Andrew Walsh v Adam Ginsberg [2010] NSWDC 164

New South Wales District Court

CITATION: Andrew Walsh v Adam Ginsberg [2010] NSWDC 164

HEARING DATE(S): 01/02/10 - 05/02/10, 3/5/10 - 06/05/10, 23/07/10, 30/7/10

JUDGMENT DATE: 30 July 2010

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: Verdict and Judgment for the Defendant

CATCHWORDS: Action in Nuisance - Categories of Private Nuisance - Principles applicable to nuisance created by surface water - Considerations of reasonableness and compromise - Necessity for there to be material damage - Application to the facts

Hunter v Canary Wharf Limited & London Docklands Development Corporation (1997) 2All ER 426 Gartner v Kidman (1962) 108 CLR 12 Corbett v Pallas (1995) 86 LGERA 312 CASES CITED: Sedleigh-Denfield v O'Callaghan (1940) AC 80 Bayliss v Lea (1961) NSWR 1002 St Helens Smelting Company v Tipping (1865) 11 ER 1483 Bonnici v Ku-Ring-Gai Municipal Council (2001) NSW SC 1124

TEXTS CITED: Fleming on Torts 2nd Ed

PARTIES: Andrew Walsh (Plaintiff) Adam Ginsberg (Defendant)

FILE NUMBER(S): 921/09

COUNSEL: M Hadley (Plaintiff) M Luitingh (Defendant)

JUDGMENT

1 The plaintiff and defendant are young men who live with their wives and families in adjoining properties located in a bushland setting close to one of Sydney's northern beaches. For the sake of the parties' privacy, I will refer in this judgment to the street in which they both live as "the Road". The Road can be seen in the location maps, being exhibit J.

2 The plaintiff and his wife and children live at number 24 and the defendant and his wife and children live next door at number 26. Exhibit H is a helpful aerial photograph of the two properties.