PROPRIETORS OF STRATA PLAN NO 13391 v ABATE [1996] NSWCA 437

PROPRIETORS OF STRATA PLAN NO 13391 v ABATE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, HANDLEY and COLE, JJA

12 March, 27 March 1996

[1996] NSWCA 437

NUISANCE — accumulating water and piping it onto adjoining building — liable.

Mahoney P The facts are detailed in the judgment of Cole JA which I have had the opportunity of reading. His Honour's statement of them enables me to go directly to the essential issues as posed by the arguments of Mr Rudge for the appellant-defendant.

The issue in this appeal turns upon the way in which the waters from the roof and guttering on the defendant's premises was discharged. Before about mid-1985, the water, or at least the relevant part of it, was discharged into a downpipe which took it from the gutter to ground level. The downpipe took the water below the level of the ground. Although it did not appear merely from a surface inspection, the evidence disclosed that the water from the downpipe was directed underground along a clay pipe or drainage line which extended from the bottom of the downpipe a few metres across the defendant's property and into the plaintiff's property. This was the plan of the drainage, if it operated.

At the time, as the judge held, the guttering was "grossly defective". It was rusted through and (as I infer) water poured through the guttering rather than being directed down the downpipe.

The water which then flowed onto the plaintiffs property does not appear to have caused any relevant damage to the plaintiffs building or property. At least, nothing turned on any such damage.

In about mid-1985, plumbing work was done on the guttering and the downpipe. The guttering was repaired or replaced and the downpipe was replaced. The judge assumes this to have been done by "some plumber" and that the plumber had acted at the defendant's request and with their authority.