Owners SP 30339 v Torada Pty Ltd & Anor [2008] NSWSC 1154

Owners SP 30339 v Torada Pty Ltd & Anor [2008] NSWSC 1154

Torada owned the part of the boundary wall on its land, but committed trespass by demolishing the Plaintiff's half without consent. There was no established nuisance justifying an injunction. Damages are to be assessed based on the cost of constructing a wall on Plaintiff's side.

Parties
Plaintiff: Owners Strata Plan No 30339; First Defendant: Torada Pty Ltd; Second Defendant: Owners Strata Plan No 80811
Jurisdiction
Australia
Judgment Date
04 November 2008
Procedural Posture
Civil / Judgment After Trial, Awaiting Assessment of Damages and Final Orders
Outcome
Plaintiff entitled to damages for trespass, to be assessed; injunction refused.
Legal Topics
Trespass, Nuisance, Boundary Disputes, Dividing Fences, Injunctions, Damages
Real Property Equity Trespass Nuisance Boundary Disputes Dividing Fences Injunctions Damages

Case Brief

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Parties

Owners Strata Plan No 30339

Plaintiff

Torada Pty Ltd

First Defendant

Owners Strata Plan No 80811

Second Defendant

Procedural Posture

Civil / Judgment After Trial, Awaiting Assessment of Damages and Final Orders

Legal Issues

  1. 1 Ownership of boundary wall at time of demolition
  2. 2 Whether demolition by Torada constituted trespass
  3. 3 Whether a nuisance was created by removal of wall

Ratio Decidendi

Torada owned the part of the boundary wall on its land, but committed trespass by demolishing the Plaintiff's half without consent. There was no established nuisance justifying an injunction. Damages are to be assessed based on the cost of constructing a wall on Plaintiff's side.

Court Disposition

Plaintiff entitled to damages for trespass, to be assessed; injunction refused.

Orders

  • Plaintiff's claim for mandatory injunction refused.
  • Interlocutory order for temporary fence dissolved.