Malliate v Sharpe [2001] NSWSC 1057

Malliate v Sharpe [2001] NSWSC 1057

The Court found that roots of the defendants' rubber tree had caused and were continuing to worsen damage to the plaintiff's path and steps, that further structural damage was likely and reasonably foreseeable, and that the defendants had since at least April 1996 sufficient information to know of and abate the nuisance but failed to do so. Damages were inadequate because root damage occurs out of sight and could recur while the tree remained. However, because the evidence did not demonstrate that removal of the tree was the only practical way to stop the nuisance, a mandatory injunction compelling removal and poisoning of the tree was not appropriate; the proper relief was an injunction...

Jurisdiction
Australia
Judgment Date
13 December 2001
Procedural Posture
Private Nuisance Claim Concerning Tree Roots Encroaching on Neighbouring Land / Final Judgment in the Supreme Court of New South Wales, Equity Division
Outcome
Mandatory injunction requiring removal of the rubber tree refused; declaration and injunction restraining the nuisance granted, with costs to the plaintiff and liberty to apply.
Legal Topics
['private Nuisance' 'tree Roots Encroachment' 'mandatory Injunction' 'adoption or Continuance of Nuisance' 'form of Injunctive Relief']
['torts' 'equity'] ['private Nuisance' 'tree Roots Encroachment' 'mandatory Injunction' 'adoption or Continuance of Nuisance' 'form of Injunctive Relief']

Case Brief

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Procedural Posture

Private Nuisance Claim Concerning Tree Roots Encroaching on Neighbouring Land / Final Judgment in the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ["Whether roots from the defendants' rubber tree encroached on the plaintiff's land and caused damage to the plaintiff's path and steps." 'Whether the defendants adopted or continued a nuisance with sufficient knowledge of its existence and likely effects.' "Whether further damage to structures on the plaintiff's land was reasonably foreseeable." 'Whether damages were an adequate remedy.' 'Whether the appropriate injunction should require removal and poisoning of the tree or restrain the defendants from permitting roots to encroach so as to cause a nuisance.']

Ratio Decidendi

The Court found that roots of the defendants' rubber tree had caused and were continuing to worsen damage to the plaintiff's path and steps, that further structural damage was likely and reasonably foreseeable, and that the defendants had since at least April 1996 sufficient information to know of and abate the nuisance but failed to do so. Damages were inadequate because root damage occurs out of sight and could recur while the tree remained. However, because the evidence did not demonstrate that removal of the tree was the only practical way to stop the nuisance, a mandatory injunction compelling removal and poisoning of the tree was not appropriate; the proper relief was an injunction...

Court Disposition

Mandatory injunction requiring removal of the rubber tree refused; declaration and injunction restraining the nuisance granted, with costs to the plaintiff and liberty to apply.

Orders

  • ["The Court declares that the presence in the land of the plaintiff known as 21 Juvenis Ave Oyster Bay of roots of the ficus elastica tree situated on the eastern boundary of the defendants' property known as 25 Juvenis Ave Oyster Bay constitutes a nuisance which is actionable at the suit of the plaintiff against...