Jack Zhao owns and has resided for 20 years in a brick house at 7 Notsolucky Street, Ryde, NSW. For many years he had an elderly neighbour who lived in a house on the property immediately next door to his home. After that neighbour died, the neighbour’s property was sold to a developer, Doggy Builders Pty Limited (“Doggy”). Doggy from the local council obtained development approval to erect six apartments on the property. The works required significant excavation and shoring work. Because the land is sandy, the council required Doggy to erect appropriate retaining walls designed by an engineer and approved by the council to secure the land.
Three months into the building work, Jack began to observe significant cracking and movement in his house. On inspection of his property, he noticed the block retaining wall, built by Doggy, was only half the size required by the council in the DA. The retaining wall appeared to have failed. Jack retained an engineer to inspect the wall. The engineer believed that the retaining wall was not properly erected and had failed, causing significant land movement under Jack’s house.
On 7 April 2022, Jack visited the site office of Doggy Builders Pty Limited next door. He spoke to the foreman of the site, Monica Argue. Jack explained what his engineer had observed and the damage caused to his home. Jack requested that the work cease immediately. Monica Argue advised Jack that they were on a tight time frame and budget, and instead of stopping the works, she would ensure the retaining wall was fixed.
On 8 April 2022, Jack awoke to find that Doggy had taken steps to secure the wall, by erecting seven huge posts and braces on Jack’s land. The posts were 7 meters long and intruded into his backyard. Jack was unhappy with this measure and again attended Monica’ Argue’s site office. He demanded that she removes the post and braces, take proper steps to repair and fix the retaining wall, and make good the damage to his yard and home. Monica said,
“As I told you, we have to finish this project in 5 months. I don’t have time to worry about your yard. Land movement is a normal part of a building, and you should have objected to the DA instead of whinging now. If you show your face in this office again, I will have to send the boys around to “escort” you back home, and then you’ll have something more to complain about than just a few posts.”
As Monica said this, she smirked and made a punching gesture in the palm of her hand.
What tortious actions and remedies does Jack have to Doggy Builders Pty Limited and Monica Argue?
1. Whether the movement of land under Jack’s house amounts to nuisance?
2. Does the erection of huge posts and braces on Jack’s land amount to nuisance and trespass?
3. Whether the words and gestures of Monica in response to Jack’s protest amount to assault?
4. Whether any defences to nuisance/trespass are available to Monica?
5. Whether the Civil Liability Act 2002 (NSW) has any application to the present case?
6. Whether Jack has any remedies available against Monica?
Rule and Application
Nuisance is that category of tort concerned with interfering with the enjoyment of one’s property. The tort of nuisance covers the indirect acts of interference with the enjoyment of the property, not the direct acts of interference.
Nuisance is of two types, private nuisance and public nuisance. The tort of private nuisance is committed when there is an unreasonable interference with a person’s land use or the exercise of a right in connection to the land. To maintain an action for private nuisance, the plaintiff must establish the following elements:
i) Right of enjoyment and use of land,
ii) Unreasonable conduct of the defendant, and
iii) The conduct of the defendant interferes with the plaintiff’s right
To establish the standing to sue for private nuisance, the plaintiff must possess land either through ownership or another possessory title. In the present case, Jack owns the house and retains possession of the same. Therefore, he has the right to enjoy and use his home. In Nicholls v Ely Beet Sugar Factory, any interference with Jack’s right to enjoyment and use of his house is actionable per se.
Unreasonable conduct causing interference with property rights
In the present case, the hasty conduct of Doggy Builders led to significant cracking and movement in his house. Here, Monica has not stepped into the premises of Jack, but their conduct of Monica has led to indirect damage being caused to Jack’s property.
Later, Jack learned from the engineer he hired that the improper erection of the retaining wall had caused significant movement of the land under his house. Here, the act of Monica has caused interference with Jack’s property right as it undermined the support of the plaintiff’s land. A settled principle of law is that where the defendant’s act has led to such invasion causing diminution of the plaintiff’s property, an action for private nuisance can lie. Here, the weakening of the foundation of Jack’s house has deteriorated the value of his property; therefore, he can bring an action for private nuisance against Doggy Builders.
Later, when Jack confronted Monica for the second time, her reply that land movement is a normal part of the building is not at all tenable. In Halsey v Esso Petroleum Co Ltd, it was held that merely because the plaintiff’s land is located in an industrial area or where the interference is likely to occur, it does not preclude the plaintiff from bringing an action for private nuisance if the damage is sufficient. Therefore, Monica’s reply to the confrontation with Jack will not affect his chance of succeeding in an action for nuisance.
Monica has erected huge posts and braces on Jack’s land to secure the retaining wall. Even though securing the retaining wall would prevent further damage to Jack’s house and further his right to enjoyment and use of land, it does not mean that Monica can take such precautions that cause a further nuisance to Jack’s property rights. A precaution taken with Monica and one that elevates the interference caused to the plaintiff’s property rights enables the plaintiff to bring an action for private nuisance
Therefore, Monica’s erection of posts and braces on Jack’s land enables Jack to bring an action for private nuisance.
The tort of trespass is defined as the direct and intentional interference with land in exclusive possession of another person. To prove the tort of trespass, the following elements must be established:
i) Exclusive possession of the land, and
ii) Direct and voluntary act of the defendant.
To bring an action for trespass to land, the plaintiff does not need to own the land always, but the exclusive possession of such land at the time of interference needs to be proved. In the present case, Jack owns the house and is in exclusive possession of his house, and therefore, he is entitled to bring an action for trespass for any act that interferes with the exclusive possession of his house.
Direct and Voluntary Act of the defendant
The tort of trespass stands committed in the following manner:
i) When the defendant enters the plaintiff’s land intentionally and without his consent.
ii) When the defendant mistakenly enters the plaintiff’s land but continues to stay even after the plaintiff’s desire for the defendant to leave the premises.
In the present case, there were indirect interferences with Jack’s right to exclusive possession of his house. However, the interference with his right became direct when Monica erected posts and braces in his yard to secure the retaining wall. In action for trespass, it must be established that the direct and voluntary act of the defendant has interfered with exclusive possession of the land.
Also, when Jack signified to Monica that he does not consent to the erection of huge posts and braces on his land, Monica chose to ignore the absence of consent and let the posts and braces remain on Jack’s land. This act of Monica also amounts to trespass on land.
Further, trespass is actionable per se. There is no need to prove damages. Therefore, in the present case, if Jack does not consider the damages caused to his property, he can still maintain an action for trespass. However, significant damage has been caused to Jack’s house, further leading to his property diminution. Therefore, Jack should bring an action for nuisance.
The tort of assault is committed when a person, by words or gestures, makes another person apprehend imminent and reasonable harm from him. To establish the commission of the tort of assault, the following elements must be proved first:
i) A direct threatening action,
ii) Reasonable apprehension of harm,
iii) An imminent threat of harm
In the present case, when Jack confronted Monica for the second time, she told him that she would have boys escort him back home, i.e., she might call the security guards if Jack bothers her again. It is a well-settled principle that words alone are enough to create a reasonable apprehension of harm.
Later, she made a gesture of punching her hand in her palm. When Jack is in her office, it is implied that such a gesture from Monica would be sufficient to create a reasonable apprehension in Jack’s mind of harm.
Further, the threat of harm is imminent in the present case because Jack is in her office, and she can accompany her words and gestures with actions without any delay. It is not required that actual harm be caused, but such words or gestures that create a reasonable apprehension of harm are enough to maintain an action for assault.
A defendant may have statutory authority to conduct a nuisance in certain instances. There is nothing in the facts to suggest Monica has statutory authority.
In the present case, Doggy Builders had the development approval only for the property of Jack’s former neighbour and not Jack’s property. Therefore, any damage caused to Jack’s land is not justified by any defence.
Further, the factor of land being sandy is a natural factor, but it does not entitle Monica to be negligent in her approach and cause damage to Jack’s property. Monica should have taken appropriate measures to prevent any damage caused to Jack’s land.
APPLICATION OF THE CIVIL LIABILITY ACT 2002 (NSW)
Monica’s action of erecting the retaining wall was not intended to cause movements under Jack’s land. Therefore, s 3B of the Act applies.
If the nuisance or trespass is caused by Monica’s failure to take reasonable care and skill, then the act will apply because of the wording of s5A. Where the nuisance or trespass occurs independently of the failure to exercise care and skill, such claims are not affected by the operation of the provisions of Part 1A and are excluded from the operation of the act.
To prevent further damage to Jack’s right to enjoyment and use of land, he can obtain a temporary injunction against the development work carried on by Doggy Builders.
For the movements under his land, cracking in his house, and erection of huge posts and braces on his land, Jack can seek damages for the diminution of his property caused by Monica’s acts.
Jack can also take self-help measures, i.e., Abatement, to get rid of the braces and posts erected on his land to support the retaining wall.
4. Specific performance
Lastly, Jack can also seek the remedy of specific performance by Doggy Builders to remove the braces and posts erected on his land.
1. Monica’s act that resulted in movements of land under Jack’s house entitles him to bring an action for nuisance.
2. If Jack ignores the damage caused by the erection of braces and posts, he is entitled to bring an action for trespass per se. However, if an element of damage is considered, he may bring an action for nuisance.
3. The words of Monica and the gesture of punching hand in palm upon confrontation for the second time amounts to assault.
4. Jack’s suitable remedies in the present case are injunction and damages.