Ciccarelli v Cavasinni Developments [2004] NSWSC 788

Ciccarelli v Cavasinni Developments [2004] NSWSC 788

The referee's report is adopted, except as to drainage (installation of drainage behind Ciccarelli retaining wall), as there was no evidence for that aspect and the referee substituted his own expertise. For the remaining aspects, the findings were based on sufficient reasoning and analysis. Damages for nuisance/negligence are awarded to the plaintiffs in the amount of $51,282. Costs of proceedings and reference are ordered in favour of the plaintiffs, but indemnity costs are not granted due to the short acceptance periods of Calderbank offers rendering their rejection not unreasonable.

Parties
Plaintiff: Frank Ciccarelli; Plaintiff: Maria Ciccarelli; First Defendant: Cavasinni Developments Pty Limited; Second Defendant: Wilhand Pty Limited
Jurisdiction
Australia
Judgment Date
02 September 2004
Procedural Posture
Civil / Post Referee Report Adoption Hearing
Outcome
Judgment for plaintiffs in the sum of $51,282; report adopted except for drainage item; costs to plaintiffs; no indemnity costs; proceedings dismissed against second defendant with no order for costs, with leave to appear on costs.
Legal Topics
Nuisance, Negligence, Injunctions, Damages, Costs, Supreme Court Rules, Referee's Report, District Court Jurisdiction
Equity Tort Civil Procedure Nuisance Negligence Injunctions Damages Costs +3 more

Case Brief

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Parties

Frank Ciccarelli

Plaintiff

Maria Ciccarelli

Plaintiff

Cavasinni Developments Pty Limited

First Defendant

Wilhand Pty Limited

Second Defendant

Procedural Posture

Civil / Post Referee Report Adoption Hearing

Legal Issues

  1. 1 Whether the construction works on Cavasinni land constituted nuisance or negligence and caused damage to the Ciccarelli property
  2. 2 Whether the referee's report should be adopted, varied, or rejected, in whole or in part
  3. 3 Extent of the referee's obligation to give reasons

Ratio Decidendi

The referee's report is adopted, except as to drainage (installation of drainage behind Ciccarelli retaining wall), as there was no evidence for that aspect and the referee substituted his own expertise. For the remaining aspects, the findings were based on sufficient reasoning and analysis. Damages for nuisance/negligence are awarded to the plaintiffs in the amount of $51,282. Costs of proceedings and reference are ordered in favour of the plaintiffs, but indemnity costs are not granted due to the short acceptance periods of Calderbank offers rendering their rejection not unreasonable.

Court Disposition

Judgment for plaintiffs in the sum of $51,282; report adopted except for drainage item; costs to plaintiffs; no indemnity costs; proceedings dismissed against second defendant with no order for costs, with leave to appear on costs.

Orders

  • Referee's report adopted except for drainage ($19,855) and paragraph 134 quantification adjusted
  • Judgment for plaintiffs against first defendant in the sum of $51,282