Adding some proof to the theory that good fences may make better neighbours, a dispute over a dividing wall between two cul-de-sac homes in Underwood escalated into a 10 month campaign of violence and malicious damage that last month brought such “appalling behaviour” before the District Court at Beenleigh.
Andrew and Sharyn Nicholls occupied 18 Charlane St under licence as part of a 2005 installment contract that requires them to pay 300 installments of $2,400 over 25 years to owner Jimmy Lee.
The so-called “hire purchase” agreement included a right to construct new boundary fences. Other alterations required Mr Lee’s written consent.
Neighbouring owners to the Nicholls’ north in no 16, were investors Dragan and Vesna Bilic against whom the Nicholls campaigned to force the demolition of a small boundary wall and its reconstruction at the Bilic’s expense .
So extreme did events become that the Bilic’s tenant walked out after having mud thrown at the house daily.
The allegations against Andrew and Sharyn Nicholls included trespass, assault, threats, willful destruction and harassment – including of the plaintiff’s real estate agent engaged to re-let and then eventually, sell the property – that extended to “continual surveillance” and videoing the Bilics at their Sunnybank home when delivering a letter during which process, Andrew threatened to kill them.
Also alleged to have excavated up to 2 m into the Bilic’s property and to have dumped fill on to it, Andrew then to have convinced the Logan Council – in one of “30 or 40 unwarranted complaints” made to the council and police – that his neighbours should be breached because of the danger created by the rubble.
After re-letting attempts proved futile – the Nicholls posted deterrents on the telephone post between the two properties – the home was ultimately sold in November 2010 for $335,000 – at a $73,000 loss to its worth proven by expert valuation.
The Bilics filed suit seeking damages for among other things, trespass, nuisance and interference with contractual relations.
Also sued was owner Jimmy Lee because – standing to gain a benefit to his property from a new fence or retaining wall – “he permitted [the Nicholls] to act as his agents” and subsequently ratified their behaviour.
None of the defendants appeared at the trial and all the plaintiff’s allegations were accepted with corroboration from two other witnesses, one of whom has himself been subjected to the relentless intimidation.
The trial Judge found the loss on the sale of no 18 to be directly applicable to the Nicholls harassment, “rather than market forces”.
Holding that the Nicholls “intimidatory, humiliating and disgraceful” conduct was unlawful, the court also awarded $30,000 aggravated compensatory damages and a further sum of $30,000 by way of exemplary damages to punish them for “conscious and contumelious disregard for the plaintiff’s rights” and to deter similar future conduct.
The total award was $156,000 plus costs.