Proceedings between residential neighbours which originated from the plaintiff claiming injunctive relief to prevent continuance of nuisance which emanated from wind chimes on the defendants’ property. The injunctive relief subsequently became unnecessary but leave was granted for the applicant to pursue his former neighbours with an additional claim for damages for malicious prosecution because the defendants had their complaints against the applicant dismissed under the Peace and Good Behaviour Act 1982. The applicant, inter alia, maintained that in making and maintaining the prosecution of those complaints, the defendants acted maliciously and predominately out of spite, including appearing on a segment on “A Current Affair” which was intended, he says, to embarrass and bring scorn upon him.
The defendants filed a counterclaim against the applicant and his son by way of private nuisance, trespass to real and personal property and an assault.
Neither party was successful. Concerning the applicant’s claim for nuisance, Jarro DCJ was not satisfied the presence of the wind chimes and the noise generated from the chimes was material or unreasonable. Addressing the applicant’s claim for malicious prosecution, Jarro DCJ was not persuaded to the required standard that the defendants complaints initiated and continued under the Peace and Good Behaviour Act were without probable cause and brought with malice in the relevant sense. Turning to the counterclaim of private nuisance, trespass to real and personal property and an assault, Jarro DCJ found the claim was not established.
Rachel De Luchi appeared for the defendants, instructed by Robinson Locke Litigation Lawyers.
The judgment is published here.
