Appeal court reverses $360,000 defamation payout in neighbours’ dispute

The Court of Appeal found Ms Hutley had established a defence of truth to four of five defamatory meanings conveyed by the broadcast, including the most serious claims of bullying and endangering life. A defence of contextual truth was established in relation to the fifth meaning.

The Supreme Court heard Mr Cosco pleaded guilty to malicious damage for spraying expanding foam into a kitchen vent for a fan over Ms Hutley’s gas stove. He believed the vent, located on a wall at the boundary of the properties, was a hazard and should be repositioned.

“The clearest act of bullying in the present case was the malicious damage to the flue of the extractor fan from the kitchen used by the appellant and her family,” said Justice John Basten, with whom Justices Robert Macfarlan and Richard White agreed.

“Threatening to damage someone else’s home because they do not promptly comply with your requests is the act of a bully, as is carrying out the threat.”

The court said briefing a private investigator to look into Ms Hutley and her husband also amounted to bullying.

Mr Cosco had risked endangering the lives of Ms Hutley and her family by blocking the vent with flammable foam, the court found.

“The thrust of the imputation was that the action of the plaintiff could have led to a fire or small explosion in the kitchen, if the stove had been in operation at the time he sprayed the foam into the vent,” Justice Basten said.

During the original trial, Mr Cosco’s barrister, Sue Chrysanthou, SC, had alleged Ms Hutley hurled abuse at Mr Cosco from her balcony.

“It sounds like something out of Shakespeare,” Justice Rothman said.

“It does Your Honour, it does sound like the Globe [Theatre],” Ms Chrysanthou replied.

“Verona,” said Ms Hutley’s barrister, Bruce McClintock, SC, before reciting lines from the balcony scene in Romeo and Juliet.

The court ordered Mr Cosco to pay Ms Hutley’s costs.

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