Dynamic Flooring Pty Limited v Carter & Anor [2001] NSWCA 396

New South Wales Court of Appeal

CITATION : Dynamic Flooring Pty Limited v Carter & Anor [2001] NSWCA 396 FILE NUMBER(S) : CA 40910/00 HEARING DATE(S) : 28 August 2001 JUDGMENT DATE : 8 November 2001

PARTIES : Dynamic Flooring Pty Limited v James Frederick Carter and Triene Amelia Carter JUDGMENT OF : Priestley JA at 1; Beazley JA at 47; Stein JA at 48

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 4063/98 FILE NUMBER(S) : LOWER COURT Hodgson CJ in Eq JUDICIAL OFFICER :

COUNSEL : Appellant - T.S. Hale SC / G.L. Turner Respondents - T.J. Morahan SOLICITORS : Appellant - Yandell Wright Stell Respondents - A.R. Conolly & Company CATCHWORDS : Private nuisance CASES CITED: Don Brass Foundry Pty Ltd v Stead (1948) 48 SR 482 DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40910/00 ED 4063/98 PRIESTLEY JA BEAZLEY JA STEIN JA

Thursday, 8 November 2001 DYNAMIC FLOORING PTY LIMITED v CARTER & ANOR

PRIVATE NUISANCE - owner of residential land alters land to reduce flow of storm and flood water on to it – neighbouring residential block then becomes subject to worse flow of storm water on to it than before – claims and cross-claims between the parties the outcome of which depended on whether private nuisance had been created – trial judge finds there had – on appeal appellant contends (1), judge's factual findings not justified on the evidence; (2), in any event factual findings did not support the holding that a private nuisance had been created – both grounds fail – as to (1), evidence sufficient for judge's findings – as to (2), there had been appropriate application of accepted authority concerning the tort of nuisance. ORDERS Appeal dismissed with costs.