WALLACE V. POWELL & ORS. [2000] NSWSC 406

WALLACE V. POWELL & ORS. [2000] NSWSC 406

Defendants are liable to remove buildings from the reserved road as a public nuisance only when plaintiff is ready, willing, and able to commence road construction, justifying a mandatory quia timet injunction. Plaintiff is not entitled to damages as there is insufficient particular damage at this time.

Parties
Plaintiff: Michael John Wallace; 1st Defendant: Laurence Edward Powell; 2nd Defendant: Douglas James Powell; 3rd Defendant: Gaye Lorraine James (nee Powell); 4th Defendant: Ruth Shoobridge; 5th Defendant: Lance William Powell
Jurisdiction
Australia
Judgment Date
18 May 2000
Procedural Posture
Civil / Judgment
Outcome
mandatory quia timet injunction granted; damages denied
Legal Topics
Public Nuisance, Injunctions, Obstruction of Public Road
Torts Equity Public Nuisance Injunctions Obstruction of Public Road

Case Brief

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Parties

Michael John Wallace

Plaintiff

Laurence Edward Powell

1st Defendant

Douglas James Powell

2nd Defendant

Gaye Lorraine James (nee Powell)

3rd Defendant

Ruth Shoobridge

4th Defendant

Lance William Powell

5th Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the buildings constitute a public nuisance for which the defendants are responsible
  2. 2 Whether the plaintiff suffered particular damage entitling him to sue for injunction and/or damages
  3. 3 Whether an injunction and/or enquiry as to damages should be granted

Ratio Decidendi

Defendants are liable to remove buildings from the reserved road as a public nuisance only when plaintiff is ready, willing, and able to commence road construction, justifying a mandatory quia timet injunction. Plaintiff is not entitled to damages as there is insufficient particular damage at this time.

Court Disposition

mandatory quia timet injunction granted; damages denied

Orders

  • Defendants are to remove the buildings within a specified time (provisionally 28 days) after Council approval of engineering plans for road construction and plaintiff's notification of readiness, willingness and ability to proceed
  • Plaintiff not entitled to damages; further submissions to be heard on costs