Cosentino v Medich [2003] NSWSC 606

Cosentino v Medich [2003] NSWSC 606

The wall caused non-trivial discomfort to the plaintiff by radiated heat and excessive glare and therefore constituted a private nuisance. Injunctive relief was refused because the nuisance was minor and the proposed works would likely create further conflict; damages of $55,000, being the cost of reasonably necessary abatement work, were awarded. The Council was liable to the defendant on the cross-claim because it failed to protect the defendant's interests when settling the plaintiff's earlier claim despite an obligation to secure, if possible, a release of the defendant upon its $40,000 contribution.

Jurisdiction
Australia
Judgment Date
07 July 2003
Procedural Posture
Private Nuisance Claim Arising From Construction of a Wall, With Cross Claims / Final Judgment After Hearing
Outcome
Judgment for the plaintiff against the defendant, and judgment for the defendant against the Council on the cross-claim.
Legal Topics
['private Nuisance' 'loss of Sunlight and Views' 'radiated Heat and Reflected Glare' 'development Consent' 'damages in Lieu of Injunctive Relief' 'cross Claim Against Council']
['tort Law' 'property Law' 'local Government and Planning'] ['private Nuisance' 'loss of Sunlight and Views' 'radiated Heat and Reflected Glare' 'development Consent' 'damages in Lieu of Injunctive Relief' 'cross Claim Against Council']

Case Brief

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Procedural Posture

Private Nuisance Claim Arising From Construction of a Wall, With Cross Claims / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the wall erected adjacent to the plaintiff's unit constituted an actionable private nuisance by reason of radiated heat and excessive glare." 'Whether injunctive relief should be granted or damages awarded for the nuisance.' "Whether the defendant's liability to the plaintiff should be passed on to the Council on the cross-claim."]

Ratio Decidendi

The wall caused non-trivial discomfort to the plaintiff by radiated heat and excessive glare and therefore constituted a private nuisance. Injunctive relief was refused because the nuisance was minor and the proposed works would likely create further conflict; damages of $55,000, being the cost of reasonably necessary abatement work, were awarded. The Council was liable to the defendant on the cross-claim because it failed to protect the defendant's interests when settling the plaintiff's earlier claim despite an obligation to secure, if possible, a release of the defendant upon its $40,000 contribution.

Court Disposition

Judgment for the plaintiff against the defendant, and judgment for the defendant against the Council on the cross-claim.

Orders

  • ['Judgment for the plaintiff.' 'The plaintiff to be awarded damages in the sum of $55,000.' "The defendant to pay the plaintiff's costs a scale appropriate to the findings I have made." 'The defendant to have judgment against the Council in the sum of $55,000.' "The Council to pay the defendant's costs of the...