Heymans & Anor v Reilly & Anor [2013] NSWDC 227

District Court New South Wales

Medium Neutral Citation: Heymans & Anor v Reilly & Anor [2013] NSWDC 227 Hearing dates: 6, 9, 10, 11 & 12 September 2013 Decision date: 13 September 2013 Before: Neilson DCJ Decision: I give verdict and judgment for the defendants against the plaintiffs I order the plaintiffs to pay the defendants' costs on the ordinary basis until Thursday 5 September 2013 and thereafter on an indemnity basis Catchwords: TORTS - Nuisance - Plaintiffs and defendants neighbours on rural residential properties sharing common boundaries - Defendants commenced works to improve the surface of their access road which runs parallel to boundary of the plaintiffs' land - The access road previously had a drain on its western side - The defendants had a concrete spoon drain and kerb constructed running down its length to provide a flow path for stormwater - Plaintiffs allege that new spoon drain concentrated water flow behind the kerb, leading to a deepening of a channel beside the concrete road edge

Minor erosion only - No actionable nuisance for either actual damage to property (no evidence as to quantum) or substantial and unreasonable interference with plaintiffs' enjoyment of property

Plaintiffs also claimed pond partly on their land and partly on defendants' land had created a nuisance - Pond existed prior to subdivision of land and no relevant change - No nuisance caused by pond

Plaintiffs only pressed for injunctions in address but not available as no actionable nuisance - Seven different orders could be made but no evidence to suggest that orders sought by plaintiffs were appropriate orders Legislation Cited: District Court Act 1973 s 46 Cases Cited: Butcher v The Borough of Woollahra (1876) 14 SCR (NSW) 474 Gartner v Kidman (1962) 108 CLR 12; [1962] HCA 27 Solicitor-General v Smith (1896) 14 NZLR 681 Texts Cited: Rosalie Balkin and Jim Davis, Law of Torts (LexisNexis Butterworths, 4th ed, 2009) Martin Davies, 'Private Nuisance, Fault and Personal Injuries' (1990) 20 UWAL Rev 129 Dr David Rolph, Nuisance (9 June 2012) Halsbury's Laws of Australia Category: Principal judgment Parties: Joseph Theodore Heymans (First plaintiff) Christine May Yee (Second plaintiff) Paul Reilly (First defendant) Carol Halford (Second defendant) Representation: Mr P Batley (Plaintiffs) Ms C Smith (Defendants) Carty & Cox, Solicitors & Conveyancers (Plaintiffs) Robson & Oliver (Defendants) File Number(s): 2012/098152