Micallef v Galea [2001] NSWSC 984

New South Wales Supreme Court

CITATION : Micallef v Galea [2001] NSWSC 984 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2073/00 HEARING DATE(S) : 23, 24, 26 & 30 April, 8 June 2001 JUDGMENT DATE : 5 November 2001

PARTIES : John Micallef and Vicki Micallef (P) Frank Galea and Violet Galea (D) JUDGMENT OF : Austin J

COUNSEL : J Armfield (P) M Gorrick (D) SOLICITORS : Shaddick Baker & Paull, Richmond (P) John J Paine Ross & Co, Windsor (D) CATCHWORDS : TORT - nuisance - negligence - plaintiffs alter use and contour of land, affecting water flow to defendants' land - defendants build up their driveway thereby preventing water flow to their land - whether defendants' action a reasonable measure for protection of their land Comserv (No.1877) Pty Ltd & Anor v Wollongong City Council [2001] NSWSC 302 Elston v Dore (1982) 149 CLR 480 CASES CITED : Furness v Clark (1971) 1 SASR 359 Gartner v Kidman (1962) 108 CLR 12 Sedleigh-Denfield v O'Callaghan [1940] AC 880 DECISION : Proceedings dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION AUSTIN J MONDAY 5 NOVEMBER 2001 2073/00 JOHN MICALLEF AND VICKI MICALLEF V FRANK GALEA AND VIOLET GALEA Judgment

HIS HONOUR :

The properties 1 The plaintiffs are the owners of a property known as "Alandale", 148 Yarramundi Lane, Agnes Banks. They purchased it from Mr and Mrs Wilson in 1988. The property was used principally as a citrus orchard, with some pecan trees, until 1998. The plaintiffs now carry on business principally as market gardeners there. Most of the citrus trees and the pecan trees were removed in 1998, in circumstances that I shall describe. 2 The defendants are the owners of the adjoining land, 128 (sometimes called 123) Yarramundi Lane. They acquired their property in 1986, and shortly afterwards they cleared the land of citrus trees and established a market garden. Subsequently they reached an agreement with their neighbour on the opposite side to the plaintiffs' land with respect to drainage, and they constructed drainage channels on their land and their neighbour's, causing rainwater to flow towards Yarramundi Lane just below their common boundary. 3 The plaintiffs' and defendants' properties are approximately rectangular, although the rear boundaries, near the river frontage, are irregular. Yarramundi Lane runs along the south-eastern boundary of each of the two properties, and the Hawkesbury River is roughly parallel to the Lane, at the back of the two properties. No 148, the plaintiffs' property, is to the southwest of No 128, the defendants' property. The land slopes generally from the south-west to the north-east. Care must be taking into evaluating the evidence of some of the witnesses, and the evidence observed during the view on 23 April 2001, because imprecise compass directions have been used from time to time. 4 There is an unsealed driveway running parallel to the boundary between the plaintiffs' and the defendants' land, on the defendants' side, from Yarramundi Lane to the defendants' house. It is about 200 metres long. 5 The parties agree that the plaintiffs' land is generally higher than the defendants' land. During storms, surface water passes in a north-easterly direction through the plaintiffs' and defendants' properties, along a natural drainage depression. Some run-off is collected in a collection pond on the plaintiffs' land, which the plaintiffs constructed after they converted the main use of the land to a market garden. 6 Mr McKinlay, a registered surveyor engaged by the plaintiffs, undertook a survey of levels and details at the two properties in July 2000 and prepared a plan, showing an area of inundation on the plaintiffs' property. It is an area of approximately 4,200 sq m, of roughly triangular shape, widest at the boundary, jutting into the plaintiffs' land roughly one-quarter of the way along the boundary from Yarramundi Lane.