Case Law Update: Stop making noise! Dejanovic v Sheppard [2025] VSC 588 (18 September 2025)

The defendant largely admitted to making the noise but argued she was entitled to do so because she believed the plaintiff’s tenants were running noisy air-conditioning and heating units, and that her banging, shouting and music were simply her way of getting them to turn the units off. 

 

Evidence from three sets of tenants, and from two caretakers engaged after the property became unable to be tenanted in was largely consistent: the banging occurred overnight regardless of whether any unit was running, and the noise had caused sleep deprivation, distress and, ultimately, each tenancy ending early or the tenants being relocated at the plaintiff’s expense.

 

The Court found that the defendant’s conduct constituted a continuing nuisance. Critically, the Court held that even if the defendant had a legitimate grievance about noise from the air-conditioning units, she was not entitled to commit her own nuisance in response. She was required to seek lawful redress instead. The Court also grappled with a more technical issue: because the plaintiff did not occupy the investment property himself but held it as a landlord (a “reversioner”) while it was tenanted, his ability to claim damages for that period depended on whether the nuisance was sufficiently permanent in character to damage his reversionary interest, applying principles going back to nineteenth-century authorities such as Bell v The Midland Railway Co.

 

 The Court found that it was, given the noise had already caused the collapse of three tenancies and the defendant had made clear she saw no reason to stop.

 

The plaintiff was awarded damages of $207,774, comprising lost rent calculated by reference to expert valuation evidence, together with rent reductions and lost rent arising from the early termination of each tenancy. 

 

The Court declined to award exemplary damages, finding that compensatory damages adequately expressed the Court’s disapproval of the conduct, and granted a permanent injunction restraining the defendant from banging on the party wall, shouting at unreasonable volume, or playing audio devices at unreasonable volume.  Notwithstanding the defendant’s evidence that she had contracted to sell her property, given the uncertain and lengthy timeframe before any settlement.

 

This decision is a clear reminder that a person who believes they are the victim of a nuisance has no self-help remedy of committing a nuisance of their own in retaliation.  The correct course is always to seek lawful redress, whether through negotiation, council intervention, or the courts. A genuinely held grievance, even one with some evidentiary support (as the defendant’s complaints about the air-conditioning units had, to a degree), provides no defence to a claim in nuisance based on retaliatory conduct.

 

The case is also a useful illustration of the reversioner’s position in nuisance claims involving leased investment property. Landlords whose tenants are driven out by a neighbour’s conduct are not left without a remedy merely because they were not in physical occupation at the relevant time, provided the interference is of sufficient permanency (which, on the authorities discussed, does not require literal permanence, only a real prospect of continuation or recurrence), a landlord can recover both for lost rent after regaining possession and for losses such as rent reductions and early termination costs incurred during the currency of a tenancy. For property owners and their advisers, this case confirms that a well-documented pattern of noise complaints, tenant turnover, and unsuccessful mitigation attempts (such as relocating problem equipment or seeking intervention orders) can found a substantial damages claim, and that an injunction remains available notwithstanding an offending neighbour’s plans to sell, where the timing of any such sale remains uncertain.

 

For expert assistance and advice concerning property, neighbour and nuisance disputes please contact Phillip Leaman at Tisher Liner FC Law.