IT’S A SIGN: NEIGHBOUR DISPUTE OVER A PLACARD AND A POOL
By Glen Pearce
They say that good fences make good neighbours, but when it comes to swimming pools, that’s another story. In a decision of the District Court of South Australia, a disgruntled couple took a novel approach to air their grievances about the problems caused by their neighbours’ pool.
The Gilberts were neighbours with Ms Tripodi and her partner Mr Smith (the Tripodis). They had fallen out over a swimming pool excavation by the Tripodis. The Gilberts said that the excavation had damaged a retaining wall. The Tripodis said that the Gilberts needed to plug “weep holes” on their property.
In November 2014, the Gilberts advertised their house for sale. In time for the open inspections, the Tripodis put up a sign in their front yard that read:
Potential purchasers of
please be aware that there is an unresolved
property dispute between the landowners at
[Gilbert address] and [Tripodis address].
Call [number] for more information.
Upset by this, the Gilberts commenced court action against the Tripodis. It was a Minor Civil Claim in the Magistrates’ Court, meaning the claim was for $25,000 or less and so the parties were not represented by lawyers.
The Gilberts alleged that:
- The excavation was unlawful, negligent and a potential nuisance.
- The sign was defamatory.
The Tripodis responded with a cross claim (or counter claim) that the Gilberts needed to:
- Plug the weep holes on their property.
- Compensate the Tripodis for salt damp damage to their home.
The parties were at loggerheads. Neither would budge from their entrenched position and the Magistrate “made strenuous attempts” to resolve the matter.
At one point, an expert was appointed by the Court to prepare a report. When he went to inspect the properties, an associate of the Gilberts disrupted the inspection to such a degree that at one point he shirt-fronted Mr Smith. The inspection was abandoned.
In the end, the Magistrate found that:
- The sign was not defamatory and did not contain a false statement.
- As the Gilberts did not seem interested in resolving the matter, they were the authors of their own misfortune.
- There was no case where a non-defamatory sign had been the subject of successful legal proceedings by a neighbour.
- There was no evidence that the Gilbert’s property failed to sell because of the sign.
- The Gilberts had failed to establish that the sign had caused them loss.
The Magistrate dismissed the application.
Review by the District Court
The Gilberts then applied to the District Court for a review of the decision. A review is similar to an appeal, but the Court can hear further evidence if it thinks appropriate. This does not usually happen in an appeal.
The Court found that:
- The Magistrate was correct in rejecting the Gilberts’ claim that the sign was defamatory and malicious. The sign merely reflected the existence of a dispute.
- There was no defamation, nuisance or breach of statutory duty and the Gilberts had failed to prove that any action of the Tripodis had caused them damage.
The Court said that the Magistrate’s findings were correct and dismissed the application for review.
What are the lessons?
This case is a great example of what can happen when emotions run high and how important it is for any party in litigation to use common sense. Although they represented themselves, the parties were still subject to court fees and had to spend time preparing the matter for trial and review. And then there’s the emotional cost. Sometimes, it’s hard to see the wood for the trees and if you’re making important decisions, the pressure is really on.
If you are involved in a legal dispute, no matter how small, spending a bit of time discussing the matter with a lawyer can really help you clarify your position and work out what to do. Websters Lawyers are experienced litigators and available to provide you with advice, strategy and a clear path forward. All you need to do is call.
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