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Boyes v Thomson

Boyes v Thomson

Case [2024] NSWSC 1325 24 October 2024

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Boyes v Thomson [2024] NSWSC 1325
Hearing dates: 8-9 October 2024
Date of orders: 24 October 2024
Decision date: 24 October 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
At [91]

Catchwords:
TORTS — Private nuisance — Interference with use and enjoyment of land — Whether stormwater ingress from uphill neighbouring property a nuisance — Whether defendant has continued or adopted the nuisance
TORTS — Private nuisance — Remedies — Whether loss suffered — Whether injunction should be granted preventing defendant from draining stormwater runoff onto plaintiffs’ land — Whether injunction should be granted requiring the defendant to carry out works

Legislation Cited:
Evidence Act 1995 (NSW) s 53

Cases Cited:
Aon Risk Services v Australian National University (2009) 239 CLR 175
Brown v Tasmania (2017) 261 CLR 328
Elston v Dore (1982) 149 CLR 480
Evans v Balog [1976] 1 NSWLR 36
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514
Gray v Sirtex Medical Ltd (2011) 193 FCR 1
Manchester Ship Canal Company Ltd v United Utilities Water Ltd (No 2) [2024] UKSC 22
Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31
Rifai v Woods [2024] NSWSC 374
Seiwa Ply Ltd v Owners Strata Plan 35,042; [2006] NSWSC 1157
Transport for NSW v Hunt Leather Pty Ltd [2024] NSWCA 227

Category: Principal judgment
Parties: Frank Ralph Boyes (first plaintiff)
Sheena Elizabeth Boyes (second plaintiff)
Shane David Thomson (defendant)
Representation:
Counsel:
M Seymour SC and C Koikas (plaintiffs)
V Bedrossian SC (defendant)
Solicitors:
Conditsis Lawyers (plaintiffs)

File Number(s): 2022/00366174
Publication restriction: Nil

Judgment

Mr Frank Boyes and Mrs Sheena Boyes live in Medowie NSW in a home they built in 2008 (No. 37) in a large sub-division development known as “Pacific Dunes”. They complain that water emanating from their neighbour Mr Shane Thomson’s higher land (No. 18) flows onto their lower lying land in excessive amounts.
The Boyes allege that Mr Thomson’s construction of his home at No. 18 does not have sufficient drainage of run-off. They claim that water flows down to the south-western corner of his land, and then into the back of No. 37 in a volume that causes a substantial interference with the use and enjoyment of the Boyes’ land and therefore amounts to a nuisance.
In particular, the Boyes assert that Mr Thomson knew that an interallotment drainage system (IAD) was “not capturing and disposing of stormwater runoff or overland flow” and that there was no “evidence of active steps” taken by Mr Thomson to end the occasions of excessive water. They contend that Mr Thomson is liable for having adopted a nuisance.
Mr Thomson denies he has caused or adopted any nuisance. He asserts that he has developed his land in accordance with development consents and has taken reasonable steps to prevent water flowing from his property to the Boyes’ property.

Issues in dispute

On 3 October 2024, the Boyes filed a notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boyes v Thomson

Details

AGLC: Boyes v Thomson [2024] NSWSC 1325
Case: [2024] NSWSC 1325
Decision Date: 24 October 2024

CaseChat Overview and Summary

The parties involved in the case were Boyes and Thomson. The nature of the dispute was whether the defendant, Thomson, was causing a private nuisance by allowing stormwater to run off from his property onto the plaintiff’s land. The court hearing the matter was the Supreme Court of New South Wales. The plaintiff, Boyes, alleged that the stormwater ingress from Thomson’s property constituted a private nuisance, interfering with the use and enjoyment of his land. Additionally, Boyes sought an injunction to prevent Thomson from draining the stormwater onto his property and an injunction requiring Thomson to carry out works to prevent such ingress.

The primary legal issue the court had to decide was whether the defendant’s actions constituted a private nuisance. Specifically, the court needed to determine if the stormwater ingress from Thomson’s property to Boyes’ land was unreasonable and interfered with Boyes’ use and enjoyment of his property. Another issue was whether Thomson had continued or adopted the nuisance, and if so, whether this influenced the determination of liability. The court also needed to consider the appropriate remedies, including whether an injunction should be granted to prevent further ingress and whether an injunction should be issued to require Thomson to carry out works to address the issue.

The court found that the stormwater ingress from Thomson’s property to Boyes’ land constituted a private nuisance. The court held that the ingress was unreasonable as it interfered with Boyes’ use and enjoyment of his land. The court further determined that Thomson had not continued or adopted the nuisance, as the ingress was a natural occurrence exacerbated by landscaping on Thomson’s property. The court granted an injunction to prevent Thomson from draining stormwater onto Boyes’ land and ordered Thomson to carry out works to prevent further ingress. This decision was based on the balance of convenience favouring Boyes and the availability of practical measures to mitigate the nuisance.

The final orders of the court were that Thomson was to take all necessary steps to prevent the stormwater from running onto Boyes’ property and to carry out works to address the ingress. The court emphasised that these measures were practical and feasible, and their implementation would prevent further nuisance to Boyes. The court did not award damages for loss suffered by Boyes, as it found that the injunctions provided sufficient relief.

Orders