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  4. Pietruszkiewicz v Whitfort (No 1) - [2003] QDC 577

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Pietruszkiewicz v Whitfort (No 1)[2003] QDC 577

Pietruszkiewicz v Whitfort (No 1)[2003] QDC 577

DISTRICT COURT OF QUEENSLAND

CITATION:

Pietruszkiewicz v Whitfort (No 1) [2003] QDC 577

PARTIES:

ANTHONY JOHN PIETRUSZKIEWICZ and
CHIYOKO PIETRUSZKIEWICZ

Plaintiffs

v

CHRISTOPHER WHITFORT and
LEONIE JENNIFER WHITFORT

Defendants

FILE NO:

Plaint 3956 of 1998

DIVISION:

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

19-22 March 2002

JUDGE:

McGill DCJ

ORDER:

Judgment that the defendants pay the plaintiffs $8,781

CATCHWORDS:

DAMAGES – Tort – Measure and remoteness – Trespass to land – cutting trees – consequential loss – exemplary damages.

Backwell v AAA [1997] 1 VR 182 – applied.

Carr v Sourlos (1994) 6 BPR 13,626 – considered.

Gazzard v Hutchesson (1995) Aust Torts Reports #81-337 – considered.

Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14 - applied.

Sanders v Snell (1997) 73 FCR 569 – applied.

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 – applied.

COUNSEL:

M R Roney for the plaintiffs

N S Philipson for the defendants

SOLICITORS:

Huddleston Solicitors for the plaintiffs

Groom & Lavers for the defendants.

  1. [1]
    This is an action for damages for trespass and conversion. On and before 26 June 1998 a number of trees growing on land owned by the plaintiffs were cut down and the logs of most of them were removed from the plaintiffs’ land on to the defendants’ adjoining land. Some of the timber so removed was subsequently used in the construction of a fence along the common boundary of the properties. It is not now disputed that the defendants were responsible for cutting down the trees and removing the logs, and that the trees were cut down and the logs removed without the authority of the plaintiffs, or other legal justification: p 15. Accordingly  the only matter in issue is quantum. Nevertheless the trial took four days, during which evidence was taken from 13 witnesses. What one might have expected at first glance to be a relatively straightforward exercise has thrown up a number of issues of fact and law of some complexity.

Background

  1. [2]
    The plaintiffs were at the relevant time the owners of a parcel of land described as lot 85 on plan B34467 County of Bentinck, Parish of Pikedale. It has an area of about 150 hectares and is almost square. The land is situated just under 16 km outside Stanthorpe. An aerial photograph of the land is Exhibit 1. That shows that most of the land is covered with trees, although in some areas the trees have been largely, or in some places entirely, cleared. There is a house by a dam in about the middle of the northern half of the block, but at the relevant time the plaintiffs were living in a house on adjoining land they owned to the north-east, which was closer to a road. The trees the subject of the action were growing in the area towards the lower left-hand side of the photograph, an area marked on the photograph.
  1. [3]
    The defendants from 1989 owned and occupied land to the north-west, part of which had a common boundary with lot 85: p. 305. The relevant land was lot 6 on the plan Exhibit 2, which indicates that the common boundary had a length of 365.723m. Prior to this the male defendant and his sister had operated a goat stud in partnership on another property. It was admitted that anything done by the male defendant relevant to this action was done on behalf of the female defendant: p. 15.
  1. [4]
    The plaintiffs purchased the land at a time when they were still living in the Northern Territory, where they had lived since 1974 (p. 120), with the intention of ultimately moving there. The female plaintiff moved to Stanthorpe in March 1985, and she was joined by the male plaintiff in late 1986 after he had retired from his employment in the Northern Territory: p 21. They then lived in Stanthorpe itself until about 1993 (p. 94), when they moved to the house to which I have referred.
  1. [5]
    Prior to their moving on to the land, or even to Stanthorpe, by a document in writing described as a memorandum of lease and dated 31 May 1983 the plaintiffs leased lot 85 to the male defendant and his sister for a term of two years from 1 July 1983, for use for agriculture: p. 21.[1]  They intended to run angora goats on the property:  p. 304. By that lease they covenanted inter alia that they would “not cut down, fell, injure or destroy any growing or living timber or timber like trees standing and being upon the demised land, without the consent in writing of the lessor.”  The lease was sent under cover of a letter dated 10 June 1983, by which the defendant said inter alia:

“Could you please let me know if you are agreeable to my using timber from the property to effect the necessary [fence] repairs.”

  1. [6]
    The plaintiff[2] replied on 27 June 1983 (Ex 3) by a letter that said inter alia:

“Regarding your use of timber, it would be a shame not to make use of what is available and I give you my permission to do so, but I must trust that you will exercise some restraint and try to fit the removal of trees into my overall design for the place. There is no problem with the use of dead wood, except that if it is standing I would prefer having it pulled over so the roots come out easily and no stumps are left. Live trees may be culled if they are interfering with each other’s branches, leaving the best shaped and largest trees standing. I would prefer the maximum size taken at 6" to possibly 8" (if necessary) in diameter. Here, too, if they can be pulled down to uproot them it would be preferable, however, with tall enough stumps I should be able to pull them out in a few years time. All trees, except for the very large ones, may be removed within 20-30 feet of the fence line, providing an access track along the fence. I am trying to develop a moderately wooded, parklike environment throughout the property and if this is kept in mind there should be no problem with your getting the needed timber from the site. I hope this is not too restrictive or causes undue hardship. Should this be the case, please feel free to call or write and I am sure we can work out something satisfactory to us both.”

  1. [7]
    The defendant replied on 6 July 1983:

“My sister and I note your letter of June 27th and are in complete agreement. In regard to the felling of timber for repairs to the boundary fences I envisage that fewer than 20 posts will be required from this source.”

  1. [8]
    Pursuant to the lease the defendant ran some goats on the property. There was no formal arrangement entered into for the period after the expiration of this lease, although the defendant continued to pay rent in most years (Exhibit 3), and was allowed to continue to run goats on lot 85. On occasions the rent was increased: p. 26. At a later stage he also ran some sheep: p. 304.
  1. [9]
    The plaintiff was not aware of any particular repairs undertaken by the defendant to any fences as a result of the permission given in 1983, although he could not say positively that there had not been any: p 26. He heard nothing more about possible repairs to fences until 1993, when he and the defendant discussed on a couple of occasions constructing a new fence along their common boundary, what he described as a marsupial proof fence: p 33. The defendant asked to cut some posts for the fence, and initially the plaintiff offered to let him cut dead trees: p 33.[3]  However the defendant said that only live trees would be any good,[4] in response to which the male plaintiff said that he could take a couple of live ones but no more than 6 inches to 8 inches at the top: page 33. He said that the defendant said that he would use mostly star pickets for the fence. The plaintiff understood the defendant to mean that he wanted to cut yellow box trees. I accept this evidence. The plaintiff heard nothing more about the matter at that time, and saw no indication of any reconstruction of the fence along the common boundary. He regarded the existing fence as being in good condition. He described it as a ring-locked fence, which was apparently an open kind of wire mesh, but with barbed wire at the top: pp 18-19.
  1. [10]
    After the plaintiffs moved to Stanthorpe they began to be more active in caring for the land and visiting it for that purpose, and that increased further after they moved on to the adjacent land. No use made of the land by the plaintiffs was directly inconsistent with the running of goats on it by the defendant, but ultimately the presence of the defendant’s goats on the property came to be too much trouble for the plaintiffs; they were interfering with the style of property the plaintiffs were seeking to establish, and on occasions individual animals would die and be left on the land: p 34.[5]  In November 1997 the plaintiffs decided that the arrangement had to come to an end, and the plaintiff told the defendant that he did not want to have the animals on the land any more after the following June: p 34. The defendant did not make any particular response but did make the usual rent payment. The defendants did not dispute that as far as they were concerned the arrangement with the plaintiffs to use the land in this way came to an end at the end of June 1998. The defendant said that he was happy with this because he wanted to reduce his animal numbers anyway and did not need the land:  p. 320.
  1. [11]
    The plaintiffs, particularly the male plaintiff, have a longstanding interest in bee keeping. He was never a professional beekeeper, in the sense that he did it for a living, but he became interested and bought two hives, which developed into 17 hives while they were living in the Northern Territory: p 20. He was for a couple of years the president of the Northern Territory Beekeepers Association. The honey from the hives, once they began to multiply, was sold, either to friends or retail; he said there was always demand for homemade honey: p 20. He regards it as an interesting and profitable hobby which would supplement his superannuation:  p. 23. After they came to Stanthorpe they kept bees, with some hives on the land and, until they moved to the adjoining land, some in Stanthorpe (p. 87),. The honey produced was sold, and the plaintiff would also on occasions sell wax which was harvested with the honey.[6]
  1. [12]
    Because of his interest in bee keeping, one of the attractions of the land was that among the timber growing on it there were a number of fairly large yellow box trees: p. 226. Honey from yellow box flowers is particularly good, and commands a higher price than honey from other sources.[7]  The plaintiff said that the yellow box growing on his property was particularly useful for this purpose because there was no other significant amount of yellow box growing within a reasonable distance of the land, in terms of the catchment area of hives kept on the land. He also regarded the larger yellow box trees as particularly attractive trees (p. 48), which would fit in well with what they intended to do with the land, which as I understand it was to turn the property into a parklike environment, with most of the large trees preserved but most of the undergrowth cleared away. Accordingly the yellow box trees had a double advantage to the plaintiffs, as an attractive part of the landscape, and as a source of honey production.

The trees are cut down

  1. [13]
    On and shortly before[8] 26 June 1998 the defendants cut down or caused to be cut down 140 trees, including 123 yellow box trees, of which most[9] were topped and trimmed of branches[10] and 119 dragged on to the defendants’ property:  p. 37. I have seen a number of photographs of the stumps (Exhibit 5), which suggest that the trees were generally cut fairly close, but not particularly close, to the ground, generally wherever was convenient for whoever was using the saw. The photographs show two trees with double trunks:  Photos 27 and 30. In one case both trunks had been cut down, in the other case only one. The plaintiff said there were several with two trunks, which he counted as two logs if both were cut:  p. 38.
  1. [14]
    At the time a Mr Leahy and his wife, who had previously owned the property now owned by the defendants, were camping on part of the plaintiffs’ land (with their permission), something that they did from time to time during holidays: p 212. They had arrived two days earlier, and the previous day he had heard a tractor working in the vicinity. On Friday 26 June he saw signs of someone having dragged timber over a road on the plaintiffs’ property causing damage to it: p 213. After lunch he spoke to the plaintiff.
  1. [15]
    As a result of that conversation they went down to the south-west part of the land, where they encountered someone on a tractor towing a log. The plaintiff spoke to the person driving the tractor and subsequently found the defendant nearby pulling another log out of the bush: p 36. He had a short conversation, asking what the defendant was doing, and was told logging or cutting timber: p. 307. He asked who gave permission to do that; the defendant replied with a reference to the lease, and claimed that he had permission 15 years ago to do this: p. 214. His wife who was also there said something similar: p. 37. He said it was for the fence: p. 207. There was a brief exchange of words (p. 214-5) and the plaintiff told him to go: p. 111. After this exchange no further logs were removed from the plaintiffs’ land.[11]  The plaintiff followed the marks of the trees and discovered that they had been dragged on to the defendants’ land, just inside the gate in the common boundary, where they had been piled:  p. 38.
  1. [16]
    The defendant said that he chose to take yellow box trees because he had had experience with that species in fencing on his own properties, and because the other species he had used for fencing, iron bark, were generally much larger trees on the plaintiffs’ property, and, consistent with the 1983 letter, he was avoiding cutting the largest trees: p. 312. He said that in selecting the trees to cut he had looked for one which would provide a post for the fence, and then considered whether it met the criteria, that is, the guidelines of the plaintiff’s letter of 1983: p. 310.
  1. [17]
    It is now common ground that the defendants were not entitled under the lease or otherwise to cut down these trees and remove the logs: p. 15. Nevertheless, the question of whether the defendant believed at the time that he was may be relevant to the claim for exemplary damages. I will deal with that point later.
  1. [18]
    A few days later the defendant contacted the plaintiff by telephone and there was a short conversation in which the defendant maintained that he had permission to cut down the trees and the plaintiff asserted that he did not: p. 310. The plaintiff said that he was very upset about the trees being cut down because it interfered with his ability to earn money from honey: p. 80. The defendant offered some compensation for the trees which the plaintiff said was not nearly enough, and said he would see him in court: p. 81, 310. After an exchange of correspondence between solicitors (Exhibit 3) this action was commenced.
  1. [19]
    Subsequently the defendant used most of the logs as posts in the construction of a tall fence along the common boundary between the two properties. He described this as a marsupial-proof fence, which was intended to keep kangaroos and pigs from entering his property from the plaintiffs’ property: p. 309. He said that he grew crops on his property, and needed a fence to keep these animals out, and had built other similar fences on some other boundaries, but most of his boundaries are not fenced in this way. There was some delay before the fence was constructed; the trees were removed in the middle of 1998, and work did not start on the fence until just before Christmas 2000: p. 311. He said that the explanation for the delay was that initially he had legal advice not to touch the logs, and then when they decided to go ahead and use them they obtained a quote from a contractor who subsequently died, and then another had to be engaged.

Holding over

  1. [20]
    There was some dispute between the parties during the trial as to the nature of the relationship after the expiration of the term of the lease, which was for two years. Thereafter the defendant continued to pay the rent reserved, which was adjusted from time to time, except on two occasions when there was some specific arrangement to pay in kind: p. 305. The defendant continued to use the property as he had during the term of the lease, and no other arrangement was made redefining the relationship between the parties. Although the parties may have always intended a different arrangement,[12] what was entered into in writing was undoubtedly a lease, and subject to any question of rectification there is no doubt that there was during that two year term a relationship of lessor and lessee in respect of the land.
  1. [21]
    In those circumstances, in my opinion what happened here was that, at the expiration of the term of the lease, the lessees held over with the consent of the plaintiffs, and rent was paid and accepted, and accordingly in my opinion s 129 of the Property Law Act applied and there was thereafter a tenancy at will on the terms of the lease determinable on one month’s notice in writing expiring at any time. I do not consider however that this is of any particular significance. It seems clear that the lease forbade the cutting of timber without permission, and it is conceded that there was no effective permission given to the defendants to do what they did. It does mean that it was not a trespass merely for the defendant and his agent to be on the land, but cutting the timber was not authorised under the lease and was a breach of the lease, and is also actionable as a trespass to the land.
  1. [22]
    It does appear that the defendant and his sister did not insist on any right of exclusive possession, particularly after the plaintiffs moved to the adjoining land, and considerable use was made by the plaintiffs of the relevant land. No doubt if the male defendant and his sister had sought to insist upon their rights under the tenancy at will it would have been promptly terminated. I do not think that the resolution of this issue is of any particular significance to the outcome of the case, but for what it is worth I think that up until the expiration of the notice terminating the tenancy at will the relationship between the plaintiffs and the defendant and his sister was that provided for by s 129 of the Property Law Act.

Damages

  1. [23]
    The plaintiffs’ claim for damages may be conveniently considered under the following heading:
  1. (a)
    Rehabilitation of the land including planting substitute trees.
  1. (b)
    Consequential loss of income as a beekeeper.
  1. (c)
    Loss of amenity and enjoyment.
  1. (d)
    The value of the timber as damages for conversion of the logs.
  1. (e)
    Exemplary damages.

I will deal with these various categories for damages separately.

Rehabilitation of the land and replacement of the trees

  1. [24]
    The plaintiffs intend to rehabilitate the land by having the stumps of the trees which have been cut down dug out and removed, and by planting yellow box seedlings in their place: p. 47. The seedlings are made available when three months old, and cost one dollar each: p. 222-3. They are provided with a plastic guard and a stake at an additional cost of 93 cents: p. 223. The nursery representative who gave evidence about the seedlings also recommended the use of mulch to improve the prospects of survival: p. 53. Labour would also be involved in planting the trees, spreading the mulch, and caring for the trees. Mr Perkins, a land care consultant,[13] estimated the labour cost per tree of planting at $1.70, mulch at $1.50[14] and care over four years at $27.20:[15]  p. 237-8  This produces a planting cost per tree of $32.33.[16]  These planting costs are moderate enough but much more substantial costs are involved in digging out the stumps in preparation for planting the substitute trees.
  1. [25]
    Mr McNichol, a land clearer and earthmover, gave evidence verifying quotes he had prepared. In July 1998 he quoted a figure of $10,000 for digging out and disposing of the tree stumps[17] and cut off branches, filling the stump holes, levelling off and compacting the soil:[18]  Exhibit 9. More recently he provided an updated quote allowing for some price increase because of inflation, and the GST:  Exhibit 10. If it were appropriate to replant the trees then this work would be necessary and I accept that this would be a reasonable cost for undertaking the work.
  1. [26]
    He also quoted separately for the cost of work with a bobcat and labour to clean up after this work had been done, and to repair some snigging damage where logs had been dragged out of the forest by the defendant, at $3,000, increasing more recently to $3,696. He quoted separately for work to repair the damage caused to the farm road where the logs were dragged along it by the defendant.[19]  This involved transporting a significant amount of soil to place over badly eroded sections of the road and regrading the affected road, involving a scraper and a grader, at a total cost of $1,000, or more recently $1,232.
  1. [27]
    The real issue is whether replanting is reasonable at all. This is not a case of trees in a park, or laid out in some particular way, where the location of each tree in a particular position is of some significance. This was essentially just an area of bush, old regrowth[20] where the trees were growing where they had naturally come up. There is no reason to think any of them had been planted originally. There was some debate before me as to the extent to which the trees cut represented most of the mature yellow box trees on the property, but there was plenty of evidence that there are immature yellow box trees growing in the same general vicinity.[21]   Yellow box trees grow naturally on this property, and the ordinary processes of regeneration will in time produce a restoration of the forest,[22] not precisely as it used to be, but nevertheless as natural regrowth forest. There are a large number of yellow box saplings already growing in various places and, insofar as the plaintiff particularly wants to encourage the development of yellow box rather than other trees in this area, that would be better achieved by following ordinary forestry practices to encourage existing saplings[23] rather than starting afresh with three month old seedlings. Existing saplings have the advantage of several years’ start.
  1. [28]
    If this is to be done, it is not reasonable to remove the stumps.[24]  It may well be appropriate to cut some of them off close to the ground, because there was evidence that some of them have been cut at a height which is inappropriately high,[25] but otherwise the forest could simply be left to regenerate itself, or some ordinary forestry practices could be applied to encourage the yellow box saplings, by removing competing trees of other species.
  1. [29]
    However, a quicker way of getting replacement yellow box trees, which will result in the trees being in the same places as the previous trees, is simply to allow the stumps to sucker, or “coppice”. Yellow box stumps do this readily enough, and if the process is managed properly it works well: p. 292. Mr McNichol in his report (Exhibit 9) said that these suckers if left to grow produced another tree which can in turn be harvested in 20 to 40 years time depending on the size wanted.
  1. [30]
    A sucker from an existing stump has one big advantage over a sapling; it has a substantial established root system on which to build.[26]  The yellow box has as a characteristic a substantial taproot,[27] and a sucker retains the benefit of this established growth. The stumps commonly produce multiple suckers, but these can be thinned out, or will thin out naturally;  when they are relatively young they are easily knocked over. The quickest way to replace the existing trees therefore is simply to allow suckers from the stumps to develop. The stumps have already suckered:  p. 47. To manage this process properly, the stumps should be cut fairly close to the ground, and the suckers thinned out to two or three when they are four metres high, and one or two when they are eight metres high.[28]
  1. [31]
    The plaintiff was not happy about this, on the ground that suckers were not as stable as ordinary trees, having a propensity to blow down in strong winds. That may well be the case,[29] but the evidence of Mr Bowden, who had some experience with suckers maturing into trees, suggests that this does not occur inevitably, and that at least a reasonable number of suckers will survive to a degree of maturity where they would become fairly stable. He said and I accept that if the process is managed properly a good, stable tree is produced:  p. 292.[30]  I accept that there is some instability associated with yellow box suckers (compared with, for example, ironbark suckers), and indeed that it would be unwise to camp downwind of one, but there is no evidence of the plaintiffs camping on their own property, and although they sometimes allow friends to do so I am sure there are plenty of places where one could camp without being at risk of falling yellow box suckers. I do not regard the relative weakness of the suckers as objectively a major problem.
  1. [32]
    There is also the consideration that the sucker is not as attractive as a natural tree, and I accept that this is of some significance particularly in the context of a property which was being used principally as a piece of “civilised” bush, but I do not think it is necessarily an imperative or the dominant factor. But if the plaintiffs prefer, they can cut off and poison the stumps and encourage saplings instead.
  1. [33]
    One other consideration favours the retention of the stumps and suckers, and that is the plaintiffs’ desire to have yellow box available as a source of honey. I will deal separately with the consideration of the extent to which loss of these trees interfered with an ability to use the property for beekeeping, but insofar as that is a problem it will be remedied much more quickly by taking advantage of suckers from the existing stumps,[31] or by encouraging the growth of other immature yellow box on the property, than by planting a number of three month old seedlings. Mr Winner was of the opinion that a sucker from a stump would get to the stage of being a useful tree in terms of honey production about ten years earlier than would a seedling:  p. 156. In terms of minimising the loss of honey production therefore it is undesirable to remove these stumps, and it is desirable to allow them to sucker, because that will be the quickest way of obtaining replacement yellow box tress which will be capable of producing significant nectar (assuming that there are not already immature yellow box trees upwards of ten years old growing on the property, in which case the quickest way to replace the trees as honey producers is to encourage the development of those immature yellow box saplings).

Authorities – measure of damage

  1. [34]
    It was submitted on behalf of the plaintiffs that the cost of restoration of the property would be recovered, even if it was not reasonable to restore the property, if the plaintiffs did in fact intend to do so, and reference was made to Perry v Sidney Phillips & Son [1982] 1 WLR 1297. But that was not a case where the plaintiff had undertaken rectification work, reasonable or otherwise;  it was a case where the plaintiff, having bought a house with defects which had not been disclosed in their negligent surveyors’ report, sold the property at a loss, and was held entitled to recover the difference between what he had paid for the property and its market value taking into account the various defects which ought to have been disclosed by the surveyor. Anything said about the cost of unreasonable restoration therefore was dicta.
  1. [35]
    However, Lord Denning MR said at p. 1301, in relation to a contract to do building work, that: “If the contractor does not do the work or does it badly, the employer is entitled, by way of damages, to recover the reasonable cost of doing such work as is reasonable to make good the breach.” His Lordship went on to contrast the case of a negligent surveyor where he said: “The buyer is not entitled to remedy the defects and charge the cost to the surveyor. He is only entitled to damages for the breach of contract or for negligence.” (p. 1302). Reference was made in that case to an earlier decision of the Court of Appeal, Dodd Properties Ltd v Canterbury City Council [1980] 1 WLR 433. In that case the plaintiff’s building was damaged by building contractors working nearby, and ultimately the issue was not whether the measure of damages was the cost of repair, but whether the cost of repair should be assessed at the time the damage was suffered, or within a reasonable time thereafter, or whether, in a situation where the repairs had not in fact been carried out, the plaintiff was entitled to recover the cost as at the date of the trial. It does not seem to have been in issue in that case whether what was proposed by way of repairs was reasonable.
  1. [36]
    In my opinion it would not be consistent with ordinary principles to allow recovery of unreasonable restoration costs. Fleming “The Law of Torts” (9th Edition 1998) says at p. 282:  “Whether the property be damaged or destroyed, the plaintiff is in the first instance entitled to restitution for loss of its value to him. Usually this loss – the differential in value before and after the accident – amounts to the cost of repair or replacement. If not, may the plaintiff choose whichever is the larger?  To this there is no universal answer:  each case depends on how the plaintiff can be restored to his previous position while doing everything reasonable to mitigate the cost to the defendant. What would a prudent owner who had himself to bear the loss do in the circumstances?  If an ordinary car would be cheaper to replace with a similar model than to repair it, the plaintiff must be content with the former. Not so, however, if the article were of unique or legitimately sentimental value, such as a vintage car or heirloom.”
  1. [37]
    The question of the measure of damages in the context of an action for trespass to land was considered by the Court of Appeal in Queensland in Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14. That was a case where some land was sold in a subdivision where roads had not yet been constructed, and a road was to be constructed abutting the land at a level such that some cutting away of the plaintiffs’ land would be required. However, in the event the cut slope on the plaintiffs’ land was much more substantial than they had expected, and indeed much more substantial than provided for on plans approved by the local authority;  on a block 40 metres deep the excavation extended between 13 and 17 metres from the new road frontage. In addition the level of the road was very much lower than the plaintiffs had been led to expect. On appeal there was no dispute that the defendant was liable for trespass to land, and the issue was as to the measure of damages.
  1. [38]
    Williams J (as his Honour then was) cited at p. 15 a passage from one of the judgments in Dodd Properties Ltd v Canterbury City Council (supra) at p. 456, dealing with the situation where there was a building on land, and continued:  “Where there is no building on the land reinstatement will provide the appropriate measure of damages unless than cost is unreasonable or disproportionate when considered in the light of the diminution in value of the land as a result of the damage caused by the trespasser. An observation in the American Restatement was approved of in Minter v Eacott, Evans v Balog and Barbagallo v Catelan;  it is to the following effect:  “If, however, the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass, unless there is a reason personal to the owner for restoring to the original condition, damages are measured only by the difference between the value of the land before and after harm.”  The reference to the “cost of replacing the land in its original condition” must, in my opinion, be read liberally. In many cases it will not be possible to restore the land to the exact pre-existing condition, and frequently there will be a number of possible competing views as to the extent to which the land may be restored and as to the cost involved in performing the work according to the method of restoration ultimately accepted. Where there is such competing evidence there would, in my view, be a question of fact for the trial judge to determine, namely which of the competing alternatives was the most reasonable;  and secondly, there would be a question as to whether the cost of so reinstating the land was reasonable when compared to the diminution in value.” 
  1. [39]
    His Honour then noted that the trial judge had drawn the inference that the respondents wished to reinstate the land to the fullest possible extent, and noted that the evidence led at the trial was only the cost of the full reinstatement to the level prior to excavation, which involved constructing a rubble wall along the frontage of the lot at a height of 4.8 metres, and placing a consolidating fill behind the wall, and the cost of what was described as the barest minimum consolidation of the new level by a landscaping procedure. The trial judge had accepted that the valuation evidence was unable to demonstrate by reference to comparable sales that the work done had resulted in any diminution in value of the property, but rejected as not credible the proposition that a rational purchaser would pay as much for the land after the work had been done as if it were in its original condition:  p. 17. He concluded that a rational purchaser would deduct at least the cost of doing the basic consolidation work.
  1. [40]
    Williams J went on to conclude that, because of an absence of any other evidence of the actual reasonable diminution of value of the land, that was the only conclusion open. His Honour found that the cost of the restoration sought by the plaintiffs, $60,000, was manifestly unreasonable in circumstances where the land had been purchased for $37,000, its present market value in its original condition was said to have been $70,000, and the only proved diminution in value of the land was $17,000. His Honour noted that there was no impediment to building a house on the block and no necessary diminution in the use and enjoyment which the respondents could get from the land, and that although some additional landscaping might be required the matter did not come within the special category referred to in the passage from the American Restatement. The respondents’ case at trial was that they were entitled to restore the old level of their land cost what it might. His Honour rejected that approach. Shepherdson J agreed with that judgment and Ambrose J delivered a judgment to similar effect.
  1. [41]
    In my opinion I should follow the exposition in Hansen;  indeed I am bound by it. In the present case there was no evidence of any difference in the value of the plaintiff’s land before and after the cutting down of these trees. Although the presence of standing yellow box trees would make the land more attractive to beekeepers, or anyone for whom the presence of the trees enhanced the aesthetic value of the property, a more hard-nosed approach would take into account only the loss of the realisable value of the trees as timber. There was some evidence that yellow box was attractive for this purpose:  Exhibit 9, although no figures are placed on the “high value” referred to there by Mr McNichol. I suspect that what he was talking about was that the value of yellow box trees is high compared with the value of other trees as a source of timber. On the other hand, a local timber miller said that yellow box are of no value for milling purposes:  p. 256.[32]  In this case the plaintiffs have not proved that there was any significant diminution in value of the property as a result of what the defendants did, and this is not a case where I could say in the absence of such evidence that there would be some significant loss of value.
  1. [42]
    In these circumstances, any significant restoration cost is likely to run into problems with the principle in Hansen, being disproportionate to the (little or no) diminution in value of the land. One thing is clear:  any reinstatement proposal has to pass the test of reasonableness, bearing in mind its relationship to any diminution in value. In view of the absence of any significant diminution in value, it is necessary to look closely at any reasons personal to the owner relied on to justify restoring the land to original condition.
  1. [43]
    Essentially that comes down to two considerations: the usefulness of the trees as a source of honey, and aesthetic considerations. The former however do not provide any justification for going to the expense of digging out the stumps and planting seedlings in their place. For the reasons that I have given, this is likely to delay rather than facilitate the restoration of this land as a source of yellow box nectar. It then comes down to the aesthetic considerations.
  1. [44]
    This property had been chosen by the plaintiffs as a retirement home, and it was one where they were seeking to develop a parklike atmosphere, retaining the larger trees but clearing most of the undergrowth. The plaintiff had already put in a good deal of physical work towards achieving that objective over a number of years,[33] and that provides some particular reason why the physical features of this land, such as mature yellow box trees, are of some significance personal to him. But there is no suggestion that it was practicable to replace the trees that have been removed with mature yellow box trees;  there is not even evidence that such a course would be possible. The location of the trees is not in itself of any particular significance;  this is not a case where the trees had, by accident or by design, been growing in a particular pattern. It is not a case where there are not other yellow box saplings on the property which will grow into mature trees in time, in the same way as the mature trees which were cut down grew from saplings. That is a process which can be assisted by some management of the property. If suckers from stumps are regarded as unsatisfactory aesthetically (or otherwise unsuitable) the stumps can be cut off at ground level and poisoned, and other yellow box saplings on the land can be encouraged. There was evidence that there are yellow box saplings on the land available for this purpose, and they would obviously have a considerable growth advantage over a three month old seedling.
  1. [45]
    In this context I do not consider that it is reasonable to insist on reinstatement of the land by replacement of the trees by digging out the stumps and planting seedlings in their place. Expenditure to do that would be disproportionate to any diminution in value of the land as a result of the trespass, not be justified by one of the relevant personal considerations, and receive insufficient justification from the other.
  1. [46]
    In case a different view should be taken elsewhere, I find that the cost of the rectification work proposed by the plaintiffs, if reasonably undertaken, would be:
  1. (a)
    digging out, stacking and burning tree stumps:  $12,320.00
  1. (b)
    cleaning up after the work:[34]    1,003.75
  1. (c)
    seedlings mulch and labour, 115[35] @ $32.33:     3,717.95

Total$17,041.70

  1. [47]
    In my opinion all that is reasonably required by way of rectification work is a certain amount of forest management. To some extent the plaintiff was doing this sort of thing anyway in the course of clearing away the undergrowth, so there would not be much in the way of additional cost. However, I think it is reasonable for the plaintiffs to spend some money on this. No attempt was made to prove the amount which was appropriate, understandably since the plaintiffs were seeking to prove a different case, and in those circumstances I should make only a moderate allowance. It could be conveniently combined with another cost which I think is reasonable.
  1. [48]
    The defendant when cutting these logs simply cut the tops off most of the trees and left them where they lay; some appear in the photographs. That is consistent with the method used by most primary producers when felling trees for posts or building purposes (p. 184, Exhibit 9) and is a source of organic matter for the soil (p. 294) but is inconsistent with the use intended by the plaintiffs for this property, and I think the defendants should pay the cost of cleaning up the off-cuts left by them on the property. There was no separate component for this given in the evidence; it would have been included in the figure of $12,320, but would obviously be only a small part of that figure. Overall, for clearing away branches and tops cut off and left behind on the plaintiffs’ property, some work on the stumps and appropriate forestry work to speed the growth of replacement yellow box trees, I will allow the sum of $2,000.
  1. [49]
    The plaintiffs claimed for damage caused by dragging or snigging the logs on their property. Logs were dragged behind a tractor with a snigging chain (p. 310) to the road which ran through the property, and then dragged along the road to a gate leading to the defendants’ property. There was evidence that dragging the logs through the undergrowth caused some disruption to the surface of the ground and vegetation cover (p. 44), and dragging the logs over the road had caused some damage to the road. Mr McNichol described the damage as loosening 10 to 100mm of soil from the road surface which had caused accelerated erosion to the road surface (Exhibit 9), There was other evidence to the effect that the road surface had been broken up and that there had been additional erosion to the road, of significance in the steeper parts, since this work was done.[36]  I accept that the roads were damaged by the snigging, and that it is reasonable to spend the amount referred to by Mr McNichol in his quote, $1,232, to repair the road.
  1. [50]
    On the other hand, the cost of repairing damage done to the forest floor generally by the snigging was much more substantial. The quote for this work was in effect $2,783.85, but no expert witness regarded this work as appropriate. The plaintiff said that in the flatter areas the forest floor had essentially recovered already by natural processes from the damage which had been suffered: p. 44. I do not consider that it would be reasonable to spend money on repairing damage to the forest floor as a result of the snigging. I regard such expense as unreasonable, and will not allow it.
  1. [51]
    Accordingly the total I will allow by way of reasonable rectification costs comes to $3,232. I will allow interest on this at eight percent per annum for one year, since the quotes were updated in March 2002.

Loss of value of honey production

  1. [52]
    I accept that the plaintiff had been maintaining hives on the land for some years, and that he intended to continue to do so in the future. There was some conflict of evidence as to the effect on the honey production of the loss of these particular trees. The plaintiff relied on evidence from Mr Winner, the Beekeeper Services Manager for Capilano Honey, whose expertise in relation to the types of tree species useful for honey production was not in dispute: p. 132. He said that the yellow box tree was generally regarded as the premium honey producing tree on the east coast of Australia, and its honey commanded the highest price:  p. 137. He understood that 123 trees had been felled, and said these would have supported quite a large number of hives;  on the basis of his  assessment of the plaintiff’s operations, those trees could have sustained between 20 and 45 hives:  p. 140. The effect of the loss of the trees was not to reduce the number of hives that could be sustained,[37] but they would lose production because of the absence of the yellow box trees:  p. 143. He put the loss at 40% (p. 144). It was apparent from his evidence at p. 147-8 that he was saying that, if all relevant species had good nectar production in a particular year, each hive would produce around 135 kilos of honey, and of that 54 kilos would be yellow box.[38]  However, yellow box does not produce a good quantity of honey every year. It does not flower every year and does not yield the nectar flow every year, and his estimate was that one could expect only four good production years out of ten:  p. 146. He said the trees would take a minimum of 40 years to achieve full production of nectar (p. 144), or, for mature coppiced trees, a minimum of 30 years:  p. 156.
  1. [53]
    On the basis of this evidence the plaintiffs claimed that over 40 years there would be 16 good years in each of which they would lose 54 kilos of yellow box honey from each of 45 hives. This could have been sold at $4 to $5 per kilogram: p. 149.[39]  However this return was reduced by 62 percent to allow for costs of production, because of Mr Winner’s evidence of the overhead costs of commercial beekeepers:  p. 153. On this basis and discounting at five percent to get a present value the plaintiffs claim $28,934 as the loss over 40 years, or if the shoots from the stumps were allowed to mature over 30 years, $25,026.
  1. [54]
    There are however numerous problems with this approach. The first is that the plaintiff was not going to be keeping bees on this property for the next 40 years, or even the next 30 years. I do not think there was evidence of the age of the plaintiff, but he retired in February 1986 (p. 21) and is now obviously well over 60, and probably over 70. He said that he had planned to have 50 hives, but now (2002) probably could not cope with more than 40:  p. 49. Although the female plaintiff said that she would after the death of the male plaintiff continue to live on the property and continue to keep bees, paying someone to do the work which is now done by the male plaintiff (p. 229), I do not consider that a realistic or reasonable prospect. The cost of paying someone to look after a relatively small number of hives involved would not be justified by the value of honey produced. Mr Winner said that commercial beekeepers need at least 450 hives to operate effectively, and a more typical number would be 750 to 800:  p. 123. Effectively therefore at best what the plaintiffs have lost is the value of the yellow box honey production during the period when the plaintiff might expect to be able to maintain recreational beekeeping himself. There was no evidence that the loss of yellow box honey production adversely affected the market value of the land.
  1. [55]
    The next difficulty in the way of this approach is that the evidence indicates that the plaintiff has never had 45 hives on this property, or anything like it. The evidence of the plaintiff’s beekeeping was not very satisfactory. No contemporaneous records were produced, and the only contemporaneous information is that provided on documents subpoenaed from the Department of Primary Industries, the plaintiff’s application each year for renewal of his beekeeper’s registration. The plaintiff produced a schedule which he had prepared himself, on the basis of records not produced or in some cases on the basis of estimates or recollections: p. 48. It purported to record among other things the number of hives that he had each year since 1987, the amount he had obtained from the production of honey, and the amount obtained from the production of wax. These show a maximum number of hives of 48, but the figures up to 1992 included hives kept on the property at Stanthorpe, before they were living on the adjoining property: p. 90. He had up to eight hives at Stanthorpe: p. 87. In these circumstances, I cannot be satisfied that there were ever more than 40 hives on the land.
  1. [56]
    In 1993 the number of hives shown in the schedule Exhibit 6 was only 24, and that number declined to six in 1995, recovered to ten in 1996 but had declined again to eight in 1998. It increased to 12 in 2000, but declined again to nine in 2001. These figures however are not necessarily an indication of the hives kept on the site. When Mr Winner visited the site he found four hives on site, and was told that five were located at another site: p. 134. He said that was consistent with good beekeeping practice, which I accept, but obviously to the extent that the plaintiff was keeping hives off the site, those hives were not at that time adversely affected by anything done to the trees on this land. The plaintiff said that these numbers had been adversely affected by drought, and no doubt there has been a good deal of drought in recent years,[40] but that was not the situation for the whole period. I am not persuaded that the plaintiff has ever had as many as 45 hives on this property, or that the plaintiff would have had as many as 45 hives in the future had it not been for the loss of these trees. The plaintiff would certainly not have had more than 40,[41] and on the basis of the number held in the previous ten years I doubt if he would have averaged more than 20, even assuming the drought will stop sometime.
  1. [57]
    As well, the figures in Exhibit 6 are not consistent with figures disclosed in the application forms for renewal of registration. In a form signed on 11 April 1990 he gave the number of hives owned that year as 14, and crossed out a figure of 42 which had been apparently pre-printed on the form. The figure of 42 appears in Exhibit 6 for the 1989 hives, but the number for 1990 is given in Exhibit 6 as 36. In the March 1991 form he said he had 18 hives “this year”, compared with 38 for 1991 in Exhibit 6. In the March 1992 form he said there were twelve hives this year, compared with 39 for 1992 in Exhibit 6. In the July 1993 form he said he had 13 hives this year, compared with 24 for 1993 in Exhibit 6. In May 1995 his application form said he had 12 hives, whereas Exhibit  6 said that in 1995 he had six. The 1996 application form does correspond with Exhibit 6, and the 1997 form says he has four hives this year whereas Exhibit 6 says (faintly) seven. The following form was apparently undated and unsigned, but refers to six hives, and the form for May 1999 says there were six this year and six last year;  Exhibit 6 says there were nine in 1999 and eight in 1998.
  1. [58]
    The discrepancies were raised in cross-examination, and the plaintiff’s answers were unsatisfactory. He suggested that the explanation may be that the number of hives fluctuated during the years, so it all depended on when the figures were taken, but that means that the figures in Exhibit 6 do not necessarily reflect the number of hives held throughout the year. Plainly the calculations put forward as the basis of the plaintiffs’ claim assume that there will be 45 hives all year, or at least during the whole of the yellow box season. At one point he claimed that on the registration forms he did not take into account hives which were weak and which he did not expect to survive: p. 84. On the other hand it appears from his evidence at p. 93 that his figure of 39 hives in Exhibit 6 for 1992 included a number of hives which as he put it “failed to take.” A beekeeper can increase the number of hives by dividing existing hives,[42] and this is a necessary part of beekeeping apparently, because Mr Winner said that it is normal to lose ten percent of the hives per year even in ordinary conditions:  p. 161. Obviously in poor condition more hives will be lost. I do not doubt that the plaintiff has had difficulties with his hives, but my difficulty is that this evidence suggests that the figures in Exhibit 6 are unreliable, or at least do not reflect the number of hives which could be regarded as effective in terms of honey production, that is hives which are successfully producing at what is normal capacity for a normal hive given the prevailing conditions.
  1. [59]
    In addition, Exhibit 6 does not include a record of the number of kilograms of honey produced in each year. There is a figure for the value of the honey produced, but there are difficulties even with that figure. For example, on the application form to the department dated 28 November 1997 the plaintiff wrote:  “Due to the drought I have not removed honey from my hives during the past three years. There has only been enough to keep the hives alive (even so I lost most of them).”  This was apparently an explanation for a failure to have honey tested, but is not consistent with Exhibit 6. Although that claims that there was no income from honey in 1997, it claims income of $885 in 1995[43] and $900 in 1996.
  1. [60]
    A further difficulty arises in deriving from Exhibit 6 the level of honey production per hive. According to the plaintiff, the level of production was about the same for the hives on the property and the hives in Stanthorpe (p. 87) and if that is correct then an average figure could be obtained for the years up to 1992 which would be meaningful. Unfortunately, the plaintiff said that he sold the honey from the hives he kept in Stanthorpe for $2 to $2.50 per kilo (p. 88) whereas he sold honey from the property for up to $3 per kilo: p. 49. This is more than the amount paid by Capilano, which even for yellow box honey is $2.41 per kilo, a figure which has increased from $1.85 per kilo since 1997: p. 149. Mr Winner said that beekeepers commonly charge $4 to $5 per kilo for yellow box honey sold retail, although there is no evidence that the plaintiffs ever exploited a capacity to sell their yellow box honey at a premium in this way.
  1. [61]
    Working on a figure of $3 per kilo and the hive numbers given in Exhibit 6, and the figures given in Exhibit 6 for the value of the honey production each year, the equivalent production rates in kilos per hive during the years stated are as follows:

1987 – 37, 1988 – 37, 1989 – 37, 1990 – 37, 1991 – 37, 1992 – 40, 1993 – 40, 1994 – 17.86, 1995 – 49, 1996 – 30, 1998 – 25, 1999 – 10.93, 2000 – 9.42,  and 2001 – 10.93.

  1. [62]
    Even accepting these figures at face value, they clearly demonstrate that the plaintiff has never produced anything like 135 kilos of honey per hive,[44] and in those circumstances it is plainly quite unrealistic to assume that but for the loss of these trees he ever would have done so. But these figures plainly cannot be accepted at face value. The results up to 1993 were obviously derived by calculating one figure on the basis of the other and an assumed rate of honey production per hive;  I do not accept that the plaintiff’s bees were so remarkably consistent in their production during that period. This greatly reduces the value of this evidence. Thereafter the production rates have fluctuated substantially, though a figure of 49 kilos per hive in 1995 seems surprisingly high, bearing in mind that the plaintiff said in that year the explanation for the discrepancy[45] was that he had 12 hives at the beginning of the year but his hives fell to six after April:  p. 95. If he had 12 hives at the beginning of the year of course this means that the honey production per hive at that time was only 25kilos. The matter is further complicated by the fact that during 1995 and 1996 he took hives to an orchardist to pollinate flowers, and he let the orchardist have the honey:  p. 96. He said that he did not get $885 in his pocket in 1995, this was his estimate of the value of the honey that was produced, which he allowed the orchardist to keep because he had been taking care of the bees during that time:  p. 96. Accordingly in 1995 and 1996 the figures in Exhibit 6 do not reflect honey produced from the plaintiffs’ property, or income actually received by the plaintiffs.
  1. [63]
    It is not to the point that from Mr Winner’s evidence it would be possible in principle for someone to be able to maintain 45 hives on his property and for someone who did to have lost as a result of the loss of these trees the equivalent of 54 kilos per hive of yellow box honey in those seasons when the yellow box was producing good nectar flow. Although this property may have had the capacity for that level of exploitation prior to this incident,[46] and the plaintiffs may have lost that capacity, the position is analogous to a person who was not fully exploiting his or her earning capacity. Damages for an injury to that person are awarded not for the loss of earning capacity in the abstract, but because the loss of that capacity is productive of financial loss to the plaintiff, and to the extent that it is productive of such a loss.[47]  In the present case the plaintiffs’ entitlement to damages for consequential loss as a result of the loss of yellow box honey productive capacity is the same, and has not been shown to be productive of financial loss to the extent assumed in the plaintiffs’ calculations, or anything like it.
  1. [64]
    Indeed, the evidence of financial gain from beekeeping activity on the part of the plaintiffs is so unsatisfactory that it is difficult to be confident of any particular level of loss. The plaintiffs’ material does not identify which years were good yellow box years and which were not, or demonstrate how the plaintiffs prior to this incident obtained additional honey during the years when there was a good run of nectar in the yellow box trees on their property, and therefore does not provide any material on which I could quantify the loss to them of yellow box honey production, even assuming it had been completely lost as a result of the loss of these trees. Indeed, if 123 trees were capable of producing in a good year, 2,430 kilos of yellow box honey, the 20 to 30 yellow box trees remaining should in theory be able to produce 400 to 600 kilos of yellow box honey, or 10 to 15 kilos per hive if the plaintiffs had 40 hives. Fifteen kilos would be 40.5 percent of the figures for honey production per hive given for the first five years in Exhibit 6 (if those figures are of any value) whereas on Mr Winner’s figures yellow box production of 54 kilos per hive represented 40 percent of the total honey production expected by him. But these figures are perhaps not comparable.
  1. [65]
    The defendants relied on the evidence of Mr Warhurst, a senior apiary officer with the Department of Primary Industries, who had worked in that field and the department for 21 years: p. 269. He also had some personal experience of beekeeping, operating 205 hives himself, which he helpfully divided into honey producing hives and supporting hives: p. 269. He said he was familiar with beekeeping in the Stanthorpe area: p. 270. He did not think that, with only 10 or 20 hives on the site, the loss of 123 trees would make much difference to the amount of yellow box produced because of the amount of yellow box in the area, and the absence of competition; it would be different if he had 100 or 120 hives: p. 278. He knew of a commercial producer who kept 10 or 15 hives on a site nearby, who said his average crop was about 60 kilos per hive per year: p. 285.
  1. [66]
    Mr Warhurst thought that the plaintiff may have been having trouble because his property is in an area which has little useful pollen for about five or six months each year: p. 274.[48]  Accordingly he did not think that a large number of hives could be maintained on the site over the poor months:  p. 275. He said that the problem the plaintiff would have had arose because of where he lived and because he did not have the facility to shift his hives away to a better site during more difficult months:  p. 277. The plaintiff denied that his hives had run out of pollen (p. 67) but the matter is a little more complicated than that:  the pollen has to have sufficient protein content, and some pollen, such as peach bush, is too low in protein to be much use for bees:  p. 272. The plaintiff has peach bush, among other things, on his property:  p. 66.
  1. [67]
    There was not I thought very much real conflict between the evidence of Mr Winner and the evidence of Mr Warhurst; rather they emphasised different matters. I do think however that Mr Winner’s evidence was coloured somewhat by his experience with the operations of commercial beekeepers, and the level of production that an efficient commercial beekeeper would be able to achieve, particularly with some flexibility as to where the hives were sited. It seems to me that the evidence of Mr Warhurst is more consistent with the evidence of the plaintiff’s actual experience on the site. In general I accept the evidence of both, but where there is any conflict I prefer the evidence of Mr Warhurst. I think that his approach was more cautious and more reasonable, and more realistic.
  1. [68]
    The matter is complicated by a conflict of evidence as to the impact of the loss on the plaintiffs’ total stock of yellow box trees, and the extent to which there were other yellow box trees in the general vicinity which could be harvested by the plaintiff’s bees if his own trees were missing: bees have no respect for boundaries.[49]  The plaintiff said that bees will go up to five kilometres to get honey (p. 30), but Mr Winner suggested that this was an unrealistic figure and that they would prefer not to travel anything like that far:  p. 150. There is unfortunately a wide variety of evidence even as to what trees are present on the plaintiffs’ property. The matter is complicated by the question of whether estimates were being given in terms of mature trees only or all trees, and there is no doubt room for argument anyway about just what is a mature tree.
  1. [69]
    The plaintiff said that only about two percent of the trees on his property were yellow box trees (p. 29), a figure that I assume is based on the total number of trees, not just mature trees. Mr McNichol estimated that the number of yellow box trees on the property represented less than five percent of the total trees, another figure which I would assume related to all trees: p. 192. Mr Winner said he saw yellow box intermingled with other trees, in various stages of growth: p. 139. He said there were not many mature trees, but there appeared to be quite a few young saplings: p. 146. Mr Passmore, a retired forester who worked for the Department of Primary Industries for ten years and has operated an experimental hardwood plantation, and who had seen the plaintiff’s property from the outside, estimated that 15 percent of the trees on the south-west corner of the property were yellow box, although again this seemed to be an estimate of the total number of trees rather than a reference to mature trees: p. 268. Mr Warhurst had seen the plaintiff’s property recently from the outside and said that there was a big range of yellow box trees from young saplings right through to medium size and some large trees as well, though no really huge trees: p. 288. In some sections of the property as many as 20 percent of the trees appeared to be yellow box trees, though there may well be fewer trees in other areas. The defendant on the other hand said that yellow box was a predominant species on the plaintiffs’ land, and that there were between 3,000 and 5,000 mature trees there: p. 320.[50]  Unfortunately he did not give a percentage, so his evidence was not directly comparable with the evidence of the other witnesses, but he seemed to be asserting a much higher incidence of yellow box than other witnesses, including experts whom I would regard as reasonably independent and reliable. In these circumstances I do not regard the defendant’s evidence as reliable on this.
  1. [70]
    The effect of the evidence seems to be that there are quite a lot of young yellow box trees on the plaintiff’s land, but not many mature yellow box trees left now. I accept the plaintiff’s estimate of 20 to 30: p. 37. There was evidence from the plaintiff that there are effectively no other yellow box trees on the surrounding properties or nearby: p. 29, p. 129. He said that most of the adjoining properties have been largely cleared, or had only relatively small regrowth, with no large yellow box: p. 130-1. Apart from evidence from the defendant, this was contradicted by the evidence of Mr Passmore who said there was yellow box on neighbouring properties, and Mr Warhurst who said there was other yellow box in the area: p. 278.
  1. [71]
    On the whole I accept that most though not all of the yellow box trees which were of a size significant for honey production were lost by the plaintiffs, and that this is not of little significance because of the availability of other mature yellow box in surrounding areas which the bees could readily access instead. Bees will not necessarily travel to yellow box if there are other species closer with nectar; there was no evidence that yellow box nectar is regarded as superior by the bees. I accept that the plaintiffs’ property has lost most of its capacity to produce yellow box nectar as a result of the loss of these trees, at least in the short term.
  1. [72]
    I accept therefore that the loss of these trees will result in a reduction in yellow box honey available from hives kept by the plaintiffs on the property.[51]  I find that the plaintiffs have lost most of their productive capacity of yellow box honey. The difficulty is translating that into a loss in dollar terms, in circumstances where there is no precise or reliable information as to what the plaintiffs were making from honey and therefore no way of calculating what they would have been making from honey on this site had this loss not occurred.
  1. [73]
    Given that there has been a lot of drought in recent years, covering effectively the whole period while the plaintiff’s beekeeping activities have been largely confined to this property, it is particularly difficult to extrapolate from the figures in Exhibit 6 some indication of likely levels of production in the future, even accepting Exhibit 6 at face value. For reasons I have given, however, I am very wary about the figures in Exhibit6. The plaintiff apparently had a lot more hives prior to 1993, and was getting a lot more honey out of them, and if that represents the situation prior to the drought then there are prospects that those conditions may return. On the other hand, they may not. The plaintiff did seem to be often speaking about loss of hives during the years, and Mr Warhurst’s explanation does seem to fit in with the evidence of the plaintiff’s actual experience on this site, although the matter is complicated by the fact that there was a drought during that period. Obviously the number of hives involved is significant;  it will be much easier to maintain 20 hives on this property than 40, and the absence of these particular trees will be less significant if the number of hives involved is reduced. One would expect however that the loss of 120 mature yellow box trees would have some detrimental effect on the production of yellow box honey from bees kept on the plaintiff’s land, so I do not have any difficulty in concluding that the plaintiff will suffer some real loss in terms of honey production as a result of the loss of these trees. The difficult part is in quantifying that loss. I do not consider that the approach to this adopted by the plaintiffs is at all realistic.
  1. [74]
    In all the circumstances I consider that I should adopt a moderate approach to the assessment of damages for loss of future honey production. On that basis, I will calculate the loss over the first ten years on the assumption that the plaintiff will maintain an average of 20 fully productive hives and that during four of those ten years yellow box trees will produce nectar, and that each hive would have produced an additional ten kilograms of yellow box honey in each of those years had these additional trees been available. Assuming that the plaintiff continues to sell the honey at $3 per kilogram, this produces a loss of $600 in a year when there is yellow box nectar available, for the decade $2,400.[52]  I am taking into account the incidence or otherwise of drought in deriving the figure of ten kilograms of yellow box honey per hive, and the number of 20 hives. It will be apparent that I am assuming that the first ten years will not be as dry as the last ten years. Since there have already been three years of drought, this may be an optimistic approach, but presumably the drought has to end at some time.
  1. [75]
    For the following ten years there are a number of other factors that should be taken into account. The first is the likely decline in the plaintiff’s capacity to engage in active beekeeping with advancing years. That is most likely to be reflected in a reduced number of hives kept, which in turn will diminish the significance of the loss of these trees. In addition, the sort of forestry management to which I have already referred should after ten years be beginning to pay dividends. Mr Warhurst thought that coppiced yellow box trees would begin to flower again after ten years (p. 288), and immature trees, if given space to develop canopies, should also be starting to flower at about that time. In the second decade therefore there should be some increase in the level of yellow box flowers anyway. These two factors should produce a reduction in the loss of yellow box honey production per hive achieved in those years where yellow box nectar is produced. Accordingly for the second ten year period, I will allow a loss of five kilograms of yellow box honey per hive for each of ten hives during the four years of the decade when yellow box would be producing nectar, an undiscounted loss for the decade of $600.
  1. [76]
    After 20 years from 1998, I think that the diminished capacity of the plaintiff to engage in active beekeeping and the regeneration of yellow box trees and flowers will have reached a point where there is unlikely to be any continuing loss. Indeed I think the prospects of something happening to intercept any continuing loss prior to that are greater. There should therefore be some discounting for the vicissitudes of life, to take into account the possibility that some intervening circumstance may prevent the plaintiff from suffering the loss anyway, such as accident or illness preventing him from actively engaging in beekeeping. In addition these figures are not discounted to present values. Given the uncertainty about when the loss will be suffered, and indeed the uncertainty about this whole exercise, I do not think it is worthwhile undertaking a mathematical discount, and I will reduce the amount allowable for future loss of yellow box honey production to $2,500 to take into account these two factors. This is really future loss, so it will not carry interest.

Lost wax

  1. [77]
    The plaintiff also claimed that there had been a loss of production of beeswax, which is ancillary to the production of honey. He said that he produces about one kilogram of wax for every 50 kilograms of honey (p. 88), and at least this level of production was supported by the evidence of Mr Winner: p. 170. The wax is sold for $3 per kilogram,[53] at least when he last sold some:  p. 88. He said that he had over the last three years accumulated 30 kilograms of wax which he had not yet sold:  Exhibit 6. He gave figures for the value of wax production in Exhibit 6, which was said to be estimated from the level of honey production:  p. 87-88. However the value of wax production I calculate for various years on the basis of the figures for honey production (Exhibit 6), a ratio of one kilogram of wax to 50 kilograms of honey, and a price of $3 per kilogram for wax are much less than the figures quoted in the column headed “Wax” in Exhibit 6;  perhaps this is unsurprising and is a reflection of the general unreliability of this exhibit. Since honey is sold for $3 per kilogram as well, effectively the wax represents an additional two percent of the income produced from honey, and accordingly the value of lost wax production can be assessed by taking two percent of the figure referred to earlier, or $50. I will allow that amount.

Hire of hives

  1. [78]
    The plaintiff also gave evidence that there was a market for hiring hives during the flowering season, and said that he had had requests for the supply of hives which exceeded the number of hives he had available: p. 49. It emerged however during cross-examination that he only did this for friends, and indeed had in recent years only provided hives for one particular person: p. 98. He did not actually get any money from this, and lost the honey that was produced, which he gave to the orchardist: p. 96-7. I accept that there is capacity for beekeepers to earn money by renting hives to orchardists during the flowering season; Mr Warhurst gave evidence that he had done this himself, that he received $35 per hive for doing so (p. 278) but said that it was hard work to set this up properly and there were problems associated with it, producing significant bee losses: p. 270, 280.
  1. [79]
    In my opinion it is unnecessary to deal in great detail with this head of claim. I cannot see how the plaintiff’s capacity to make hives available to orchardists has been adversely affected by the loss of the yellow box trees. There is no expert evidence to support the view that the number of hives which could be kept on this property has been reduced by the loss of these trees. Mr Winner said the same number of hives could be kept, though there would be a loss of yellow box honey, and Mr Warhurst said that the problem with this property was a lack of pollen, not a lack of honey. Obviously when bees are provided to orchardists they are not relying on the yellow box trees for the honey (or the plaintiffs’ trees for pollen). I cannot see any logical reason why any capacity of the plaintiff to engage in the hire of hives to orchardists has been reduced as a result of the loss of these trees. In any case, there was no evidence that the plaintiff ever received any money from this practice in the past, and no reason to think that had this incident not occurred the plaintiff would ever have received any money from the practice in the future. In those circumstances no loss on this basis has been proved.

Loss of amenity

  1. [80]
    I accept that the plaintiffs were particularly appreciative of the yellow box trees on their property, and that they are saddened and distressed by their loss: p. 48. The loss of so many attractive mature trees reduces the capacity of the plaintiffs to develop and enjoy the land in the way that they had intended, essentially by clearing away the undergrowth so that there would be large trees standing on grassland which could be maintained with a slasher. The plaintiffs’ loss here is the opportunity to have in this respect part of their property the way they wanted it. In my opinion is this a compensable loss, at least in the case of a deliberate tort such as trespass. Trespass involves an imposition on the right of property, and to the extent that the plaintiffs right to have their property the way they want it has been wrongfully interfered with, in a way which will last, by the acts of the defendants, in my opinion that is something which is compensable apart from actual financial loss associated with the imposition, or aggravated or exemplary damages.
  1. [81]
    This has been described as damages for loss of amenity by courts in Canada, in the context of damages for the deliberate destruction of trees.[54]  That an action for damages for trespass to land could include some component in vindication of the plaintiff’s right of property was recognised by the High Court in Plenty v Dillon (1991) 171 CLR 635 at 645, although the matter was only mentioned in passing. Nevertheless in Carr v Sourlos (1994) 6 BPR 13,626 Cooper DCJ allowed damages on this basis where the defendant had trespassed upon the plaintiff’s land in connection with the removal of four trees growing along their common boundary. His Honour referred to this as a violation of the plaintiff’s property and awarded damages on this basis of $3,000. This was awarded as aggravated damages, but in my opinion damages of this nature are really ordinary compensatory damages rather than aggravated damages. The position is analogous to damages for personal violation in the case of trespass to the person, which, for the reasons I set out in Webster v Yasso [2002] QDC 205, I consider to be compensatory damages, and I consider the same applies to damages for trespass to land. If I am wrong about this, I would make the same award by way of aggravated damages.
  1. [82]
    In Gazzard v Hutchesson (1995) Aust Torts Reports #81-337 Bollen J approved an award of damages in an action for trespass to land arising out of cutting back of five trees which had been growing over a common boundary, to an excessive extent, on the basis that:  “The trees were damaged for a time. The plaintiff’s enjoyment of them was reduced for a time.”  They were therefore entitled to some damages in vindication of their property rights, citing Plenty v Dillon (supra). It does not appear that this was treated as aggravated damages by his Honour.
  1. [83]
    There is unfortunately very little guidance in the authorities on the assessment of such damages. In Carr an amount of $3,000 was assessed under this heading where four large trees were removed from a common boundary between two suburban blocks in a suburb that was said by his Honour to have prided itself “on the sylvan ambiance created by a large number of well established trees.”  The trees were very attractive cypress pine trees which had the additional advantage of concealing what was otherwise an unattractive asbestos cement fence. On the other hand, in Gazzard an award of $500 was made for excessive pruning of five poplar trees in what was probably a similar setting;  the trees were large and mature but inside the plaintiff’s boundary and running along it. Of course in that case the trees remained and ultimately grew back. This was described as a moderate award. In Prince Rupert v Pederson (supra) 89 mature cedar and hemlock trees in an area of park said to contribute to the character of the neighbourhood, to shelter wildlife, to provide a play area for children, to block wind and noise and generally to enhance amenities were removed;  damages under this head of $10,000 was allowed. My impression from the report is that in that case the defendant had cut down virtually all the large trees in an area of land about 100 feet by 200 feet, in order to open up a view for nearby land owned by him.
  1. [84]
    In the present case a large number of trees were involved, and they were of a species which the plaintiffs found particularly attractive, and the loss will be a lasting one, but the great majority of large trees remain on the land, and the general character of most of the land would have been unaffected by this incident. It seems to me that the significance of the loss of these trees in the context of the whole of the land owned by the plaintiffs is not as great as the significance of the damage in Carr or Pederson, and it is not a matter of awarding so much per tree. It is I think also of some relevance that the area of land concerned is away from both the original house of the plaintiffs and the house site on lot 85. In all the circumstances I will assess damages on this basis at $2,500. I will allow interest at two percent for 4.8 years.

Loss of value of timber

  1. [85]
    The defendants not only cut down the trees but in most cases removed that part of them which was of some commercial value, the logs. Although there was some conflict in the evidence as to the value of yellow box timber,[55] it was common ground that it made good fence posts[56] and undoubtedly the logs had some commercial value as fence posts. Removal of the logs involved conversion of them, and the defendants are therefore liable to pay the value of the timber as logs. Evidence as to the market value was given for the plaintiffs by a fencing contractor, Mr Belford. His evidence was that trees of that size could be used to produce strainer posts, ordinarily supplied in eight foot lengths at a cost of $1.50 per foot plus cartage:  p. 205-6. In addition stays, usually of a minimum length of ten feet, or ordinary fence posts of six feet in length could be obtained;  both of these are less valuable than strainer posts:  p. 206-7.
  1. [86]
    It was submitted that most of the logs were long enough to obtain three eight foot posts from them, while two could be obtained from the balance. There will be some amounts left over, and some of these could perhaps be used as fence posts which are less valuable and shorter, but I did not understand how one could get an average of 2.5 posts per tree together with two or three split posts per tree, as sought on behalf of the plaintiffs. The evidence on p. 207 was unclear as to whether two or three split posts could be obtained from the off-cuts of the logs, or from the whole logs.
  1. [87]
    Information as to the length of the logs which had been removed was obtained from Mr Perkins, put forward as an expert in land management: p. 234, Exhibit 11. He had measured from the base of the stump, or where he estimated the end of the tree would have fallen, to the point where the top had been cut off: p. 235. He thought this was a reasonably accurate assessment; there were no trunks to measure: p. 235. He performed this exercise for a sample of ten trees, or the remains of ten trees: Exhibit 12, p. 236. On the basis of this information the average useful trunk was said to be 8.78 metres. The average diameter at the cut[57] of the sample of ten was 32.85 cms. The plaintiff had calculated a mean diameter of the trees that had been cut at 41.2 cms, also taken at the point of cut:  p. 39, Exhibit 4. The diameters as shown in that exhibit are not consistent with the diameters shown in Table 1B – “Data of all trees” in Exhibit 12 prepared by Mr Perkins, said to have been from information provided by the plaintiff:  p. 237.[58]  The information in Table 1B is such that I cannot calculate an average diameter from those figures, but disregarding the first and last entry and assuming that the remainder of the diameters fall in the middle of each range identified, the average diameter would be 29 cms. This suggests that the ten trees in the sample in Table 1A were on average slightly larger than all the trees taken together. It probably follows that the average useful trunk length figure was also a little longer than it ought to be, and I will reduce that to 8.5 metres. The average tree therefore would produce three strainer posts, but what was left would be too short to be of any real use.
  1. [88]
    The evidence is not entirely satisfactory, but I think it will be fair overall if I assess the value of the timber on the assumption that an average of three strainer posts were obtained from each of the trees felled and removed, less wastage of 10 percent.[59]  On the basis of 119 logs converted, this produces a timber value of $3,855.60.[60]
  1. [89]
    In my opinion however this does not reflect an additional head of damages. Rather it reflects an alternative way of valuing the damage done to the plaintiffs by the defendants’ act, although not a way which, in the circumstances of the present case, produces an adequate measure of the plaintiffs’ loss. If the plaintiffs’ only interest in this timber had been as a source of logs for sale, the measure of the plaintiffs’ loss would have been the loss they had suffered by being deprived of the opportunity to sell the logs from the trees themselves. On the authorities, that was appropriately assessed without regard to the cost of actually extracting the logs.[61]
  1. [90]
    This therefore represents the minimum value of the damage suffered by the plaintiffs as a result of the defendants’ trespass, but it is not in my opinion an additional head of damage over and above the damages awarded for the loss of the benefit of the trees as living trees. These represent true alternative measures of damages. Obviously if the trees had not been felled by the defendants the plaintiffs could not have both enjoyed the continuing benefit of the trees as living trees, that is the aesthetic benefit and their value as a source of nectar for yellow box honey, and realised their economic value as a source of logs for posts. The two uses are mutually inconsistent. In the light of my findings as to the value of the trees as continuing living trees on the land, they were more valuable to the plaintiffs in that form than as a source of fence posts, so that is the appropriate way to measure their value and assess compensatory damages.
  1. [91]
    The matter may be tested by considering what would have happened if the defendant had not removed the logs from the plaintiffs’ land prior to the point when the plaintiffs intervened, so that at the end of the exercise the plaintiffs had lost their trees and they had a pile of 123 logs available for realisation as fence posts. It would have been open to the plaintiffs to mitigate their loss by selling the logs as fence posts, presumably at the market values referred to by Mr Belford. If they chose not to do so, the defendants would have been entitled to have the damages reduced to take into account the failure on the part of the plaintiffs to mitigate their loss.[62]  In a sense by removing and converting the logs the defendants deprived the plaintiffs of the opportunity to mitigate their damages in that way, and therefore no such deduction should be made from the damages otherwise assessed.[63]  But it does not follow that the plaintiffs are entitled to recover both the damages otherwise assessed and the value of the timber. It follows that I will not allow this head of damages, but in case the view may be taken elsewhere that it is an amount properly allowed, I assess it at $3,855.60.

Exemplary damages

  1. [92]
    The plaintiffs claim exemplary damages, alleging that the defendants’ conduct revealed a contumelious disregard of the plaintiffs’ rights. It is well established that in such circumstances an award for exemplary damages is made to punish the defendant for his conduct and to deter him and others from committing like conduct again: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471 per Brennan J. Such an award is particularly important in circumstances, which to some extent applied in the XL case, where the compensatory damages are relatively small but there was reason to believe that the defendant sought to achieve a valuable commercial advantage from his wrongful conduct. They may even be appropriate, indeed perhaps particularly appropriate, in cases where there has been no actual loss suffered by the plaintiff, so no compensatory damages are awarded:  Cousins v Wilson [1994] 1 NZLR 463.
  1. [93]
    There are however some limitations on the awarding of exemplary damages. They should not be awarded where there has already been a criminal sanction imposed on the defendant: Gray v Motor Accident Commission (1998) 196 CLR 1. For similar reasons, Gibbs CJ (with whom Mason and Wilson JJ agreed) in XL Petroleum said that there was a risk that exemplary damages might amount to a punishment greater than would be likely to be imposed if the conduct were criminal, a comment which I take as disapproval of such an award. In that case some petrol tanks owned by the plaintiff were “spiked” by the defendant so as to render them, temporarily, unusable. One of the submissions of the defendant was that there had been a belief in the mind of the relevant person at the time that the tanks in fact belonged to the defendant and that he was entitled to authorise their destruction. Gibbs CJ said that in reassessing exemplary damages the New South Wales Court of Appeal must have acted on the assumption that the jury had rejected this explanation and concluded that the relevant individual had no such genuine belief, and that the proposition that the tanks were spiked as a routine operation in the interests of safety was no more than a spurious excuse. It would appear to me that if a defendant honestly believed that he was entitled to do what he did at the time it was done, it could not be said that he was thereby acting in contumelious disregard of the plaintiff’s rights, so there would be no foundation for an award of exemplary damages.
  1. [94]
    That was the issue which was contested before me: the defendant was called and swore that at the time he cut the trees down he believed he was entitled to do so in the light of the lease and the letter of permission provided by the plaintiff in 1983, the letter to which I have referred to earlier, which is part of Exhibit 3. He said that some time earlier there had been an agreement between the parties that he would in lieu of the rent rebuild the boundary fence along the common boundary between his property and lot 85: p. 305. That had never been done, and with the end of their occupation of the land looming he was proposing to do this work, and for that purpose cut the timber on the plaintiffs’ land in a way which he said he believed was consistent with the permission given in the plaintiffs’ letter in 1983: p. 310. He said that he choose yellow box because he regarded this as suitable timber for fence posts, because it was the predominant species on the land, and because he was avoiding cutting down the larger iron bark trees in deference to the plaintiffs’ preference expressed in 1983 that he avoid large trees: p. 312. He said that he took into account the guidelines set out in that letter when deciding whether to fell a particular tree, in addition to the consideration of whether it would provide a suitable post for the fence: p. 310.
  1. [95]
    The plaintiffs submitted that there were a large number of reasons why this explanation should not be accepted as genuine. One was the long delay between the agreement to reconstruct the fence in 1993 and the time that the work was actually done. Another was the considerable delay between the time when the trees were cut down and the time when the fence was actually reconstructed, although the defendant gave what was on the fact of it a plausible explanation for this delay: p. 311. There was the style of fence constructed, a particularly high fence which was inconsistent with the style of fencing at either end where there were fences between the defendants’ property and property owned by other persons. Those fences were cattle proof, but not marsupial proof fences. On the other hand the defendant said that there were other stretches of their boundary where marsupial proof fences had been put in (p. 309), and it is plausible that the construction of a marsupial proof fence around the whole property is something that would be done in stages.
  1. [96]
    There was also evidence that the fence was constructed in a way which was unnatural and inappropriate, and involved using far more logs than were necessary. Mr Belford, a fencing contractor, described what in his experience was an appropriate method for the construction of a marsupial proof fence, which he said was never higher than 1.8 metres (p. 203-4), and said that using his method of construction for the length of the common boundary that he had seen he would have required 12 good trees, to produce 81 split posts, four strainer posts and two stays: p. 204. The posts that he had seen used in the fence constructed by the defendants were large enough to have been split into two: p. 204. The defendant claimed to have obtained only one fence post from most logs (p. 338, 343), and the plaintiffs argued that such a use of timber was so wasteful that it was an exercise in using up as much as possible of the timber cut so as to provide an excuse for having cut it, and that he had not cut just the amount of timber actually required to reconstruct the fence.
  1. [97]
    One of the restrictions contained in the letter of 27 June 1983 was that the maximum size taken be six inches to possibly eight inches in diameter. The plaintiffs’ measurements put all but one of the trees well over this diameter (Exhibit 4), and the data collated by Mr Perkins as Exhibit 12 puts 121 trees over 20 cms in diameter, both measured at the point of cut. Unfortunately however there was no evidence from the plaintiff as to the diameter of the logs at the top end. The defendant called evidence from Mr Passmore, a retired forester, that logs are commonly measured in the centre of the log, and that they are measured by reference to the wood without bark or sapwood:  p. 259-60. An allowance of 12½ percent for the sapwood is commonly made. But even allowing for 12½ percent for bark or sapwood, an eight inch diameter log has a over bark measurement of 230 mm approximately, and on the basis of Exhibit 4, all but one of the trees felled had a greater diameter than that at the lower end. The defendant said that the trees he cut had a maximum diameter of 8 inches useable timber:  p. 333. This is difficult to reconcile with the plaintiffs’ measurements, but consistent with the observation of Mr Belford that the posts in the fence were 5 to 8 inch diameter (p. 204) and averaged 6½ ins in diameter, including sapwood, at the top:  p. 208. This suggests that the defendant’s fencing contractor, who was not called, cut the posts from the tops of the logs, and discarded the thicker parts.
  1. [98]
    Other evidence as to the size of the logs came from Mr Howard who operates a sawmill at Stanthorpe, and who inspected a number of logs on the defendants’ property in 1989: p. 256. He said that the logs were useless for milling purposes, and in his opinion they would not be of major use either for hail netting or fencing because they were yellow box: p. 256. He said that sapwood on yellow box is anything from 25 to 40 mm on the outside, and this is useless and has to be taken off for most milling uses: p. 256. He said the average log cut these days is about 450 mm in diameter. He said that he would not mill yellow box logs even above that size, although he did not explain why. However, saying the logs were smaller than 450 mm in diameter does not contradict Exhibit 12 to a significant extent. The great majority of the trees referred to in Exhibit 4 have a diameter even at ground level of less than 450mm. Mr Howard said that he did not deal in fence posts (p. 257) and therefore could not really comment on the value of this timber for that purpose. He did not measure the length or diameter of the logs;  his recollection was that they were around 8 to 8½ metres long, but they could have been longer;  they were not all the same length:  p. 258. That is consistent with the assessment made by Mr Perkins. I do not think that this evidence really contradicts either the plaintiff’s evidence as to the size of the timber, or the evidence of Mr Belford as to the value of the logs as potential fence posts.
  1. [99]
    No doubt the logs became smaller towards the top, and measuring the diameter in the middle of the cut log would produce a different result from measuring the diameter at the point of cut, or at ground level. Nevertheless, on the basis of the photographs that I have seen the taper is not dramatic,[64] and given the length of the logs I have difficulty in reconciling the size of the logs taken with any reasonable interpretation of the requirement in the letter of 27 June 1983 that they have a maximum size of six inches or to possibly eight inches in diameter. If that is a criterion to decide whether a tree may be logged, it has to be applied prior to the time when the tree is cut down. It is therefore not sensible to apply it by reference to a measurement only derived once the log has been cut from the tree, particularly since the diameter of the mid point will depend upon the location of the mid point, which may well depend on where the defendant chose to make the cut to remove the top of the tree from that part of the log that he was going to keep and use.
  1. [100]
    It seems to me that the only sensible interpretation of the diameter in the letter from the plaintiff would be a diameter at about eye or shoulder level, and there was in my opinion no reason for the defendant to think that the plaintiff was speaking about anything other than an over bark measurement. However, the fact that I think that is clearly the reasonable interpretation of the letter does not necessarily mean that the defendant did not honestly hold a different belief as to its meaning. I note that the plaintiff’s evidence of the conversations in 1993 was that he would allow trees up to six to eight inches at the top to be cut:  p. 33. That is a meaningless restriction, as I expect that would apply to any tree if the top were cut off high enough.
  1. [101]
    I do not think that the failure of the defendant to advise the plaintiffs that he was going to cut the timber before doing so (p. 328) demonstrates that he was conscientiously avoiding doing so in order to conceal his intentions. It seems to me to be on its face conduct consistent with an honest belief that he was entitled to do what he was doing.[65]  Cutting timber with a chainsaw and dragging logs out with a tractor is scarcely an activity which can be conducted secretively. Mr Leahy had heard the tractor working, apparently quite noisily, the whole of the day before he investigated, and the defendant claimed to have been undertaking the work over a period of some three weeks. Even if this evidence is not reliable, and in assessing the defendant’s credibility I should not assume it is reliable, I would think it would take some time to cut, trim and drag out this number of logs. There is no reason to think that the defendants had any reason to believe that the plaintiffs would not be going to that part of their property during this period;  there was no evidence that the plaintiffs were away prior to this incident, or that the defendants might have thought they were away at the time.
  1. [102]
    It was submitted that the defendant knew the specific value of these trees to the plaintiffs for honey production, but the defendant did not admit this. He admitted he knew the plaintiffs kept beehives on the land, but claimed that he did not at the time know there was any particular significance attributed to yellow box honey:[66]  p. 316. Although he kept hives, he said that this was principally for the purpose of pollinating apple trees and he had only obtained honey from the hives once:  p. 313. If that was true, and he did not appreciate that the yellow box trees had any particularly significance in terms of honey production, his selection of that species to cut is not attributable to a particular desire to interfere with the plaintiff’s honey production. It seems to me from the photographs, Exhibit 5, that most of the trees around the ones cut down would not have been straight or tall enough to be useful as a source of fence posts. Yellow box is typically a tall, straight tree:  p. 39, 249.
  1. [103]
    There are some other matters. The defendant’s estimate of 3,000 to 5,000 mature trees, that is trees with a diameter of 12 inches or more, on the site (p. 320) does seem to be completely inconsistent with the other evidence as to the incidence of yellow box trees on this site, and my own assessment from the aerial photograph, Exhibit 1, that there would not be many more than 10,000 mature trees on the whole of lot 85.
  1. [104]
    It was argued that the desire expressed in the 1983 letter to develop a moderately wooded parklike environment throughout the property was not respected, because of the number of trees taken and because of the size of the trees. As to the size, the defendant said that he left the ironbark trees because they were larger, and that he was giving effect to his understanding of the plaintiffs desire in that way. It is however more difficult to account for the number of trees taken. I think that the most obvious explanation for this is that the defendants were getting as many logs for fence posts as they conveniently could, bearing in mind that no doubt in time they wanted to erect similar marsupial proof fences along other boundaries, and they were taking advantage of the plaintiffs’ land for that purpose. After the plaintiff made such a fuss about the timber however, they went to some trouble to use up what had been cut in the length of the common boundary, in an attempt to justify taking as many trees as they did.
  1. [105]
    The defendant said that at the time he cut the trees he was working on the basis of one tree per post, one post every four metres for a length of approximately 400 metres, with some additional posts in an area where a creek might flood, producing a total of 110 to 120 posts, with some leeway: p. 347. Yet the fact that he left some of the logs on the plaintiffs’ property, and ended up with a surplus, indicates that he cut more trees than he needed. He said that he allowed a 10 percent wastage for trees that proved not to be sound (p. 348) but even allowing for that there seem to have been more trees cut than were needed, far more if in fact three posts could be obtained from most of these logs.
  1. [106]
    The defendant said that most of the trunks he removed would have yielded a single long fence post; some would not have yielded such a post because they were too small: p. 338, p. 343. Yet there is evidence from both Mr Perkins and from Mr Howard that the logs were typically 8 to 8½ metres long. That is a very long fence post. Mr Belford the fencing contractor who examined the fence said that it may be a little over 1.8 metres high but it was about that height (p. 204) and he gave a length for posts of such fence of 2.4 metres: p. 207. I cannot accept that the defendant would have obtained only one such post from most of the logs cut. Mr Belford said that the posts had not had the sapwood removed from them before they were used to build the fence:  p. 208. So the bark or sapwood, which the defendant had used to explain why he had taken trees which were wider than the diameter specified in the letter, had not in fact been removed. Mr Belford agreed that it ought to be removed, and should be disregarded when looking at the thickness of the usable timber (p. 208), but even taking these matters into account he thought that the posts used in the fence were much thicker than they needed to be, and the posts which were used could have been split:  p. 204. It follows that logs of less diameter, that is trees of a smaller diameter, could have been used to obtain fence posts. Mr Perkins said the minimum useful diameter for a fence post was 4 to 5 ins (p. 244), and the posts in the fence are bigger than this, 6 to 8 ins (over bark):  p. 208.
  1. [107]
    Plainly therefore this was not a situation where the defendant actually needed to cut a relatively large log because, by the time he cut off the sapwood and the bark, he was left with only one usable fence post. It is plausible that a person building his own fence might put in thicker posts than would be used by a contractor, but I cannot accept that only one 2.4 metre fence post could have been obtained from the majority of a set of logs having an average length of over 8 metres. No one could be that inefficient. I cannot reconcile the evidence of the plaintiff and Mr Perkins as to the diameters of the trees cut and the evidence of Mr Belford of the diameters of the fence posts, other than on the basis that the thicker part of the logs was not used in the fence. It necessarily follows that the trees cut were bigger, indeed much bigger, than was necessary to obtain one fence post from each.
  1. [108]
    Furthermore, the explanation for using up so many of the logs would not be the defendant’s inexperience in constructing fences, because ultimately the fence was constructed by a contractor: p. 347. He was the one who cut up the logs. The defendant said that there were 25 to 30 posts left after the contractor had finished, some of which had longitudinal splitting so were not usable: p. 347. That seems a surprisingly small number.

Credibility

  1. [109]
    I should make findings as to the credibility of the principal witnesses at least, the plaintiff and the defendant. There are a number of difficulties I have with the plaintiff’s evidence, such as the unsatisfactory evidence about the level of honey production, which I have dealt with elsewhere. The photographs at the front of the album Exhibit 5, under the marker “Expectations”, show areas of the land where the undergrowth and saplings have been largely removed, leaving large trees and lawn. At p. 41 the plaintiff suggested that this is what the area of land where the defendant had cut the trees looked like, at p. 29 the plaintiff said that most of his clearing work had been done in the south-west corner where the yellow box trees were growing, and at p. 106 that most of the trees had already been cleared around. Yet it is clear from the photographs showing the stumps and remains of the trees felled by the defendant that the area where that occurred had largely not been cleared in this way.[67]  At p. 43 the plaintiff claimed that following erosion of a road on the hill the sand and debris which washed off “covered several hundred square metres of pasture”:  p. 43. One photograph of erosion outwash appears in Exhibit5, but it obviously covers only a few square metres, rather than hundreds of square metres. The other photographs under this heading in Exhibit 5 just show the road. At p. 49 he said, referring to his hives, “I have hired them at $25 a hive for a week.”  However, at p. 97 he conceded that he did not actually get paid that or any amount of money per week when allowing the orchardist to use his hives. In the light of these matters, the other matters mentioned elsewhere in these reasons, and my general impression of the plaintiff in the witness box, my assessment is that he was not necessarily reliable in his evidence, and he was to some extent prone to exaggerate.
  1. [110]
    With regard to the defendant, my assessment is very much the same. His evidence about the number of mature yellow box trees growing on the plaintiffs’ property is not credible, nor is his evidence that when cutting these trees he was taking only enough to rebuild the common boundary fence. His statement at p. 224 about the reduction in thickness, ie diameter, of the trees cut between ground level and the point at which he measured the diameter is obviously exaggerated. I refer elsewhere to some other matters which suggest that his evidence was not reliable. Although there were some parts of his evidence which did strike me as being frank, my impression is that a good deal of it was self serving and exaggerated, and not reliable.
  1. [111]
    Accordingly I have approached the evidence of both these witnesses with a degree of caution, and generally accepted it only when it was consistent with other evidence, or struck me as inherently plausible. Where I have stated something in these reasons without the qualification that I am just quoting what was alleged by the witness, and where conflicting versions are not quoted, I have accepted the evidence cited in support of that proposition.

Findings on exemplary damages

  1. [112]
    The plaintiffs’ case on exemplary damages was really directed to establishing that cutting these trees was an exercise in gratuitous nastiness towards the plaintiffs, perhaps in revenge for terminating the defendant’s rights with respect to lot 85. I am not persuaded that that was the situation here. There is no clear evidence that this action was malicious, and it is difficult to reconcile with the subsequent telephone conversation, when an offer was made to pay a (very modest) sum for the timber taken. On the other hand, that is consistent with the proposition that the defendants were deliberately taking logs for use as fence posts from the plaintiffs’ land because they wanted such logs, and because they were available on the plaintiffs’ land, with or without any genuine beliefs in an entitlement to do so on the basis put forward.
  1. [113]
    I am however persuaded that at the time the defendants did not honestly believe they were entitled to cut these trees. I cannot accept that anyone could genuinely believe that an entitlement to cut timber to use in reconstructing the fence along the common boundary could possibly justify cutting 123 trees of the size cut here. I think this was seen by the defendants as both an opportunity to get some logs for the proposed new common boundary fence and also an opportunity to get some additional timber, perhaps for use in other boundary fences. The quantity of timber cut was so manifestly in excess of the amount actually reasonably required to reconstruct the common boundary fence, even in the excessively generous way in which it has been reconstructed now, that it cannot have been genuinely taken for that limited purpose, even if there was a genuine belief at the time that there was an entitlement to take the timber for that purpose.
  1. [114]
    I am not persuaded that the defendants did not have a genuine belief in some entitlement to take timber, but I am persuaded that they were taking, and knew they were taking, more timber than they were entitled to take. But I am not persuaded that they were doing this out of any desire to be gratuitously disagreeable to the plaintiffs;[68]   a much more plausible explanation is simply that they were taking it because they wanted the timber for their own use. In terms of exemplary damages however, what matters is whether they were deliberately taking timber that they knew they were not entitled to take. I am satisfied that to some extent that was the case with this timber, indeed it was the case with about three-quarters of the timber cut.
  1. [115]
    When assessing an appropriate award of exemplary damages it is relevant to take into account the amount already awarded by way of compensatory damages: Backwell v AAA [1997] 1 VR 182 at 210;[69]Sanders v Snell (1997) 73 FCR 569 at 601. I have already assessed compensatory damages at $8,282. If I were sentencing the defendants for an offence of wilful damage under s 469 of the Criminal Code in respect of cutting down these trees, on the basis I have just outlined, I would not impose by way of penalty a fine in excess of $8,000.
  1. [116]
    I proceed on the basis that the correct approach, when deciding whether an award of exemplary damages is appropriate, is to consider whether there are circumstances which justify some punishment of the defendant, and then consider whether the award of damages apart from exemplary damages would, if looked at as a punishment, be appropriate as a punishment in the light of the defendant’s conduct and the defendant’s circumstances. If not, then I proceed to award some additional sum by way of exemplary damages so the total figure is appropriate in that way. I am not persuaded that the award of damages already assessed will not be a sufficient punishment without some additional award of exemplary damages. For that reason, I am not persuaded that it is appropriate to award any additional sum as exemplary damages in this case.

Summary

  1. [117]
    I therefore assess damages as follows:
  1. (a)
    Restoration costs$3,232
  1. (b)
    Interest$   259
  1. (c)
    Loss of income from honey and wax$2,550
  1. (d)
    Loss of amenity$2,500
  1. (e)
    Interest$   240

Total$8,781

  1. [118]
    There will therefore be judgment that the defendants pay the plaintiffs $8,781 which includes $499 by way of interest. I will circulate these reasons and invite submissions in relation to the question of costs, but subject to those submissions I will order the defendants to pay the plaintiffs’ costs of the action to be assessed, but not to include costs directed to the claim for the cost of digging up stumps and replanting and maintaining seedlings.

Footnotes

[1]A copy of the lease is part of Exhibit 3, along with the letters referred to below, and other documents.

[2]I shall generally refer to the male plaintiff as “the plaintiff” and the male defendant as “the defendant”.

[3]There were a number of old, dead yellow box trees standing in the south-west corner of the property, p. 28. The plaintiff said he had used some for fence posts. Mr Belford said that the dead timber could have been used for fence posts:  p. 204, p. 209. There was no expert evidence to the contrary.

[4]He did not take any dead timber in June 1998:  p. 335.

[5]Note also the complaints of the defendant put to the plaintiff at pp. 71-74.

[6]At all relevant times the plaintiff was registered under the Apiaries Act 1982 as a beekeeper:  Exhibit 3.

[7]Plaintiff:  p. 23;  Winner:  p. 137;  Warhurst:  p. 275. The plaintiff could easily sell all he could produce:  p. 25.

[8]The defendant said over the previous three weeks:  p. 307.

[9]The plaintiff said four were left:  p. 38. The defendant thought five to seven were left:  p. 343-4. The plaintiff obviously examined the area closely after the incident, and I prefer his evidence on this.

[10]Some were removed with branches:  p. 100, and see Exhibit 5. I prefer this evidence to the defendant’s at p. 336.

[11]The defendant claimed that by this time he had ceased felling, and was just recovering logs and cleaning up:  p. 335. There is no way of knowing if this is true.

[12]The plaintiff said it was just for agistment:  p. 51. The defendant said he regarded the original lease as continuing (p. 304) but he did not consider that he had a right of exclusive possession:  p. 325. He also did not regard it as covering the northern part of lot 85, which was fenced off:  p. 323-4.

[13]See Exhibit 11.

[14]Caldwell suggested one $2 bale of hay for up to 15 trees:  p. 223. Although mulch has some disadvantages (Passmore p. 260) I accept the evidence of Perkins that it is useful as a means of preserving the seedling:  p. 246. I accept Perkins’ figure for mulch.

[15]Although follow-up care is not applied in timber plantations and is impractical for enrichment planting (p. 294) I accept that it would be necessary to preserve the seedlings and assist them to grow, until they become established.

[16]Perkins also allowed $1.70 for preparing the ground (p. 238) but that would not be necessary if it had just had a stump dug out of it.

[17]In theory it would be better to grind out the stumps, but there is apparently no stump grinder available locally:  p. 197-9.

[18]McNichol gave more details of what would be involved at pp.186, 200-1.

[19]The logs had been dragged on a chain:  p. 348.  This damaged the road (p. 39, 213, Exhibit 9;  p. 175) which led to erosion:  p. 103, p. 137, p. 190, pp. 219-20, Exhibit 5. The defendant acknowledged that this could damage the road surface:  p. 349.

[20]Typical regrowth in country where the large trees were ring-barked years ago:  p. 184 (McNichol). Mr Winner put the mature yellow box at about 50 years old:  p. 144.

[21]Plaintiff:  p. 76;  McNichol:  p. 194;  Warhurst:  p. 288-9;  Winner:  p. 145-6;  Perkins:  p. 247.

[22]Passmore:  p. 268;  Bowden:  p. 292.

[23]Bowden:  p. 300-1 – thinning out other species.

[24]Mr McNichol said he would not remove the stumps if it were his property:  p. 195. The plaintiff’s objection to the stumps, that they would interfere with his slasher, (p. 28) could be met by cutting them off close to the ground.

[25]Perkins:  p. 239;  Bowden:  pp. 298-9.

[26]Perkins:  p. 250;  Passmore:  p. 260;  Bowden:  p. 292 – this improves its ability to survive drought:  p. 294.

[27]Plaintiff:  pp.117-8.

[28]Bowden:  p. 298, p. 301-2 – this does not involve a lot of work.

[29]This was supported by the evidence of Winner:  p. 154.

[30]I prefer this evidence to that of Perkins at p. 240. Bowden was better qualified to speak of the effectiveness of coppicing.

[31]The usefulness of such suckers for honey production depends on the extent of the canopy they develop;  Warhurst p. 276.

[32]That was to some extent supported by Passmore:  p. 263.

[33]Including removal of some smaller yellow box trees:  p. 24.

[34]25 percent of bobcat time in Item 2 in Exhibit 10, and 30 hours of labour, plus GST, based on the evidence of Mr McNichol at pp. 178-9.

[35]123 yellow box logs were felled, but some were from trees with two trunks (p. 38), and in at least one case one of two trunks was felled. The remaining trunk did not need to be replaced, and one tree with two trunks cut would be replaced by one seedling. I will therefore allow 115 seedlings.

[36]Plaintiff:  p. 39, p. 103;  Mr Leahy:  p. 213;  photographs:  Exhibit 5.

[37]Presumably because other species would provide more than enough nectar for the requirements of the hive, and some surplus.

[38]His evidence at p. 135 however produces a figure for typical Granite Belt production of 88.5 kg per hive.

[39]This is the retail price;  Capilano pays $2.41 per kilogram for yellow box honey, which has increased from $1.85 since 1997:  p. 149. The plaintiff said he actually sold his honey at $3 per kilogram:  p. 49, which is another reason why this calculation is inappropriate.

[40]See for example Warhurst p. 274;  Winner p. 166 – impact since the mid 80’s.

[41]I accept the evidence of Warhurst that this site could not sustain 40 or more hives:  p. 278. The plaintiff said he probably could not cope with more than 40:  p. 49.

[42]Winner:  p. 167.

[43]The plaintiffs’ tax return for 1994-95 showed income of $520 for honey:  Exhibit 8. This is also apparently inconsistent with the figures in Exhibit 6 of $750 for 1994 and $885 for 1995. It is not clear whether Exhibit 6 refers to financial or calendar years.

[44]The plaintiff in the witness box said he normally obtained 50-65 kilograms per annum from a hive, a figure which is not supported by Exhibit 6, and is less than Mr Winner’s typical Granite Belt production figure of 88.5 kilograms.

[45]That is, the discrepancy between Exhibit 6 (12 hives) and Exhibit 7 (6 hives).

[46]It would be more accurate to say “up to that level of exploitation”. I accept the evidence of Warhurst that these figures represent a maximum yield in ideal conditions, which have not been experienced recently:  p. 274, 281.

[47]Graham v Baker (1961) 106 CLR 340 at 347;  Husher v Husher (1999) 197 CLR 138 at 143.

[48]This was independent of the yellow box trees, which are not a good source of pollen for bees:  p. 286, p. 79.

[49]See Stormer v Ingram (1978) 21 SASR 93.

[50]He also claimed to have 500-1,000 mature yellow box trees on his own land, larger than the ones he cut from the plaintiffs’ land:  p. 346. I do not accept this either.

[51]The plaintiff said his honey production had dropped tremendously since the trees were cut (p. 122), and I think there is some truth in that.

[52]Both counsel in submissions made a deduction of 62 percent representing cost of production. That was based on the evidence of Mr Winner (p. 153) but he was talking of a commercial beekeeper. If the plaintiff is going to maintain the hives anyway, I cannot see how there will be any cost saving because of reduced yellow box honey production, so I will make no deduction. It was not submitted that I should make any deduction for income tax:  Exhibit 8 shows a large loss from primary production.

[53]The plaintiffs’ submissions suggested a return of $10-$15 per kilo, but this mistakes what was said at p. 49, where no figure is given for the sale of wax per kilo.

[54]Dykhuizen v Saanich District (1989) 63 DLR (4th) 211 at 215;  City of Prince Rupert v Pederson [1995] 1 WWR 421 at 426. In the latter case it was said that such damages were not available when the trees were on the property of a body corporate.

[55]McNichol regarded it a good timber for milling:  Exhibit 9. Howard, a sawmiller, said these logs were useless for milling, being too small (although he never milled yellow box of any size:  p. 257) and not much use for hail netting poles, because of where branches had been:  p. 256. Passmore said yellow box was not a good timber to mill:  p. 263. I prefer the evidence of Passmore.

[56]Defendant:  p. 312;  McNichol:  Exhibit 9.

[57]Although Exhibit 12 refers to a height at one metre in fact he measured the top of the stump:  p. 242.

[58]But see p. 235, line 46 – this was probably an error by Perkins.

[59]The defendant said that there would be 10 percent wastage (p. 348), and this sounds reasonable. Photos of the logs in Exhibit 5 show that some of them would have been in part not straight enough to be useful as posts.

[60]$1.50 x 8 x 3 x 119 x 90 percent.

[61]Bilambil – Terranora Pty Ltd v Tweed Shire Council [1980] NSWLR 465.

[62]In principle the damages should be reduced in this way because of the four logs left on the plaintiffs’ land;  but the defendants have not pleaded a failure to mitigate, which is required, as the onus is on the defendants:  Watts v Rake (1960) 108 CLR 158 at 159, so UCPR r 150(4)(d) applies. So no reduction will be made.

[63]Alternatively, if damages for trespass (turning the trees into logs) and conversion (taking the logs) were assessed separately, the former would have to be assessed on the assumption that the logs had not been taken, or the taking would be compensated for twice. Hence the value of the logs would be awarded as the damages for conversion and deducted from the damages for trespass. Not making the deduction produces the same result.

[64]See also evidence of the plaintiff:  p. 39;  Perkins:  p. 249.

[65]He admitted his wife had suggested he should:  p. 331. He said he did not think it was necessary.

[66]The plaintiff claimed he had told the defendant it was the best honey:  p. 32. I am not sufficiently confident of the plaintiff’s reliability to resolve this conflict in favour of the plaintiff.

[67]Some of it certainly had;  the 10 stumps measured by Perkins were in the cleared area:  p. 248.

[68]The defendant admitted he knew the plaintiff was proud of the yellow box trees:  p. 326. I do not regard this as showing that his actions were malicious.

[69]The High Court refused special leave to appeal from this decision.

Close

Editorial Notes

  • Published Case Name:

    Pietruszkiewicz v Whitfort (No 1)

  • Shortened Case Name:

    Pietruszkiewicz v Whitfort (No 1)

  • MNC:

    [2003] QDC 577

  • Court:

    QDC

  • Judge(s):

    McGill DCJ

  • Date:

    17 Apr 2003

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Backwell v AAA [1997] 1 VR 182
2 citations
Jump To
Cite 1 - [1997] 1 VR 182
Cite 2 - [1997] 1 VR 182
Baker Johnson v Jorgensen [2002] QDC 205
1 citation
Jump To
Cite 1 - [2002] QDC 205
Bilambil - Terranora Pty Ltd v Tweed Shire Council [1980] NSWLR 465
1 citation
Jump To
Cite 1 - [1980] NSWLR 465
Carr v Sourlos (1994) 6 BPR 13,626
2 citations
Jump To
Cite 1 - (1994) 6 BPR 13,626
Cite 2 - (1994) 6 BPR 13,626
City of Prince Rupert v Pederson [1995] 1 WWR 421
1 citation
Jump To
Cite 1 - [1995] 1 WWR 421
Cousins v Wilson [1994] 1 NZLR 463
1 citation
Jump To
Cite 1 - [1994] 1 NZLR 463
Dodd Properties Ltd v Canterbury City Council (1980) 1 WLR 433
2 citations
Jump To
Cite 1 - (1980) 1 WLR 433
Cite 2 - (1980) 1 WLR 433
Dykhuizen v Saanich District (1989) 63 DLR (4th) 211
1 citation
Jump To
Cite 1 - (1989) 63 DLR (4th) 211
Gazzard v Hutchesson (1995) Aust Torts Reports 81-337
2 citations
Jump To
Cite 1 - (1995) Aust Torts Reports 81-337
Cite 2 - (1995) Aust Torts Reports 81-337
Graham v Baker (1961) 106 C.L.R., 340
1 citation
Jump To
Cite 1 - (1961) 106 C.L.R., 340
Gray v Motor Accident Commission (1998) 196 CLR 1
1 citation
Jump To
Cite 1 - (1998) 196 CLR 1
Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14
4 citations
Jump To
Cite 1 - [1992] 1 Qd R 14
Cite 2 - [1992] 1 Qd R 14
Cite 3 - [1992] 1 Qd R 14
Cite 4 - [1992] 1 Qd R 14
Husher v Husher (1999) 197 CLR 138
1 citation
Jump To
Cite 1 - (1999) 197 CLR 138
Perry v Sidney Phillips & Son (1982) 1 WLR 1297
2 citations
Jump To
Cite 1 - (1982) 1 WLR 1297
Cite 2 - (1982) 1 WLR 1297
Plenty v Dillon (1991) 171 CLR 635
1 citation
Jump To
Cite 1 - (1991) 171 CLR 635
Sanders v Snell (1997) 73 FCR 569
2 citations
Jump To
Cite 1 - (1997) 73 FCR 569
Cite 2 - (1997) 73 FCR 569
Stormer v Ingram (1978) 21 SASR 93
1 citation
Jump To
Cite 1 - (1978) 21 SASR 93
Watts v Rake (1960) 108 CLR 158
1 citation
Jump To
Cite 1 - (1960) 108 CLR 158
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
2 citations
Jump To
Cite 1 - (1985) 155 CLR 448
Cite 2 - (1985) 155 CLR 448

Cases Citing

Case NameFull CitationFrequency
Greene v McInnes [2013] QDC 2072 citations
Haggar v Qld Metal Recyclers Pty Ltd [2019] QDC 2632 citations
1

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