings v Trust Bank, a reversioner may sue for "cutting and carrying away turf", or any similar act involving a partial destruction of the freehold.[225]

[129] I consider excavating the plaintiff's land and removing earth and other material from it for a distance of up to one metre on 20 January 2004 and dumping loose soil on to his land on 21 February 2004, caused permanent harm to his reversionary interest because in each case it would continue unless something was done to rectify it. As also referred to with approval in Lockwood Buildings v Trust Bank:**

"The need for some action is obvious: it would be absurd if a landlord was not able to seek damages for say, the cost of structural repairs necessitated by a defendant's trespass until the end of the tenancy, by which time the trespasser might have disappeared or gone bankrupt."

**[130] Accordingly, I am satisfied the plaintiff can sue in trespass for compensation for the damage to his reversion. Having regard to the concession that Mr Rycen committed trespass, I also find that he is liable to the plaintiff in trespass for the damage to the plaintiff's reversion on each of those dates.

[131] If I am wrong, it is conceded that the plaintiff has established a cause of action for damage to the reversion. As I have indicated, it is conceded I could take a similar approach to Hodges J in Rodrigues v Ufton, who, if it was necessary to alter the pleadings in any way, would have allowed an amendment.[226] It is also accepted that I could take this approach with the aid of r 367 of the UCPR, which provides:**

"(1) The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of the rules.

(2) In deciding whether to make an order or direction, the interests of justice are paramount. ..."

**[132] Rule 367(3) sets out a non-exhaustive list of the things that the court may do, or require of a party, in relation to both the trial and the hearing of a proceeding. Without limiting the ambit of r 367(2), r 367(4) contains a number of matters to which the court may have regard. Consistent with the philosophy expressed in r 5, "the just and expeditious resolution of the real issues in a civil proceeding at a minimum of expense" may be relevant.

[133] Although no reference was made to it, r 375(2) allows the court to give leave to allow a party to amend a claim even where the effect of the amendment will be to include a new cause of action after the proceeding was started. Rule 375 is to be read subject to r 376, which deals with the amendment of pleadings after the limitation period. In circumstances in which a relevant limitation period has expired, the court has power to grant leave to make an amendment which has the effect of adding a new cause of action only if the court considers it appropriate to do so and the new cause of action arises out of the same facts as the cause of action already pleaded by the party seeking to make the amendment: r 376(4).[227] I consider it is more appropriate to apply these provisions, rather than r 367, if it is necessary to take the approach suggested on behalf of the defendants in this case. This was the approach adopted by Hodges J in Rodrigues v Ufton.

[134] As it is conceded by the defendants that the plaintiff has established a cause of action for damage to the reversion arising out of the same facts as the cause of action for trespass already pleaded, I consider it is appropriate to grant leave to amend the claim to include a new cause of action for damage to the reversion, if it is necessary to do so. If such an amendment was made, having regard to the concession I would find Mr Rycen liable to the plaintiff for damage to the reversion on 20 January 2004 and 21 February 2004.

[135] For reasons which will become apparent, I do not consider it makes any difference to the outcome in terms of liability or quantum whether the cause of action is for trespass or for damage to the reversion; and the principles to be applied in assessing damages are the same.

[136] For the claim based on nuisance, the same issues do not arise as in the case of the claim based on trespass. I agree with Mr Crow's submission that it is wrong to assert on behalf of the defendants that an action in nuisance lies on the suit of the person in lawful possession.[228] As stated in Court Forms, Precedents & Pleadings Queensland, a person who owns land can sue for private nuisance. If the owner and occupier are different, both can sue with the owner receiving compensation for damage to the reversion.[229] Consequently, the precedent for a Statement of Claim for nuisance based on emission from adjoining land (damages and injunction) commences:[230]**

"1. The plaintiff is and has been at all material times the owner of land situated at [address], being the land described as [real property description].

1. There is and has been at all material times on that land a house occupied by the plaintiff and his family as their home."

[137] It is also recognised in The Law of Torts In Australia that reversioners and owners who are not in exclusive possession can sue for nuisance committed before the interest matures if the nuisance affects the reversionary interest, because it involves some permanent or long-term damage to the property. This is expressed as follows:[231]

"The cases on the rights of reversions (and owners who are not in exclusive possession) fit into this pattern. A person whose interest in the property is to have it back when someone else's interest comes to an end can sue for nuisance committed before the interest matures only if the nuisance adversely affects the reversionary interest because it involves some permanent or long-term damage to the property."

[138] The principle as stated in The Law of Torts is to the same effect:[232]

"The right to complain of private nuisance, as of trespass, belongs exclusively to the actual possessor of the land affected. A reversioner cannot sue, unless the nuisance permanently impaired the usability of the land and thereby damaged his proprietary interest. Thus he may complain of a building obstructing his ancient lights or of vibrations causing structural damage to his house, because the injury would be 'such as will continue indefinitely unless something is done to remove it', but he has no remedy for noise, smoke or other invasions of a temporary nature, apparently even if it drives his tenants away or reduces the letting value of the property." (my emphasis)

**[139] Therefore, the defendants' argument that an action in nuisance lies only at the suit of the person in lawful possession is wrong. Reversioners and owners who are not in exclusive possession, for example, because of a tenancy, can sue for nuisance which involves some permanent or long-term damage to the property.

[140] In addition to the requirement for permanent or long-term damage to the property which permits the plaintiff to sue for nuisance in this case, as stated in Court Forms, Precedents & Pleadings Queensland, there are three elements to nuisance:[233]**

"It must relate to the plaintiff's use and enjoyment of the land ...; the plaintiff must have suffered interference, that is damage which must have been foreseeable; and this must have been caused by some unlawful act on the part of the defendant or for which the defendant is responsible."

In relation to the issue of unlawfulness, it is stated:[234]

"It is difficult to explain, however, what is required of an act for it to be unlawful for this purpose. Ordinarily if there is some actual damage to the plaintiff's land the act which causes it will be unlawful ... . Today it will be rare for there to be a situation where there was actual damage which was not actionable as nuisance on this basis." (my emphasis)

**[141] Subject to the issue of whether there has been permanent or long-term damage to the plaintiff's property, I agree with Mr Crow's submission on his behalf that nuisance is expressly admitted by paragraphs 6(l) and 9 of the defence.

[142] Paragraph 6(l) pleads with reference to 20 January 2004 that as the excavator contractor began to excavate on the defendants' side of the boundary, the soil on the plaintiff's land began to crumble and fall away into the excavation. Paragraph 9 is an admission that the natural support of the plaintiff's land has been withdrawn and that some of the plaintiff's land has subsided into the excavation. However, it is asserted that these effects are minimal and the defendants have always been ready, willing and able to fill in the excavation to a good and workman-like standard.

[143] On the basis of these admitted facts, there can be no dispute that actions of the excavator contractor interfered with the plaintiff's use and enjoyment of his land. There can also be no dispute that this caused actual damage to his land, such that it was an unlawful act for which Mr Rycen was responsible. This is particularly so, in circumstances in which I find that Mr Rycen contributed to this damage by causing the excavator contractor to deliberately excavate on the plaintiff's land. The reasons for this finding will emerge subsequently. In these circumstances, I am also satisfied on the balance of probabilities that this damage was foreseeable. Overall, I am therefore satisfied to this standard that the three elements necessary to establish nuisance on behalf of Mr Rycen have been established.

[144] I am also satisfied to this standard that it has been established the nuisance involved some permanent or long-term damage to the property.

[145] As observed in paragraph [142], the defendants admit that as a result of the excavation the natural support of the plaintiff's land has been withdrawn and some of his land has subsided into the excavation. For reasons I will subsequently enlarge on, I accept the plaintiff's evidence that the area excavated out became so unstable that there was no support, with the result that there would be gradual subsistence which would not be prevented by simply backfilling or compacting the soil. I also accept his evidence that the coppers log retaining wall built by the defendant would not have prevented this, because it was collapsing under its own weight. As I have observed, Mr Appleton's question about this impliedly involved an acceptance that this wall was not a permanently satisfactory solution.

[146] These findings are consistent with the statement in Court Forms, Precedents & Pleadings Queensland that:[235]**

"One area which is reasonably free from uncertainty is the nuisance constituted by withdrawal of support from land. It is well established that any withdrawal of the right to support of the plaintiff's land in its natural state is actionable without proof of negligence."

**[147] Therefore, I am satisfied on the balance of probabilities that the plaintiff can sue in trespass, and in nuisance for compensation for the damage to his reversion. Further, for the reasons I have given in the course of reaching this decision, I am satisfied to this standard that the plaintiff has established that Mr Rycen trespassed on his land and caused nuisance to his land by the admitted withdrawal of support of that land; and therefore is liable to the plaintiff on this basis.[236]

[148] In relation to the issue of quantum of damages, Mr Crow accepted during his oral submissions that the nuisance involving the withdrawal of support caused by the excavation is factually part and parcel of the same actions which constituted the trespass on that land. I agree with this approach because the trespass, which involved excavation of the plaintiff's land, caused the withdrawal of support and the subsidence of some of the plaintiff's land into the excavation.

[149] The plaintiff has stated the nature and the amount of the damages claimed, in paragraph 15 of the Amended Statement of Claim, which is set out in paragraph [80] of this decision. The defendants have not specifically pleaded to paragraph 15 in their defence. The plaintiff therefore submits that as these quantum matters have not been challenged in the defence, by virtue of r 166(5) of the UCPR, these facts are admitted and he is entitled to the damages as pleaded.

"(1) An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless -

(a) the allegation is denied or stated to be not admitted by the opposite party in a pleading; or

(4) A party's denial or non admission of an allegation of fact must be accompanied by a direct explanation of the party's belief that the allegation is untrue or cannot be admitted.

(5) If a party's denial or non admission does not comply with (4) the party is taken to have admitted the allegation."

**[151] I do not accept the plaintiff's submission for a number of reasons.

[152] First, although unfortunately buried in the defence without separate identification and characterisation, I consider the defendants have denied the quantum matters by pleading in the defence:

• the encroachment was insignificant (especially having regard to the fact that the sloping area had formerly been a "no man's land" under the control of the tenants of the defendants' property (paragraph 6(m)).

• the retaining wall was to be constructed on the defendant's side of the boundary at no cost to the plaintiff (paragraph 6(m)).

• between 20 January and 21 February the male defendant constructed a 900 mm coppers log retaining wall and on his side of the dispute boundary (paragraph 6 (p)).

• a denial of the allegations in para 8, 10 and 11 of the Statement of Claim[237] (paragraph 7).

• the non admission of the allegation in paragraph 12 of the plaintiff's Statement of Claim and that the facts and circumstances of the case are not such as to cause a reasonable person to suffer humiliation, mental anguish or stress[238] (paragraph 8).

• the withdrawal of support is minimal and the defendants are, and always have been, ready, willing and able to fill in the excavation to a good and workman-like standard (paragraph 9).

• in relation to paragraph 14 of the plaintiff's Statement of Claim, the defendants deny that the plaintiff's fence and house is at risk of collapse from the excavation - at least, not in this century (paragraph 10).

• in relation to the allegation in paragraph 6 of the plaintiff's Statement of Claim that the defendants removed three bushes from the plaintiff's land, the defendants admit they removed at least one oleander bush which was part of the general overgrowth and rubbish. The leaf of the oleander is poisonous and can kill and [sic] child. It is therefore not a valuable bush but a pest and has no value (paragraph 12).

• the defendants are, and have at all material times been, prepared to do all things necessary to provide support to the plaintiff's land but allege the plaintiff has prevented them from doing so (paragraph 13).

In addition, except as specifically denied, the defendants do not admit the allegations in paragraphs 6-13 of the Statement of Claim because they do not fit in with the allegations in paragraph 6 of the defence (paragraph 5).

[153] Second, the plaintiff did prove a number of facts, on which the court can make a factual assessment of the quantum of damages.[239] While Mr Crow submits this was done out of an abundance of caution, in the event that such proof was required, notwithstanding their primary reliance on r 166(5), he did not make this point when the evidence was adduced. The plaintiff's conduct in seeking to prove these facts is wholly inconsistent with the proposition, not made until final submissions, that quantum was not in issue by virtue of r 166(5). This is consistent with the observations in Arnold Electrical & Data Installations Pty Ltd v Logan Area Group Apprentice/Trainee Scheme Ltd.[240] In that case, the defendant's counsel sought to overcome a difficulty of proof by arguing that the defendant was entitled to rely upon a deemed admission under r 166. Fraser JA (with whom McMurdo P and Lyons J agreed) said:**

"There is another reason why this pleading point is an inappropriate basis for the grant of leave to appeal. The defendant's counsel did not take the point when he tendered the documentary evidence and undertook to prove it through the witness at the trial. That conduct was wholly inconsistent with his proposition, not made until final submissions at the trial, that the fact of the overpayment was not in issue."

[154] Third, I adopt the approach taken by White J in Ballesteros v Chidlow & Anor No. 2,[241] where, with reference to the circumstances of that case, her Honour said:[242]

"If it be concluded that the defendants have fallen foul of r 166(4) in respect of the matters pleaded in para 9 of the statement of claim there is good reason to relieve them of any deemed admissions. Mr Lanyon-Owen has deposed to and given sworn oral evidence that he was of the opinion that the pleading complied with the requirements of the UCPR. He is an experienced litigation solicitor. Both firms of solicitors are experienced in personal injuries work. The plaintiff's solicitors would have known that the amounts claimed as damages as set out in para 9 would be subject to challenge. Notwithstanding the correspondence, they do not say that they prepared for trial on the mistaken understanding that the quantum of the various head of damages was not in issue because there were deemed admissions. There was no suggested prejudice." (my emphasis)

**[155] It is clear from the material before me that both solicitors involved in this matter are experienced. In my view, the plaintiff's solicitor would have known the amounts claimed as damages would be subject to challenge. By proving a number of facts upon which the court, if required, can make a factual assessment of the quantum of damages, the plaintiff's legal representatives have demonstrated that they did not prepare for trial on the mistaken belief the quantum of the various heads of damages was not in issue because there were deemed admissions. They have not been taken by surprise. There was no suggested prejudice.

[156] Therefore, I proceed on the basis there is no deemed admission by the defendants of the quantum of damages as pleaded.

[157] Because I have concluded this issue in favour of the defendants, it is not necessary for me to address the other submissions which they advanced in support of this conclusion. Many of the submissions involve criticisms of the plaintiff's pleadings as being deficient in its allegations in damages. I simply note that at no time did the defendants make an interlocutory application for an order for further and better particulars under r 161(1), and they did not write to the plaintiff under r 444 specifying any complaint about any aspect of the pleadings, or of the other matters required by this rule. As stated in Meredith v Palmcom Pty Ltd:[243]**

"the requirements of Rule 444 serve the very useful purpose of alerting the respondent to the applicant's complaints giving the respondent the opportunity to respond or remedy the problem."

**[158] In these circumstances, just as I have concluded that the plaintiff has not been taken by surprise by the defendants putting the quantum of the various heads of damages in issue, I conclude there is nothing in the plaintiff's pleadings that is capable of taking the defendants by surprise within the meaning of r 155(4). Amongst other matters, the pleadings fully alert the defendants to the case they have to meet at the trial as regards the claim of aggravated compensatory damages.[244]

Compensatory, aggravated and exemplary damages - general principles

[159] The plaintiff claims damages by way of compensatory damages, aggravated damages and exemplary damages. These are conveniently explained by Cullinane J in Coleman v Watson & Shaw & Anor:[245]**

"[55] The first of these two categories are compensatory damages. Lord Diplock in Cassell and Co Ltd v Bruin [1972] UKHL 3; (1972) A.C. 1027 at pages 124-126 explained the nature of such damages and the principles applicable to them;

'The three heads under which damages are recoverable for those torts which damages are "at large" are classified under three heads:

(1) Compensation for harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts, including intimidation.

(2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it. This Lord Devlin calls "aggravated damages".

(3) Punishment of the defendant for his antisocial behaviour to the plaintiff. This is what Devlin calls "exemplary damages" - - - '

[56] Exemplary damages are to be assessed separately from compensatory damages. See Henry v Thompson [1989] 2 Qd R 412.

[57] The nature of exemplary damages and the principles governing the award of such damages were discussed by the High Court in Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1.

[58] There are various factors which might give rise to an award of exemplary damages and no particular type of conduct is essential. Generally speaking however, the purpose of such damages is to mark the disapprobation of the court for the conduct and to deter others from like conduct although an award of exemplary damages is not wholly in the nature of punishment." (my emphasis)

[160] In TCN Channel Nine Pty Ltd v Anning it was held:[246]

"In light of the reasoning in Palmer, Bruyn & Parker, the relevant test for the recovery of consequential loss after an intentional tort in terms of 'natural and probable consequence' is the preferred formulation in Australia. However, it must not be applied as if it were a statutory formulation. Numerous other cognate formulations have been used in the authorities.

What is a natural and probable consequence arising from trespass to land must depend on all the circumstances of the case. It is essentially a question of fact."

[161] The recovery of aggravated damages is based on different principles to recovery for personal injury as a distinct head of damage for trespass to land.[247] With respect to both aggravated and exemplary damages, there is a focus on the conduct of the defendant. However, in the case of aggravated damages, that focus is directed at compensating the plaintiff "for the circumstances and manner of the defendant's wrongdoing" or "the manner in which the act was done".[248] In contrast, in relation to exemplary damages, in Gray v Motor Accident Commission, the four joint judgment said:[249]

"In considering whether to award exemplary damages, the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged. (The reaction of the party who is wronged [for] high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed.) The party wronged is entitled to whatever compensatory damages the law allows (including, if appropriate, aggravated damages). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages ..." (my emphasis)

[162] In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [250] Brennan J said:

"As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs CJ saying:

'I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages.'

The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co, 'to teach a wrong-doer that tort does not pay'". (my emphasis)

This was quoted with approval by the High Court in Lamb v Cotongo [251] which affirmed that, under Australian law, exemplary damages may be awarded in tort.[252] In that case, it was held that:[253]

"[Exemplary damages] apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence, or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights."

In Trend Management Ltd v Borg [254] it was said:

"One may, I think, act 'in contumelious disregard of the plaintiff's rights' by doing recklessly and negligently what is likely to cause damage to the plaintiff even though it is not one's intention to cause it".

However, as was said in TCN Channel Nine Pty Ltd v Anning, such damages are rarely awarded and require something more than a finding of fault.[255] In Gray v Motor Accident Commission the remedy was described as exceptional "in the sense that it arises (chiefly but not exclusively) in cases of malicious wrongdoing in contumelious disregard of the plaintiff's rights".[256] Accordingly, in Trend Management Ltd v Borg it was observed that the High Court has emphasised that findings of contumeliousness are not lightly made, and said:[257]

"The terms in which the contumely is described in the cases indicate, I think, that the conduct of the defendant must be of considerable seriousness and deliberation to warrant this remedy."

**Therefore, it should be used with restraint.[258]

[163] In Pollack v Volpato, it was said:[259]**

"Whereas compensatory damages have to be approached by looking at the situation of the plaintiff in consequence of the wrongful act to which he has been subjected, punitive damages have to be looked at from the side of the defendant. If he is to be punished it is his proper punishment which provides the basis for the assessment of damages.

Just as in inflicting a fine, amongst the factors which have to be considered is the capacity to pay of the person ordered to pay it, in my view the means and resources of the defendant are an important consideration for the jury in inflicting punitive damages, e.g., if evidence has been given that the defendant was a poor man who, if ordered to pay substantial punitive damages would lose his home, and the jury had awarded damages of this order, a basis for review might have been laid in that the punishment was quite unreasonable". (my emphasis)

**[164] In TCN Channel Nine Pty Ltd v Anning it was held that an amount awarded as exemplary damages should be separately quantified from an amount awarded for aggravated damages;[260] and exemplary damages should not bear interest until the date of judgment.[261]

[165] The defendant in an action in which exemplary damages are recoverable is entitled to show that the plaintiff's own conduct was responsible for the commission of the tortious act and to use this fact to mitigate damages. It operates to prevent the award of exemplary damages which, but for the provocation, would have been awarded. However, this principle has no application to compensatory damages.[262]

[166] In order to determine the quantum of damages in this case, and in particular to determine whether to award exemplary damages in this case, it is relevant to determine the issue, identified in paragraph [21] of this decision, as to whether the excavation for which Mr Rycen was responsible was carried out prior to Mr McNee's survey. This issue is critical to an assessment of Mr Rycen's credibility and reliability as a witness. It is on the basis of my determination of this issue that I have formed the assessments of the witnesses which have resulted in my acceptance of the plaintiff's evidence.[263]

[167] As alleged in paragraph 6(c) of the defence, the defendants had their boundaries surveyed on 12 January 2004. Mr Rycen retained Mr McNee, an experienced registered professional surveyor to do this.[264] As previously stated there was evidence from Mr McNee that it was commenced on 12 January, with the marks being placed on the following day. This was done after some extensive investigations into the original survey marks in the neighbourhood.[265] He was sure of the position when these marks were placed.[266] As a result, by 13 January 2004 he was able to identify the correct position of the dispute boundary. This information was conveyed to Mr Rycen by the marks that were in the ground.[267] There is no doubt that Mr Rycen was aware of this because paragraph 6(c) of the defence states that it was "not until the defendants had their boundaries surveyed on 12 January 2004 that they discovered the location of the true boundary between the plaintiff's and the defendant's property". Exhibit 3 is the Identification Survey which was drawn up as a result, and signed on 25 February 2004.

[168] Mr McNee identified his "finders" stakes and survey pegs in the photographs in Exhibit 6, taken by the plaintiff on 21 January 2004. These photographs show the extent of the excavation across the dispute boundary into the plaintiff's property relative to the position of those pegs.

[169] Mr McNee's evidence was that because this was a particularly difficult survey, he assisted his surveyors on the site.[268] He said that from his recollection the area between the pegs on the dispute boundary had not been excavated and no earthmoving equipment had been through it.[269] Mr McNee was not cross-examined. Consequently, there was no contest to his evidence. As previously indicated, Mr Rycen's father, on the basis of his farming experience, gave evidence that the soil had been dug up for no longer than a day. He was also not cross-examined.

[170] This evidence was in accordance with the defendant's original pleading, which was filed on 3 March 2006, a little over two years after these events. As set out above, until leave was given to amend the pleading on 30 April 2009, paragraph 6(k) was:**

"Before beginning to work on the dispute boundary the male defendant marked out the boundary line (which had previously been identified by survey) so as to ensure the coppers logs retaining wall was constructed on the defendant's land." (my emphasis)

**The fact that the statement of the boundary line being previously identified by survey was incorporated in brackets suggests those words were chosen advisedly.

[171] This amendment was made in conjunction with the amendment to paragraph 6(m) that Mr Rycen authorised the excavation contractor to take away a small amount of extra soil from "what he believed to be" the plaintiff's land. Consequently, Mr Rycen gave evidence the excavation was done before he got the survey done. His evidence-in-chief was that the excavation was done on 6 or 7 January 2004.

[172] However, this evidence is in turn contrary to his acceptance under cross-examination that, in his conversation with the plaintiff at the dispute boundary on 20 January 2004 after excavation had been done, he probably said:**

"The reason I had to go ahead was I considered the wall was a safety risk. I had to start yesterday." (my emphasis)

**[173] As I have previously observed, the reference to having to start yesterday is to 19 January 2004, which is subsequent to the placing of the McNee survey marks. The defendant's pleading accepts this survey was on 12 January 2004.[270]

[174] Mr Rycen responded to my questions, by saying that the purpose of doing the survey was to ensure he was in the right with where he built his retaining wall.[271] However, he started the excavation before the survey because he was in a hurry to get something done.[272] However, as he agreed that in hindsight it would have made sense to get the survey done before he undertook this,[273] I do not consider it made sense for him to proceed in this sequence.

[175] Therefore, I reject Mr Rycen's evidence that the excavation work was done before the survey. In coming to this conclusion I note that Mrs Rycen did not assert that the work had been carried out earlier, and the excavator contractor, whom Mr Rycen knew, was never called as a witness.

[176] This is not the only aspect of Mr Rycen's evidence which undermines his credibility as a witness. He gave evidence that he had no notice Mr Keyworth was attending at the dispute boundary on April or May 2007 to construct the retaining wall in accordance with the court order to fence. This was despite the fact that three letters were sent by facsimile from the plaintiff's solicitors to his solicitor about this issue.

[177] The letter dated and faxed on 24 April 2007 advised that the builder, Mr Keyworth, estimated "he will start either the last week in April or the first week in May".[274] Mr Rycen said he thought he received this letter after builders turned up.[275]

[178] The letter dated and faxed on 14 May 2007 advised that the work on the dividing fence had not commenced, for reasons that were explained, and there would be an endeavour to provide one week's notice of the commencement.[276] Mr Rycen could not say if he received a copy of this letter before the building work commenced.[277]

[179] The letter dated and faxed on 22 May 2007 advised that the builder would be in a position to commence work on the dividing fence on 28 May 2007.[278] Mr Rycen thought that work started on that date. However, he claimed not to recall receiving a copy of the letter prior to that date.[279]

[180] It was never challenged that these letters were faxed to Mr Appleton prior to the work commencing. It is so unlikely that Mr Rycen neither received a copy of these letters nor was advised of their contents before this, that I give no credit to his claim that the builder arrived unannounced to construct this wall. This also adversely affects my general assessment of Mr Rycen's credit.

[181] Consequently, I have formed an adverse view of Mr Rycen's credibility and reliability, except where there is independent evidence to confirm his account. An example of this is the evidence of the plaintiff's father that the wheels of the Dingo could not come on to the plaintiff's land on 21 February 2004 because of the coppers logs. This was contrary to the plaintiff's evidence that at one stage the Dingo was on his side of the boundary, although this could be interpreted as a reference to the bucket of the Dingo being over the boundary in the course of dumping the soil. Therefore, as stated in paragraph [44], I proceed on the basis that the wheels did not come onto the plaintiff's land, consistent with Mr Rycen's evidence.

[182] However, having observed the plaintiff and his father as witnesses, my general assessment of them is that they are credible and reliable witnesses on the matters in issue.

[183] The plaintiff seeks restitutionary compensation damages at $16,632 on the basis of the quote of Bob Ryan's Home Improvements Pty Ltd or alternatively at $15,314 or $10,000. The claim for $15,314 is the difference between the sum paid to Keyworth Builders to construct the retaining wall and the sum received from the defendants for this. The claim for $10,000 is for diminution of the value of the land. As indicated, it is accepted that the plaintiff is not entitled to both diminution in value and the reasonable cost of reinstatement.

[184] It is convenient to consider this claim together with the claims for $5,000 for trespass to land and removal of soil, and $1,500 for destruction of the three bushes.

[185] The plaintiff argues that the restitutionary compensatory damages sought are the natural and probable consequence of the defendants' trespass. In support of the proposition that the measure of damages in this case is in accordance with the quote for the erection of a retaining wall, it is contended that the reasonable cost of reinstatement is the typical basis used to compensate the plaintiff whose land has been physically damaged.[280] In relation to this, it has been held in Port Stephens Shire Council & Anor v Tellamist Pty Ltd [281] that diminution in value and reinstatement appear to be the most commonly employed bases for assessment. As said by Santow JA (with whom Giles JA agreed) in that case:[282]**

"The third category, and the one into which the facts of this case most readily fit is where the trespass involves actual physical damage to the land. In these cases, it is said by Professor Fleming the measure of damages is equivalent to that for negligence. Fleming, The Law of Torts, p 53. Two alternative bases for assessment have been established to compensate a plaintiff whose land has been physically damaged: (1) the diminution in value, or (2) the reasonable cost of reinstatement."

**[186] It is submitted that in this case the excavation of a retaining wall is the reasonable cost of reinstatement because it is the only practical way of putting the plaintiff back in the position he would have been in if the trespass had not been committed.[283] Further, it is argued that the plaintiff should not have needed to go to the Magistrates Court to get the order to fence; and this was simply the mechanism which facilitated the fence to be built.[284] It is submitted that reinstatement of the physical damage to the land cannot be properly achieved by the defendant simply backfilling the damaged area with soil and compacting it with a digger.[285]

[187] The defendants respond that the work involved goes far beyond what is necessary to repair the damage.[286] It is also submitted that the plaintiff having repaired the damage, the cause of repair does not flow from any action of the defendants, but from the court order to fence;[287] and as a result any damage caused by the defendants has been subsumed in the building of the new retaining wall and building up the plaintiff's land. This was initially put in the written submissions on behalf of the defendants as follows:[288]**

"1. Rectification has been carried out and is subject of final order of the Magistrates Court. The issue of compensatory damages is res judicata;

1. The claims for rectification (paragraph 15(a)), even if admitted, would simply duplicate the costs already incurred in the completed process of rectification."

**However, in an addendum to that submission, it is accepted that the issue is not res judicata because the cause of action is obviously different from the Magistrates Court proceedings. In the alternative, it is argued that the same questions of law which arise under paragraph 15(a) of the Statement of Claim arose in the Magistrates Court and therefore an issue estoppel arises.

[188] However, r 150(1)(e) of the UCPR requires that estoppel must be specifically pleaded. Further, as set out in paragraph [93] of this decision r 150(4)(a) and (c) require in a defence that a party plead a matter, the party alleges makes a claim of the opposite party not maintainable or if not specifically pleaded might take the opposite party by surprise. Therefore, in Court Form, Precedents & Pleadings Queensland, it is said under the heading of Res Judiata and Issue Estoppel that such a defence must be specifically pleaded.[289]

[189] As the defendants did not specifically plead either of these defences, I agree with the plaintiff that it is too late to raise them for the first time in final addresses,[290] particularly when the issue on which it is now sought to base them has clearly existed on the face of the plaintiff's pleadings since 11 August 2005. This is a case in which the defendants sought and were given leave to amend their pleadings in another respect on the first day of trial. It would be unjust to allow the amendment of the pleadings at this late stage to enable the defendants to raise this further matter which has clearly taken the plaintiff by surprise. This is different from the defendants' failure to comply with the requirements of the UCPR in belatedly arguing that the defendants were not liable to the plaintiff in trespass and nuisance. Because, in that case, the plaintiff should have pleaded his position in relation to this and to have been in a position to prove his possession if required.

[190] Accordingly, I agree with the plaintiff that, as the defendants did not plead res judicata or issue estoppel, there are no facts or circumstances before the court which allow me to rule on these issues. Therefore neither issue arises in this case.[291]

[191] In determining what damage is a natural and probable consequence of the defendants' admitted trespass to the plaintiff's land, the starting point is my finding that the excavation of the land and the removal of earth and other material from it for a distance of up to one metre caused permanent harm to the plaintiff's reversionary interest, unless something was done to rectify it.[292] As the defendants have conceded, the excavation caused the soil on the plaintiff's land to crumble and fall into the excavation, such that the natural support of the land has been withdrawn and some of the land subsided into the excavation. Although the defendants contend that this withdrawal of support and subsidence is minimal, I accept the plaintiff's description that features "like stress fractures" started to appear. In these circumstances, he was entitled to be concerned that slowly but surely everything would fall in because of the removal of support from the soil, and to be concerned as to where he stood for insurance purposes with his house as a result of subsidence, and for his tenants and the public if they hurt themselves. I do not consider this to be a minimal consequence.

[192] In these circumstances, I consider the plaintiff was entitled to reinstate the physically damaged land to the same state it had been before the trespass, without relying upon the defendants to do so or for the conclusion of court proceedings, which in fact took three years and nine months to progress from the institution of proceedings until trial. He was then entitled to claim the reasonable and probable cost of the reinstatement as the natural and probable consequence of this trespass.

[193] I appreciate that the defendants say that they have always been ready, willing and able to fill in the excavation to a good and workmanlike standard, and the plaintiff has prevented them from doing this. However, I agree with the plaintiff's argument that there is not a sufficient evidential basis that Mr Rycen was trying to reinstate the plaintiff's land on 21 February 2004 by using the Dingo to deposit soil on the land behind the coppers log fence.[293] In accordance with the adverse view that I have formed as to Mr Rycen's credibility and reliability, I do not accept this was his motive, as opposed to dumping the soil and other material there for his own convenience. I accept the plaintiff's evidence that on 20 January 2004 Mr Rycen told him that he was going to put up a coppers log wall and dump everything in behind it.[294] In any event, as the plaintiff says, the only way in which the defendants could reinstate the plaintiff's land in this manner was by committing the further trespass which they were not entitled to do.[295] As Martin J observed in Traian v Ware:[296]**

"The law does not favour the remedy of abatement in preference to legal action (Lagan Navigation Co v Lambeg Bleaching, Dyeing and Finishing Co Ltd, [1927] AC 226, at pp 244-5), and requires strong reason to justify it when it involves entering upon the land of another".

**[194] Further, the plaintiff was entitled to insist that any restatement be professionally undertaken. This has always been his position concerning all aspects of the boundary dispute. At best, as asserted by the plaintiff, on the evidence before the court, Mr Rycen is a "home handyman".[297] The plaintiff's view is that gradual subsidence is not prevented by just backfilling and compacting soil.[298] As Mr Crow put it, there is no engineering evidence that this would have fixed the problem.[299] Mr Rycen's evidence was that he constructed the coppers log retaining wall to keep the soil there.[300] I also accept the plaintiff's evidence that this retaining wall was not a permanently satisfactory solution because it was collapsing under its own weight. Mr Appleton's cross-examination of the plaintiff about this impliedly accepts that it may have been no more than a temporary solution.[301]

[195] In these circumstances I agree with the plaintiff that the erection of a retaining wall on the dispute boundary was the only practical way of reinstating the plaintiff's land to the position before the trespass had been committed. I find that this was achieved by the erection of the dividing fence which was constructed to a height level with the fall of the embankment in accordance with the order to fence by the Magistrates Court.

[196] This fence was constructed for $24,814, of which $9,500 has been reimbursed by the defendants. The submission on behalf of the defendants proceeds on the basis that Mr Crow submitted the plaintiff is entitled to the difference between one half of the cost of the construction of the dividing fence and the amount the plaintiff actually recovered from the defendants.[302] A careful reading of the transcript of the hearing confirms, consistent with the plaintiff's written submission in reply, that alternatively to assessing damages of $16,632 on the basis of the Bob Ryan's Home Improvements Pty Ltd quote, the proper measure is the sum of $15,314, which is the entire building costs of the fence less the amount already paid by the defendants.[303]

[197] I find that the measure of damages as a natural and probable consequence of the trespass is the actual building costs of this wall which reinstates the plaintiff's land by following the natural contour. This is the sum of $15,314.

[198] I have not assessed damages as a sum equal to one half of the difference between that cost and the amount already paid by the defendants, despite the Magistrates Court order to fence, requiring the defendants pay the applicant half the costs of the fence. This is because the cost of reinstatement was the cost of construction of the fence. This is what the defendants are liable to pay. They have not paid this full amount to date. As I put to Mr Crow during argument, the Magistrates Court proceeding was merely the mechanism to facilitate the building of the fence. The determination of the distribution of the building costs by that court is not determinative of the assessment of damages by this court, particularly where the defendants have not made full payment in accordance with that order.

[199] Therefore I assess restitutionary compensatory damages as $15,314. Consistent with paragraph [148] of this decision, these damages are for both trespass and nuisance. Further, I am satisfied the measure of the damages to the reversion would be the same, if it is necessary to sue on this basis rather than for trespass.

[200] As it is properly accepted by the plaintiff that the claim for diminution in value of land is an alternative head of damage to reinstatement, I make no order for it.

[201] I also make no order for damages concerning trespass to land and removal of soil and the destruction of the three bushes. Although I accept the proposition that the plaintiff is entitled to have his right of property vindicated by a substantial award of damages,[304] I consider he is sufficiently compensated by the damages awarded for reinstatement. I note that in the final paragraph of the plaintiff's submissions in reply, the judgment sought does not make any claim under these heads of damage.

[202] In support of the plaintiff's claim for aggravated compensatory damages, Mr Crow refers to his unchallenged evidence that, as a result of the defendants' action in excavating the land and the consequent arguments the plaintiff had with Mr Rycen, he has had significant stress and worries, has both lost and gained weight, and developed teeth grinding and associated jaw problems for which he has spent $3,000-$4,000 treating.[305]

[203] He also refers to the plaintiff's evidence that although he was unsure if "violated" was the appropriate word to describe his feelings about the events of 20 January 2004, he submits it is the appropriate word.

[204] Although the claim is for $50,000 for "aggravated and exemplary damages", in the plaintiff's Submissions in Reply separate claims are made for aggravated compensatory damages and exemplary damages in the sum of $25,000 each.[306]

[205] It is submitted on behalf of the defendants that:[307]**

" 1. UCPR 150(1)(b) requires 'every type of damage claim ... including exemplary damages' to be pleaded.

1. Aggravated damages and exemplary damages are distinctly separate categories of damages, one being consequential and the other discretionary.

2. Therefore, the correct application of UCPR 150(1)(b) requires each separate amount of damages to be pleaded ..."

**[206] In relation to the factual issues, there is no denial that on 20 January 2004 and 21 February 2004 Mr Rycen disputed angrily with the plaintiff, and in doing so used language that all members of the general public once would have considered obscene, and some still do. Mr Appleton said the core of the dispute on both days was their different views on the type of wall to be constructed. He accepted that Mr Rycen referred to the plaintiff's father as an idiot. However, he submitted there was no evidence he directly insulted the plaintiff.[308]

[207] It is argued that the confrontation should be seen as part of the history of ongoing negotiations about the type of retaining wall to be constructed. Against this background it is submitted negotiating styles, even among skilled negotiators, vary greatly, and Mr Rycen's negotiating style may rightly be characterised as predominantly aggressive and angry. Further, it is said universal human experience suggests that such unpleasant incidents as those which took place and the hurt feelings they cause are part of the transitory exigencies of the day, and are too trifling to merit an award of damages.[309]

[208] Finally, it is argued the plaintiff gave evidence of "mental trauma" within the meaning given to that phrase in TCN Channel Nine Pty Ltd v Anning[310] and that such an injury must be proven to be the natural and probable consequence of the tort. It is submitted that there is no such proof here, and such injuries need to be proven by appropriate expert reports.

[209] With reference to the defendants' criticisms of the plaintiff's pleadings as being deficient in its allegations of damages, it is accepted that r 150(1)(b) of the UCPR requires every type of damages claimed, including, but not limited to, special and exemplary damages, must be specifically pleaded. Rule 155(1) requires the pleading to state the nature and the amount of damages claimed. In TCN Channel Nine Pty Ltd v Anning, the trial judge combined aggravated and exemplary damages in a single award. It was submitted that the failure to separately identify the amount awarded as exemplary damages was in error.[311] After analysing the distinction between aggravated and exemplary damages that emerges from the discussions which I have previously referred to, it was held that this submission should be accepted because:[312]**

"One purpose of exemplary damages is to mark disapproval by the Court of a defendant's conduct and to do so in a way that deters that person and others from acting in that way. This purpose is best served if a discrete amount is awarded by way of exemplary damages. It is also impossible to compute interest on compensatory, including aggravated damages when exemplary damages are included in a single award of damages."

**[210] If as a result of this case rr 150(1)(b) and 150(1) of the UCPR are to be interpreted as requiring aggravated and exemplary damages be separately pleaded as submitted by Mr Appleton, even accepting that expecting a plaintiff to comply with specific pleading provisions is not a matter of mere pedantry,[313] I apply what I have said at paragraph [157] of this decision. At no time did the defendants write to the plaintiff under r 444 of the UCPR specifying any complaint about any aspect of the pleadings and no application was brought for further and better particulars under r 161(1) of the UCPR. There is nothing in the pleading that is capable of taking the defendants by surprise within the meaning of r 155(4) of the UCPR. It is clear from the submissions made by them about factual issues that they are fully alert to the case they have to meet at trial concerning, inter alia, aggravated damages. In these circumstances, I consider the failure to plead the claims for aggravated and exemplary damages separately does not bar me from considering these claims now the quantum claimed in each case has been separately itemised in the submission and the defendants have made detailed submissions as to why I should not award damages under either of these heads of damage.

[211] As the authorities referred to above establish, aggravated compensatory damages may be awarded for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner and motive for which the defendant did it. As said in Gray v Motor Accident Commission, the reaction of the party who is wronged for high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. As also said in TCN Channel Nine Pty Ltd v Anning:[314]**

"Humiliation, injured feelings and affront to indignity [sic] may be a natural and probable consequence of intrusion by the media on private property. Such damages is compensable as aggravated damages."

**[212] I agree with Mr Appleton that the conduct of Mr Rycen, including the two confrontations with the plaintiff, must be seen as part of the history of ongoing negotiations about the type of wall to be constructed. It was accepted by Mr Rycen that despite these negotiations, which commenced in October 2003, they could not reach agreement as to the appropriate form of the retaining wall. He accepted the plaintiff wished to construct a besser brick and concrete retaining wall. The defendants claim not to recall the plaintiff saying that he wanted a properly engineered wall. However, given my assessment of the plaintiff and Mr Rycen as witnesses, I accept that the plaintiff said this. The defendants' pleading accepts that in or about November 2003 there was another conversation about this, which ended in no agreement.[315]

[213] Mr Rycen's evidence was that his response to the plaintiff during these conversations was, "fair enough, we'll work something out about it later". I accept the plaintiff's evidence he told Mr Rycen that, due to the costs involved, he would prefer to save up the money and do it in the financial year commencing on 1 July 2004. I also accept he had rejected a proposal from Mr Rycen that included excavating out from his land. I am satisfied this was the status of the negotiations on 20 January 2004. There is no suggestion Mr Rycen had attempted to contact the plaintiff prior to this date with any advice that he intended to excavate along the dispute boundary until 19 January 2004. This is confirmed by the following evidence-in-chief of Mr Rycen:[316]**

"What was the last time before the 20th January that you had contact with him?-- I tried ring him on the 19th -----

Was that the only time you tried ringing him?-- Well, earlier I had rung him about those - about the other bushes.

When was that?-- That was - that was 2003 that I rang him about these poisonous bushes."

**[214] When the plaintiff arrived at his property, Mr Rycen said he wanted to talk to him about the remaining tree.

[215] By the time the plaintiff arrived, despite the status of the negotiations and his having no prior notice of Mr Rycen's intentions, the earthmoving equipment had already been used to cut into his land. This was without his knowledge or consent. It is not surprising in these circumstances the plaintiff "insisted that the defendant ceased encroaching" on his land.[317]

[216] I have previously rejected Mr Rycen's evidence this excavation work was done before Mr McNee's survey. It follows I conclude that when he marked out the dispute boundary line for the excavator operator, he knew the surveyed position of that boundary. Having come to this conclusion, I also find that he intentionally caused the excavator operator to excavate on the plaintiff's land at all times. This was despite his knowledge of the plaintiff having previously rejected his proposal that included excavating out from his land. I reject his evidence that any aspect of the transgression was unintentional.[318]

[217] I find he proceeded in this manner without first advising the plaintiff because he had hired the excavator operator after he had come to an agreement with the neighbour on his western boundary and he had the equipment on the land. It therefore became urgent to utilise the equipment while it was there for this purpose. He agreed he probably said, "I had to start yesterday" during his conversations with the plaintiff on 20 January 2004. This was in the context of his concern that the rock wall was a safety risk. Although, as indicted, he agreed during his evidence that he never raised any question of the wall being dangerous until well after the work had commenced.

[218] It is in this context, Mr Rycen's angry and aggressive approach to the plaintiff's legitimate insistence he cease encroaching on his land is to be considered. I reject any suggestion on his behalf that this approach was part of a negotiation between the parties.

[219] I consider the way in which Mr Rycen conducted himself on this occasion is an integral part of the manner in which he committed the wrongful physical act against the plaintiff's land.

[220] I find as alleged by the plaintiff, and supported by his father, Mr Rycen's aggression involved him being agitated, abusive and swearing. The plaintiff's father was concerned from Mr Rycen's body language that it could become physical. Mr Rycen accepts he could have told the plaintiff that he was, "fucking doing you a favour". There is no evidence the plaintiff was swearing at him. Mr Rycen simply said he did not know this. He suggested the plaintiff was yelling at him. It would be understandable if the plaintiff raised his voice in these circumstances, because Mr Rycen's response to the plaintiff was high handed in the extreme, in circumstances in which he had intentionally removed earth from the plaintiff's land. It is not surprising the plaintiff felt annoyed, angry and confused about where this attitude was coming from. I accept the plaintiff's evidence that he was not abusive towards Mr Rycen. It would not be surprising if he felt violated in these circumstances.

[221] Importantly, Mr Rycen accepts the plaintiff told him to stop work and not do anything else until there was a written agreement as to what would occur.

[222] I find that despite the plaintiff legitimately confirming he wanted the trespass and nuisance to stop, Mr Rycen removed further soil from the plaintiff's land. This is because when the plaintiff and his father left the property on 20 January 2004, about four metres of the rock wall remained. By the time the plaintiff returned at 5.30-6 am next day, all but about half a metre to a metre of this wall had been removed. This was confirmed by the unchallenged evidence of the plaintiff's father. Mr Rycen does not deny that the remaining part of the wall had been removed. He believed the remaining part of the wall had been removed; and he did this himself over the next few days or when he was building the coppers log wall. Although, he conceded he could have removed the remaining rocks that afternoon, because he was upset. He did not appear to exclude that the excavator was being used to tidy up the area after he had dismantled it with a shovel.

[223] Further, Mr Rycen again trespassed on the plaintiff's land on 21 February 2004. This ignored the plaintiff's telling him to stop work a month earlier. It also ignored the letter of 4 February 2004 which was received by him. It is clear from this letter that the previous work had been done without the plaintiff's approval and without consultation; and unless a satisfactory arrangement was entered into within seven days, application would be made for an injunction restraining him from further work.

[224] The trespass involved dumping soil onto the plaintiff's property. In cross-examination, Mr Rycen accepted he continued this after he was told to stop, by dumping two or three more loads. Although again the plaintiff was entitled to insist on this, Mr Rycen was very agitated and angry, called the plaintiff and his father idiots, and told the father to "fuck off". It is not surprising that Mr Rycen was speaking loudly, due to the noise of the machine. However, his response to a legitimate approach by the plaintiff, who was supported by his father, was again unwarranted and high handed. Again, it is not surprising the plaintiff felt upset, angry and frustrated. Although he did not expressly mention he felt violated on this occasion, I consider that this was just another way of expressing the same feeling.

[225] Although I proceed on the basis that, as was said in TCN Channel Nine Pty Ltd v Anning, humiliation, injured feelings and affront to dignity, which may be compensable as aggravated damages, is different to mental trauma or any form of personal injury, the plaintiff's suffering of physical detriment and mental anguish as a result is evidence he suffered humiliation, injured feelings and affront to his dignity as a result.

[226] In summary, I find that Mr Rycen's behaviour in intentionally trespassing on the plaintiff's land on two occasions within one month, his aggressive attitude towards the plaintiff's legitimate requests for him to stop, and his ignoring of these requests were done out of malice and spite. The high-handed manner of this conduct was such as to cause feelings of violation in the plaintiff which injured his feelings, humiliated him and affronted his dignity.

[227] I find this is a reason for awarding aggravated damages to compensate the plaintiff for the wrong done.

[228] It is submitted on the plaintiff's behalf that these damages should be set at $25,000, which is the same level as in TCN Channel Nine Pty Ltd v Anning. However, every case depends on its own facts, and that case concerned a trespass to land by a television reporter and cameraman filming on business premises and attempting to conduct an interview with a view to broadcasting. Those are different circumstances to the present case.

[229] I find the decision of Forde DCJ in Dunn & Anor v Howard & Anor [2001] QD 030 of greater assistance. In that case the plaintiffs sought both aggravated and exemplary damages for trespass by the defendants for placing the spoil from an excavation on their land contrary to a permit, without their consent. However, the defendant believed he had permission to deposit the spoil. He had done so previously. It was the extent of the spoil which caused the plaintiffs to react in a negative fashion. The spoil was on the land for 15 months. It interfered with the plaintiffs' access to part only of the Brisbane River from which the excavation occurred and which the plaintiffs used to water their stock. In this case, the defendants did not act in the high-handed manner Mr Rycen did in this case. However, it is relevant there was no separate identification of the amount awarded for aggravated damages. His Honour did not say the award did not incorporate both types of damages.

[230] I have come to the conclusion that the quantum of damages should exceed those awarded in this case due to the more serious manner in which Mr Rycen conducted himself. However, I do not assess it at the level sought by the plaintiff.

[231] In the circumstances of this case, I assess aggravated compensatory damages for both trespass and nuisance as $15,000. Again, it would make no difference if I was assessing damages in respect of the reversion, if it is necessary to sue on that basis rather than for trespass.

[232] It is submitted that an award of exemplary damages should also be made in the present case, having regard to the deliberate destruction of the plaintiff's land and the abuse of the plaintiff and his father. Reference is made to Mr Rycen's swearing and aggressive conduct and calling the plaintiff's father an idiot. It is argued that Mr Rycen's conduct is deserving of punishment and is contumelious, high-handed and insolent. Of particular significance, it is submitted that if, as Mr Rycen says, he knew he had excavated into the plaintiff's land, why would he commence swearing at the plaintiff on 20 January 2004 and continue with swearing at the plaintiff and his father on 21 February 2004?[319]

[233] On behalf of the defendants, while it is conceded that perhaps Mr Rycen's actions were unwise, it is submitted they were not high-handed, outrageous or contumely. It is submitted that he committed a blunder for which, having been engaged in ensuing litigation, he has paid most dearly.

[234] In arguing Mr Rycen's behaviour did not exhibit conscious and contumelious disregard of the plaintiff's rights and was not high-handed or outrageous, Mr Appleton relies on the following matters:[320]

• the defendant acted out of a sense of urgency believing, as he did, the old boulder wall was dangerous to children;

- tried on a number of occasions to contact the plaintiff; and

- erected a string line where he believed the boundary to be so as not to encroach onto the neighbouring land;

• the encroachment (if such there be) occurred on part of the plaintiff's land which was overgrown, steep and very difficult to maintain;

• the defendant had formed a genuine belief that, to the extent this part of the plaintiff's land had been maintained in the past, it was maintained by the occupants of the defendants' property. In fact, the defendant himself had cleaned it up a couple of times;

• the defendant had not set out with the intention of encroaching onto the plaintiff's land;

• the defendant excavated beyond the string line only when it became necessary to prevent loose soil from falling into the excavation;

• the defendant believed the encroachment was trivial, especially having regard to the condition and quality of the area and the way it has been used and maintained in the past.

• when confronted by the plaintiff, the defendant refrained from taking further soil from the plaintiff's land and he said to the plaintiff, "What will I do about this machinery arriving today and all this loose material lying around everywhere?"

• the defendant was always willing, even anxious, to repair the damage done to the plaintiff's land;

• the defendant believed the vegetation he removed from the plaintiff's land was either worthless or poisonous; and

• unlike the defendants in Traian v Ware, the defendant made no attempt to hide his activities. On the contrary, he made many attempts to notify the plaintiff of them.

[235] Mr Appleton also submits, with reference to the defendants' personal and financial circumstances, the same factors should be taken into account as would be the case when determining the level of a fine to be imposed.

[236] As held in TCN Channel Nine Pty Ltd v Anning and emphasised by Mr Appleton, exemplary damages are awarded rarely and require something more than a finding of fault. However, in circumstances in which I have concluded, contrary to Mr Appleton's submissions, Mr Rycen intentionally trespassed on the plaintiff's land on two occasions and acted in a high-handed manner, activated by malice and spite, I also find he showed a conscious and contumelious disregard for the plaintiff's rights. Mr Rycen's aggressive behaviour towards the plaintiff and his father on both occasions, despite his knowledge of excavating without permission on the plaintiff's land, is of particular relevance. The fact is he did not seek permission before doing this in circumstances where the plaintiff had previously rejected a proposal that included excavating out from his land. There was nothing which inhibited him seeking such permission.

[237] I am therefore satisfied a substantial award of exemplary damages is required to punish Mr Rycen for this conduct and to deter him and others from like conduct. In XL Petroleum Pty Ltd v Caltex Oil (Australia) Pty Ltd reference was made with apparent approval to Merest v Harvey where substantial exemplary damages were awarded for a trespass of a high-handed kind, which occasioned minimal damage.[321] As I have found, the damage in this case was not minimal.

[238] I have not made these findings lightly and I have made them because the considerable seriousness and deliberation of this conduct warrants this remedy. It is not a case like Costi v Minister of Education,[322] where a momentary loss of self control resulting in a teacher assaulting a student was held not to call for an award of exemplary damages to punish or make an example of the teacher.[323]

[239] This is not a case in which the plaintiff's own conduct was responsible for the commission of Mr Rycen's tortious acts, such as to mitigate or prevent the award of exemplary damages because of provocation.

[240] In assessing the quantum of exemplary damages, in accordance with Pollack v Volpato,[324] I have regard to the means and resources of the defendants, to determine their capacity to pay the amount ordered.

[241] The personal and financial circumstances of Mr Rycen and his wife are set out in paragraphs [72] to [76] of this decision. As Mr Crow submits, whilst they are not wealthy, there is no evidence they are in poor financial circumstances.[325] He properly makes the point that, in the absence of evidence of the value of their house at Beech Avenue, I cannot form any view of their net wealth. What the evidence does show is their financial circumstances were such as to enable them to choose to give an unquantifiable amount of the proceeds to their children rather than to pay it towards the Beech Avenue mortgage.

[242] Unlike the example given in Pollack v Volpato, there is no evidence in this case that Mr Rycen and his wife are poor, such that, if they were ordered to pay the exemplary damages of the order I assess, they would lose their home.

[243] The exemplary damage that I assess for both trespass and nuisance are $25,000. This is in accordance with the plaintiff's submission.[326]

[244] The plaintiff has sued Mrs Rycen on the basis her husband acted as her agent at all material times. It is denied in the defence that she appointed him as her agent for the purpose of dealing with the plaintiff or any other third party, or for the purposes of entering on to the plaintiff's land. Despite this, oral and written submissions by both parties are silent on this issue. It is for this reason that I have addressed the claim with reference to Mr Rycen's liability.

[245] The High Court has recognised that when it is alleged that a person has acted as the agent for another, "the actual terms of the authority pleaded are not without importance".[327]

[246] As indicated, the plaintiff's pleading goes no further than asserting that at all material times Mr Rycen acted in his own right "and as agent of the female defendant".[328]

[247] In response, the defendants deny the allegation in the terms set out in paragraph [244].[329]

[248] It is also admitted in the defence that Mrs Rycen knew and approved of her husband's plan to do construction work on the dispute boundary.[330] She enlarged on this in her evidence by saying:

• she agreed with him to do whatever he wanted to do;

• she basically just handed the project over to him; and

• if he wanted to engage a contractor he didn't have to consult her.

[249] It can be inferred that she knew that excavation would be involved because it is admitted that the "defendants hired a contractor with an excavator to work on both the western boundary and to remove the rocks on the dispute boundary".[331] It can also be inferred that she knew the location of the true boundary between the plaintiff's property and their property from 12 January 2004.[332]

• she basically "just handed the project over to her husband";

• she did not have any further involvement in it, because "that was men's business";

• she never directed her husband in the manner of the undertaking;

• she never instructed him to encroach or trespass on the plaintiff's land;

• she was not aware he had trespassed on the plaintiff's land "until it was too late".

[251] On this basis, it is denied, as set out above, that she appointed her husband as her agent for the purpose of entering onto the plaintiff's land, or for the purpose of dealing with the plaintiff or any other third party. It is these two matters which are central to the liability of her husband to the plaintiff for trespass and nuisance and for aggravated and exemplary damages.

[252] Therefore, the vital question is whether her husband was her agent for either of these purposes.[333] This extends beyond his actual authority to his apparent, implied or ostensible authority.

[253] I consider the state of the evidence is too vague for me to be satisfied on the balance of probabilities that her husband was acting with her actual, apparent, implied or ostensible authority for these purposes.

[254] Accordingly, I do not find her jointly and severally liable with her husband to the plaintiff for trespass to land and nuisance.

[255] I give judgment for the plaintiff for trespass to land and nuisance against Anthony Peter Rycen as follows:

(c) Interest at 10% per annum from 20 January 2004 to $18,734

[256] I will hear the parties' submission as to costs.**

[1] In this judgment I refer to the male defendant as Mr Rycen and the female defendant as Mrs Rycen.

[2] Mrs Rycen's liability is alleged on the basis that Mr Rycen acted as her agent at all material times. This is denied.

[10] Amended Statement of Claim filed by leave on 1 May 2009, para 5. These allegations are admitted in the defence of the defendants, para 4. The plaintiff also alleged that this was to be a "properly engineered" construction. However, the defendants do not recall this and therefore did not admit the allegation.

[20] Amended Statement of Claim, para 6 filed by leave on 1 May 2009.

[22] This paragraph is as amended by the defendants in accordance with my leave which was granted on 30 April 2009. The amendments are marked in red on the pleading and are identified in this judgment by the words which are crossed out and underlined.

[23] Submissions on behalf of the defendants, dated 21 May 2009, p 2.

[24] T 2-104 ll 52-55; see also T 2-106 ll 20-22.

[33] Amended Statement of Claim, para 7. The amendment is underlined.

[34] Defence of the Defendants, paras 6(n) and (o).

[35] These are the terms of the conversation as put to and accepted by Mr Rycen in cross-examination at T 2-103 l 45 to T 2-104 l 3. He also accepted at T 2-104 ll 22-33 that the excavator had killed the other three trees. Therefore, this must be a reference to the rubber tree. The evidence of the plaintiff's father at T 2-60 ll 1-3 also was that Mr Rycen said that he wanted to see the plaintiff "to remove the tree".

[36] T 1-50 ll 47-48. The plaintiff's father at T 2-61 ll 2-3 also described the conversation as being very agitated on Mr Rycen's part and that Mr Rycen swore a lot. At T 2-63 ll 34-40 he said that he felt that this could become physical. He did not like Mr Rycen's body language. As a result, he made up a story about breaking it up because he had an appointment elsewhere. He was not cross-examined.

[50] Amended Statement of Claim, para 8.

[51] Defence of the Defendants, para 7.

[58] T 1-56 ll 46-55. Although with reference to Exhibit 6, Photo 9, he estimated there was about half a meter to a metre of the wall remaining.

[64] T 2-99 l 48 to T 2-100 l 10; T 2-101 ll 10-12; T 2-106 l 42.

[75] Amended Statement of Claim, para 9.

[77] Defence of the Defendants, para 7.

[78] Submissions on behalf of the defendants, dated 21 May 2009, p 2.

[80] T 2-10 ll 15-25. At T 2-11 ll 8-9 the plaintiff estimated that there may have been a cubic metre of soil in these three loads.

[93] Ibid ll 14-16. The evidence of the plaintiff's father at T 2-66 ll 13-15 was to the same effect.

[94] Ibid ll 19-21. The plaintiff's father described the whole situation as very agitated at T 2-65 ll 56-57. He said at T 2-64 l 22 that he was told to "piss off".

[101] T 2-9 ll 25-30. The plaintiff's father said at T 2-64 ll 29-30 that Mr Rycen said that he had legal advice and council advice to do whatever he wanted.

[106] T 2-109 ll 25-30; T 2-110 ll 12-16; T 2-111 ll 1-5.

[112] See Amended Statement of Claim, para 11, and Defence of Defendants, para 7.

[116] Exhibit 11(4). The plaintiff's evidence at T 2-15 l 11 is that it never regrew. This is also depicted in Exhibit 12(9).

[126] Ibid ll 34-40. The form of the question by Mr Appleton impliedly involves an acceptance by him on behalf of the defendants that the coppers log retaining wall was not a permanently satisfactory solution.

[127] Defence of the Defendants, para 9.

[130] Amended Statement of Claim, para 15(a).

[131] The quote is Exhibit 2. Consistent with Mr Appleton's "Response to the plaintiff's submission" of 5 June 2009, he consented to its admission as a quote and not as evidence of the measure of damages: see T 1-30 ll 48-49.

[138] Exhibit 16 is a photo of the fence. This has a 1.4 metre besser block retaining wall, in accordance with the court order that it be constructed to a height level with the fall of the embankment. The photo also shows another wall directly behind it, which is roughly 0.6 metres high. The plaintiff had this built on his own land to achieve the combined height of 2 metres which he desired. He paid for this additional wall: see T 2-22 ll 1-21; see also Exhibit 18, which is the relevant tax invoice; and Exhibits 22 and 23, which are the defendants' photos of this wall.

[139] Exhibits 17 and 19. This is the sum of $23,814 construction costs and the associated $1,000 survey.

[142] Amended Statement of Claim, para 12.

[143] Defence of the Defendants, para 8.

[145] T 2-115 ll 29-30; he said that he had heard that some of his colleagues earned in excess of $100,000 with overtime, but he did not work as much overtime as them: see T 2-115 ll 37-45.

[154] T 2-95 ll 14-18; T 2-116 ll 44-48.

[156] Defence of the Defendants, para 2.

[165] Amended Statement of Claim, para 15.

[167] Defence of the Defendants, para 14(a).

[168] (1894) VLR 539 at 543-4.

[169] Plaintiff's Submissions in Reply, dated 2 June 2009, para 4.8. The reference to paragraph 15(c) is in reality a reference to paragraph 15(d). In para 4.6, it is accepted that ordinarily a plaintiff is not entitled to both diminution in value and the reasonable cost of reinstatement. Therefore it is said that paragraph 15(d) should properly be viewed as an alternative head of damage to the reasonable cost of reinstatement and not an additional sum.

[170] Submissions on behalf of the defendants, 21 May 2009 at p 7.

[172] (1894) VLR 539 at 546.

[174] Submissions on behalf of the defendants, 21 May 2009 at p 7.

[176] Submissions on behalf of the defendants, 21 May 2009 at p 7.

[177] [1991] HCA 5; (1991) 171 CLR 635.

[179] Ibid at 647; see also Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 435 per Mason CJ, Brennan, Gaudron and McHugh JJ, where it is said:

"every unauthorised entry upon private land is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right."

[184] [2004] NSWSC 1096.

[186] Fleming J, The Law of Torts 9th ed., Law Book Co at 49.

[187] Court Forms, Precedents & Pleadings Queensland Vol 3, Butterworths at [69,001].

[189] [2007] QSC 209 at [36].

[191] Plaintiff's Submissions in Reply, 2 June 2009 at 2.4.

[193] [1959] HCA 8; (1959) 101 CLR 298.

[200] Trindade, F., Cane, P. and Lunney, M. The Law of Torts in Australia, 4th ed., Oxford at 134.

[201] (1959) 191 CLR 298 at 299.

[202] Trindade, F., Cane, P. and Lunney, M. The Law of Torts in Australia, 4th ed., Oxford at 134.

[205] [1894] 1 Ch 508.

[207] (1894) VLR 539.

[208] [1911] 1 Ch 393.

[210] [1995] 1 NZLR 22.

[215] (1894) VLR 539 at 546.

[216] Vol 3 at [51,015]. The authority is Mr D.J. McGill SC (now his Honour Judge McGill SC of the District Court of Queensland).

[218] (1882) 20 Ch 589.

[219] Submissions on behalf of the defendants, 21 May 2009 at p 5.

[220] [1911] 1 Ch 393 at 404.

[222] [1894] 1 Ch 508 at 519.

[224] (1894) 1 Ch 509 at 519.

[225] [1995] 1 NZLR 22 at 33.

[226] (1894) VLR 539 at 546.

[227] It would be necessary to grant leave on this basis in the present case because under s 10(1)(a) of the Limitation of Actions Act 1974 the limitation period of six years has expired.

[228] Plaintiff's Submissions in Reply, 2 June 2009 at 3.1.

[230] Court Forms, Precedents & Pleadings Queensland Vol 3, Butterworths, 510.1 at 52,167.

[231] Trindade, F., Crane, P. & Lunney, M., The Law of Torts in Australia, 4th ed, Oxford at 4.1.4.

[232] Fleming J, The Law of Torts 9th ed, Law book Co at 474-5. The proposition that the injury would be "such as will continue indefinitely unless something is done to remove it" is drawn for the passage in Jones v Llanrwst Urban Development Council quoted in para [125] above.

[236] As indicated, in the alternative to trespass, I am satisfied to that standard that the plaintiff can sue for damage to the reversion and that he has established that such damage occurred.

[237] These are the allegations relevant to the claim for aggravated and exemplary damages.

[238] Paragraph 12 of the Statement of Claim is also relevant to the claim for aggravated and exemplary damages.

[239] Plaintiff's Submissions in Reply, 2 June 2009, para 4.2.

[240] [2008] QCA 100 at [36].

[241] [2005] QSC 285.

[242] Ibid at [25]. Para 9 pleaded the quantum matters for the purposes of that claim.

[243] [2002] QCA 113 per McPherson and Thomas JJA, and Atkinson J at [8].

[244] Seabrook v Allianz Australia Insurance Limited & Ors [2005] QAC 58 at [15].

[245] [2007] QSC 343 at [55]- [58].

[246] (2002) 54 NSWLR 333 per Spigelman CJ (with whom Mason P and Grove J agreed) at 353 [103]-[104]. In Grosse v Purvis [2003] QDC 151 at [488] Skoien DCJ recognised that this is the proper approach to the assessment of damages in trespass actions, and stated that reasonable foreseeability is not part of the test.

[248] Ibid at 361-2. [157] As it was put in Lippl v Haines (1989) 18 NSWLR 621 at 639 by Hope AJA (with whom Gleeson CJ and Meagher JA agreed), "aggravated damages are given to compensate a plaintiff when the harm done to him was aggravated by the manner in which the act was done."

[249] [1998] HCA 70; (1998) 196 CLR 1 at 7 [15], cited ibid at 362 [158].

[250] [1985] HCA 12; (1985) 155 CLR 448 at 471, cited at 363 [163].

[251] [1987] HCA 47; (1987) 164 CLR 1 at 9.

[252] Trend Management Ltd v Borg [1996] NSWSC 588 per Mahoney P (with whom Meagher and Powell JJA agreed) at 3.

[254] [1996] NSWSC 588 at 5.

[255] (2002) 54 NSWLR 333 at 366 [185].

[256] [1998] HCA 70; (1998) 196 CLR 1 per Gleeson CJ, McHugh, Gummow and Hayne JJ, at 9.

[257] [1996] NSWSC 588 at 8.

[258] Pollack v Volpato [1973] 1 NSWLR 653 per Reynolds JA (with whom Bowen JA agreed) at 655.

[260] (2002) 54 NSWLR 333 at 363 [166].

[262] Fontin v Katapodis (1962) 10 CLR 177 per Owen J (with whom Dixon CJ agreed) at [3].

[270] Defence of the defendants, para 6(c).

[281] [2004] NSWCA 353 at [198].

[283] T 2-134 ll 1-10; T 2-135 ll 28-36.

[284] T 2-136 l 55 to T 2-137 l 3, adopting my observation during the course of oral submissions presented at the trial, it was put that in carrying out the terms of the order to fence, the plaintiff extended the damage and then rectified all the damage.

[286] Submissions on behalf of the defendants, 21 May 2009 at p 7.

[287] T 2-121 ll 38-43. In the written submissions on behalf of the defendants presented at trial, it was put that the plaintiff extended and then rectified all the damage.

[288] Submissions on behalf of the defendants, 21 May 2009 at p 4.

[289] See para [20,175]. This is in the chapter on Damages, edited by McMeekin J (as he now is).

[290] Plaintiff's Submissions in Reply, 2 June 2009, at 4.9.

[296] [1957] VicRp 28; [1957] VR 200.

[302] Submissions on behalf of the defendants, 21 May 2009 at 5.

[303] Plaintiff's Submissions in Reply, 2 June 2009, at 4.11.

[304] Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 per Gaudron and McHugh JJ at 644-655 [24].

[305] Plaintiff's Submissions in Reply, 2 June 2009 at 5.1

[307] Submissions on behalf of the defendants, 21 May 2009 at p 7.

[313] Meredith v Paloncam Pty Ltd & Anor [2000] QCA 113 at [7].

[315] Defence of the Defendants, para 6(h).

[316] T 2-79 ll 16-28. There is a suggestion in Mr Rycen's evidence at T 2-75 ll 32-43 that at some unspecified time around Christmas 2003 he phoned the plaintiff and said they were going to have to do something about this, but the plaintiff's answer was still the same.

[317] Defence of the Defendants, para 6(n).

[318] See, for example, Mr Rycen's evidence at T 2-77 ll 24-37.

[319] Plaintiff's Submissions in Reply, 2 June 2009 at 6.2 and 6.3.

[320] These are set out in the submission on behalf of the defendants presented in conjunction with oral argument at the trial.

[321] [1985] HCA 12; (1985) 155 CLR 448 at 471; see para [162] of this decision.

[322] (1973) 5 SASR 331.

[324] [1973] 1 NSWLR 653 per Hutley JA at 657-8.

[325] Plaintiff's Submissions in Reply, 2 June 2009 at 6.5.

[326] As with the awards of compensatory restitutionary damages and aggravated compensatory damages, it would make no difference if I was assessing damages in respect of the reversion, if it was necessary to sue on this basis rather than for trespass.

[327] Petersen v Moloney [1951] HCA 57; (1951) 84 CLR 91 at 95.

[328] Amended Statement of Claim, para 3.

[329] Defence of the Defendants, para 2.

[333] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd; [2004] HCA 52; (2004) 219 CLR 16; 79 ALJR 129; 211 ALR 342 at [80].