Museth v Windsor Country Golf Club Ltd [2016] NSWCA 327

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Museth v Windsor Country Golf Club Ltd [2016] NSWCA 327 Hearing dates: 14/11/2016 Date of orders: 28 November 2016 Decision date: 28 November 2016 Before: Gleeson JA at [1]; Barrett AJA at [2]; McDougall J at [3] Decision: Appeal dismissed with costs. Catchwords: TORT – nuisance – water runoff from golf club onto neighbour's property – whether cracking to walls and roof sag resulting from expansion / contraction of reactive clay was caused by water from defendant's premises – whether damage is structural or cosmetic

DAMAGES – nuisance – whether damage was structural or cosmetic – damages for underpinning – where no evidence of that cost – damages for demolition and rebuilding – where no evidence of that cost

EXPERT EVIDENCE – admissibility of expert evidence – whether expert evidence satisfies requirement for admissibility under s 79 of Evidence Act 1995 (NSW) – where absence of demonstrated reasoning process – whether it was open to the primary judge to receive that evidence – whether expert evidence supported claims for damages Legislation Cited: Evidence Act 2005 (NSW), ss 56, 76, 79, 135 Supreme Court Act 1970 (NSW), s 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), rr 31.28, 51.41 Cases Cited: Cole v The Commonwealth of Australia (1961) 106 CLR 653; [1961] HCA 87 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Category: Principal judgment Parties: Michael Museth (Appellant) Windsor Country Golf Club Ltd (Respondent) Representation: Counsel: BJ Gross QC / TJ Boyd (Appellant) M Ashhurst SC / HJA Neal (Respondent)