Andrew Walsh v Adam Ginsberg

CITATION:	Andrew Walsh v Adam Ginsberg [2010] NSWDC 164
HEARING DATE(S):	01/02/10 - 05/02/10, 3/5/10 - 06/05/10, 23/07/10, 30/7/10
JUDGMENT DATE:	30 July 2010
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	Verdict and Judgment for the Defendant
CATCHWORDS:	Action in Nuisance - Categories of Private Nuisance - Principles applicable to nuisance created by surface water - Considerations of reasonableness and compromise - Necessity for there to be material damage - Application to the facts
CASES CITED:	Hunter v Canary Wharf Limited & London Docklands Development Corporation (1997) 2All ER 426 Gartner v Kidman (1962) 108 CLR 12 Corbett v Pallas (1995) 86 LGERA 312 Sedleigh-Denfield v O'Callaghan (1940) AC 80 Bayliss v Lea (1961) NSWR 1002 St Helens Smelting Company v Tipping (1865) 11 ER 1483 Bonnici v Ku-Ring-Gai Municipal Council (2001) NSW SC 1124
TEXTS CITED:	Fleming on Torts 2nd Ed
PARTIES:	Andrew Walsh (Plaintiff) Adam Ginsberg (Defendant)
FILE NUMBER(S):	921/09
COUNSEL:	M Hadley (Plaintiff) M Luitingh (Defendant)

JUDGMENT

1 The plaintiff and defendant are young men who live with their wives and families in adjoining properties located in a bushland setting close to one of Sydney’s northern beaches. For the sake of the parties’ privacy, I will refer in this judgment to the street in which they both live as “the Road”. The Road can be seen in the location maps, being exhibit J.

2 The plaintiff and his wife and children live at number 24 and the defendant and his wife and children live next door at number 26. Exhibit H is a helpful aerial photograph of the two properties.

3 The neighbourhood is nowadays a densely populated urban area with properties close to each other. Both number 24 and number 26 are downhill from the top of Bushrangers Hill (the “Hill”). The evidence shows that water has always flowed down from the top of the Hill, sometimes in considerable volumes, onto the properties now owned by both the plaintiff and the defendant.

4 The plaintiff purchased number 24 in 2002. At or around the same time, his parents purchased number 22 and they still live there.

5 Shortly after purchasing his property, the plaintiff and his family built a new home on it which they completed in December 2004.

6 The defendant purchased number 26 in November 2003. He rented the property for a short time to the previous owner before he and his family commenced living there in 2004.

7 When he purchased it, the defendant’s property was an old two-storey, mostly weatherboard, home which had been constructed some time in the late 1930’s or thereabouts. Unlike the plaintiff, the defendant did not demolish the home but, instead, he renovated and refurbished it. Construction work began on number 26 in early 2008. The work is not fully complete.

8 The Road runs along the southern boundary of both properties. Approaching it from the closest main street, the Road runs in an approximately east-west direction. Number 26 is located to the east of number 24 and…