Geurie Enterprises Pty Ltd v Pirrottina [2019] NSWSC 1828

Procedural Posture

Equity Proceedings Concerning Private Nuisance, Trespass to Land and Easement Rights / Principal Judgment After Hearing

Legal Issues

1. 1 ["Whether the defendant's manner of exercising rights of carriageway over Lot 1, including leaving the entrance gate open, locking the gate and damaging gates, amounted to unreasonable use of the easement and actionable nuisance." 'Whether the plaintiffs were entitled to damages for pecuniary loss and time spent retrieving cattle that escaped through the open gateway.' 'Whether the defendant trespassed on Lot 1 by going onto the land to take water from Doubtful Creek.' 'Whether declaratory or injunctive relief should be granted.']

Ratio Decidendi

The defendant's repeated failure to close the gate after using the right of carriageway, together with locking and damaging gate structures, unreasonably interfered with the second plaintiff's reasonable use and enjoyment of Lot 1 for grazing cattle and amounted to actionable nuisance. That conduct caused recoverable pecuniary loss and loss of time spent retrieving escaped cattle, justifying damages of $30,000 and injunctive relief. The defendant was also found to have entered Lot 1 to take water from Doubtful Creek, constituting trespass, and an injunction was warranted to restrain future entry beyond the easement area.

Court Disposition

Injunctive relief granted and damages awarded against the defendant in nuisance; injunctive relief granted against the defendant in respect of trespass.

Orders

• ['The defendant is restrained by injunction from continuing conduct concerning the gate at the Sextonville Road entrance that constitutes nuisance, including commonly leaving the gate open after traversing the gateway.' 'The defendant is restrained by injunction from damaging, removing or otherwise interfering with...