Facts
1.0 Facts
Case Name:CEFN Genetics Pty Ltd V BAKS & Another
Parties Involved: Lee and Mr. Rogers, owners of CEFN Genetics Pty Ltd along with Mr. Ted, who has filled suit are parties in the case.
Sufferer: Ted suffered losses as
How:During absence of Mr. Ted, Mr. Lee stated to his old friend Mr. Roger that Mr. Ted had given permission to remove trees and convert it into a car parking for the Company. This falsification of information or tort led to harming of Mr. Ted by encroaching on his property. Thus, Mr. Ted suffered loss to his property, which led him to file a suit against the Company.
Why?:The property that was encroached by the Company purposely without any prior information. Moreover, the property that was encroached belonged to Mr. Ted’s house. The situation was totally avoidable if the Company had obtained prior information and had not built any construction on Mr. Ted’s property.
What is the known (relevant) information?:The case provides all relevant and pertinent information related to the case.
Is there any missing information?All information is clear in the case and there was missing information related to monetary value, which has been lost due to the encroachment.
Include specific details like dates and monetary figures:Court for the case was 20 Floor 6, Date: 18 June 2018, Time: 10:00 am and Judge Name: JS Douglas.
2.0 Issues
Identify the problem: what has gone wrong and for whom?: The problem lies in property that has been encroached of Mr. Ted. During absence of Mr.Ted, the plaintiff, the accusers Mr. Lee’s Company CEFN Genetics Pty Ltd has committed a civil wrong doing. The wrong doing is disputable as per Property Law Act 1974. As Mr. Ted was not aware during the act committed by the accuser hence it can be regarded as a tort also.
Name each Plaintiff and Defendant and briefly describe their individual issues:The plaintiff Mr. Ted had a house located just beside CEFN Genetics Pty Ltd. His issue was that his area of his house was encroached by the Company to form a car parking space for the same.
The Defendant CEFN Genetics Pty Ltd in the absence of Mr. Ted had wrongfully removed some trees that were present in the house to build a car parking space for them. Mr. Lee of the Company states that Mr. Ted had provided permission to the Company for the same.
Issues
Work out what area of law may govern the resolution of the problem:Areas of law that will govern the resolution for the stated problem is Law of Tort and Property Law Act 1974. The Property Law will help analyse encroachment problem that have occurred and Law of Tort for the civil wrong doing to Mr. Ted. The Law of Tort of Negligence due to trespassing can be applied to this case and plaintiff can claim for losses suffered.
3.0 Rules and Relevant Law
Set out the legal principles that will be used to address the problem:The legal principle that will be applied to resolve this case is law of tort of trespassing and Property Law. This case will be similar to Mohamed and Another v Busoka (PC CIVIL APPEAL NO. 112 OF 2002) [2006] TZHC 7 (3 February 2006) where plaintiff had suffered losses in property. In this case also Mr. Ted is suffering losses to his property due to extension of the Company CEFN. Moreover, according to the Property Law in Australia of Section 184, an owner has all rights over his property and any trespasser can get sued legally for encroachment.
Source legal principles from cases and legislation:Legal and common laws is present that protect privacy which can protect against physical intrusion. Trespassing to someone’s land or intrusion into property can trigger actionable course of action. In case of recognizable form of damage then claimant might establish the same in the court of law. In case of the wrong occurred, and in cases of any real harm maintained, or by method for comfort or vindication of his or her rights, it is highlighted ‘General’ damages, and often substantial, are awarded in order to compensate the claimant. In case there is unique mortification of the petitioner by the defendant award might be related to Aggravated damages. In case the defendant acting maliciously or intentionally also, in self-important or contumelious dismissal of the inquirer’s rights, award might become for Exemplary or punitive damages. The defendant, Mr. Lee’s Company expansion in this case, while trespassing on land, in spite of the fact that harms have been esteemed a satisfactory cure in cases including business endeavors, Claimants might seek injunctions to restrain without authorization. As in famous Venning v. Chin case, the decision of High Court of Australia was established. Though it was a case of road accident yet Hogart J. established it with common law case.
Rules and relevant Law
4.0 Application
The Plaintiff’s claims are (or are not) justified, based on the body of law pertaining to the case:
Law is used by each party to argue their case?:The plaintiff has made use of tort law, which implies a civil wrong doing. According to this law, the individual suffers wrong or injury as in this case wrong, due to which the court will assists the plaintiff to get compensation. Law of tort is a private law as CEFN has by negligence caused harm to Mr. Ted by intruding wrongfully in his land area. According to tort of Negligence, a legal action can be considered in case there is a duty of care owed. Breach of the duty causing damages resulted in plaintiff suing the defendant. CEFN had duty of care to remove tress from Mr. Ted’s house. The defendant however failed to deliver standard of care as it built parking space in the area. Damage to the plaintiff is not too remote, meaning that Mr. Ted will face direct consequences from reduction in space of the property of his house. According to Civil Liability Act, the defendant owes some liability not to intrude upon space of a. Avoiding of foreseeable risks and breach of duty of care resulted in defendant acting in a careless manner and not abiding by Property Law.
5.0 Conclusion
From the above case analysis, it can be understood that Mr. Ted need to claim for damages suffered from CEFN Company. He was not aware of intrusion taking place in his property and he also suffered from turning his house property area into car parking space. CEFN needs to pay for damages done primarily due to negligence from duty of care and property law as has been discussed. Parties could have avoided the legal case, in case CEFN had approached Mr. Ted directly or Mr. Ted would have approached CEFN directly to resolve their issues.
Reference:
Articles/ Books
Barker, Kit, et al., The law of torts in Australia. (Oxford University Press, 2012).
Stickley, Amanda P. Australian torts law. (LexisNexis Butterworths, 2016)
Salmond, J. W., & Heuston, R. F. V. (1977). Salmond on the Law of Torts. (Sweet & Maxwell).
Cases
R v Costanza 1997
Mohamed and Another v Busoka (PC CIVIL APPEAL NO. 112 OF 2002) [2006] TZHC 7 (3 February 2006)
Legislation
Property Law Act 1974 (QLD)
Law of Property Act (NT)
Real Property Act 1900 (NSW)
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