DYNAMIC FLOORING PTY. LTD. V. CARTER & ANOR [2000] NSWSC 992

New South Wales Supreme Court

CITATION : DYNAMIC FLOORING PTY. LTD. V. CARTER & ANOR [2000] NSWSC 992 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4063/98 HEARING DATE(S) : 5, 6, 7 June and 23 October 2000 JUDGMENT DATE : 23 October 2000

Dynamic Flooring Pty. Limited - plaintiff PARTIES : James Carter - 1st defendant Triene Carter - 2nd defendant JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. N. Carney for plaintiff Mr. T. Morahan for defendants SOLICITORS : Yandell Wright Stell, Sydney A.R. Connolly & Company, Sydney CATCHWORDS : COSTS - NUISANCE. Discharge of water - Reasonableness of conduct - Proof of damage - Small damages and limited injunction - Desirability of neighbours seeking a solution and making reasonable concessions - One-half costs awarded to successful party. DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Monday 23rd October 2000

NO. 4063 OF 1998 DYNAMIC FLOORING PTY. LTD. V. CARTER & ANOR.

JUDGMENT

1 HIS HONOUR: The plaintiff, Dynamic Flooring Pty Ltd, owns a property known as 20 Marandowie Drive, Iluka. Mr Alan Lambert, who is the second cross-defendant, or corporate entities controlled by him, own in addition the properties known as 22, 24 and 26 Marandowie Drive, Iluka. 2 In early 1998, when the plaintiff was negotiating to sell 20 Marandowie Drive, solicitors acting for the first defendant, Mr Carter, one of the owners of an adjoining property, 18 Marandowie Drive, wrote to solicitors acting for the proposed purchaser alleging that alterations made by the plaintiff to the slope of its land had resulted in the escape of water on to Mr Carter's property, and advising that Mr Carter would look to the owner of number 20 to abate the nuisance. The proposed purchaser elected not to proceed. 3 The plaintiff's solicitor sought an undertaking from Mr Carter that he would desist from such allegations, and this undertaking was not given. 4 On 29 September 1998, these proceedings were commenced by a summons against Mr Carter, seeking a declaration that there was no water nuisance and seeking also an injunction restraining Mr Carter from asserting that there was. There was subsequently an amendment to the summons to join the second defendant, Mrs Carter, wife of the first defendant, who is the other half owner of 18 Marandowie Drive. 5 By cross-claims brought against the plaintiff and its director, Mr Lambert, Mr and Mrs Carter claimed an injunction against the plaintiff and Mr Lambert from continuing the alleged nuisance to their property, and also damages. 6 I heard this case over three days in June this year, and reserved my decision. Consideration of the matter gave rise to two issues which I thought had not been fully dealt with, with the result that I sent a memorandum dated 9 June 2000 to counsel. This has resulted in further evidence being presented and a further short hearing of the case this morning.