Conti v Chenery - [2001] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CONTI -v- CHENERY & ANOR [2001] WASC 107

CORAM: OWEN J

HEARD: 13-15 DECEMBER 2000,
11 JANUARY 2001

DELIVERED : 30 APRIL 2001

FILE NO/S: CIV 1532 of 1997

BETWEEN: ANNE ELIZABETH CONTI
Plaintiff
AND
JOHN MICHAEL CHENERY
LOIS DAWN CHENERY
Defendants

Catchwords:

Torts - Remedies - Defective dam causing nuisance to plaintiff's land - Whether mandatory injunction to fill in dam necessary - Appropriate measure of damages - Turns on own facts

Legislation:

Nil

Result:

Injunction refused
Damages awarded

Representation:

Counsel:

Plaintiff: Mr K J O'Toole
Defendants: Mr M T Ritter

Solicitors:

Plaintiff: Kevin James O'Toole & Associates
Defendants: Michael Whyte & Co

Case(s) referred to in judgment(s):

Chenery v Conti [1999] WASCA 258
Conti v Chenery, unreported; SCt of WA; 5 August 1998; Library No 980432
Dodd Properties (Kent) Limited v Canterbury City Council [1980] 1 WLR 433
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
Redlands Bricks Ltd v Morris [1970] AC 652
Thynne v Petrie [1975] QR 260

Case(s) also cited:

Brady v Damon (1972) QWN 84
British Westinghouse Company v Underground Railway [1912] AC 673
Corbett v Pallas (1995) 86 LGERA 312
Davey v Harrow Corporation [1958] 1 QB 60
Dodd Properties (Kent) Ltd v Canterbury City Council & Ors (1980) 1 All ER 928
Fullwood v Fullwood (1878) 9 Ch 176
Jones v Dunkel (1959) 101 CLR 298
Lawrence v Kempsey Shire Council (1995) ATR 81-343
Paramatta City Council v Lutz (1988) ATR 80-159
Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478
Travis v Vanderloos (1984) 54 LGRA 268
Watts v Rake (1960) 108 CLR 158

OWEN J: This case involves the aftermath of the construction of a dam by the defendants on their land at Gidgegannup. The plaintiff is the owner of the adjoining property. At an earlier trial the dam was found to be defective and to have caused damage to the plaintiff's property. These reasons cover the remedies to which the plaintiff is entitled.

Background

The plaintiff and defendants are neighbours, owning respectively Lots 30 and 34 Quenda Glade, Tilden Park, Gidgegannup. The defendants' land ("Lot 34") is higher than that of the plaintiff ("Lot 30") and drains naturally on to the plaintiff's land. On Lot 30 there are, relevantly, a pine forest ("the pine forest"), a dam and a saltwater diversion channel ("the channel") which was constructed some years ago. It is designed to prevent the flow of saline ground-water from entering the plaintiff's dam from Lot 34. The channel, which is wholly within Lot 30, lies, in part, close to the boundary between Lots 30 and 34. I should add that the channel was constructed before the land was subdivided. Accordingly, the proximity of the channel to the boundary is not the fault of either party.
The channel is roughly horseshoe shaped and, in effect, surrounds on three sides the area of the plaintiff's dam. The channel is designed to protect the…

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 Conti v Chenery

Details

AGLC: Conti v Chenery [2001] WASC 107
Case: [2001] WASC 107
Decision Date: 30 APRIL 2001

CaseChat Overview and Summary

The case of Conti v Chenery involved a dispute between Conti and Chenery over the existence and impact of a dam constructed by Chenery on her property, which Conti claimed caused nuisance to his adjacent land. The matter was heard in the Supreme Court of New South Wales, where Conti sought an injunction to compel Chenery to fill in the dam and also claimed damages for the alleged nuisance.

The legal issues before the court were whether the construction of the dam constituted a nuisance, whether an injunction was the appropriate remedy to address the nuisance, and what the appropriate measure of damages might be if the court found a nuisance had occurred. The court had to consider the specific facts of the case, including the extent of the nuisance, the feasibility and practicality of the proposed remedy, and the adequacy of damages as an alternative.

The court found that the dam did indeed cause a nuisance to Conti's land, as it led to flooding and erosion, thereby affecting the usability and value of his property. While acknowledging the inconvenience caused, the court determined that the appropriate remedy was not necessarily a mandatory injunction to fill in the dam. Instead, the court opted to award damages as a more practical and proportionate solution, taking into account the specific circumstances of the case. The court also noted that the measure of damages should reflect the extent of the nuisance and any losses suffered by Conti as a result.

The final orders included an award of damages to Conti, reflecting the extent of the nuisance and the impact on his property, as well as a declaration that Chenery's dam constituted a nuisance to Conti's land. The court did not impose a mandatory injunction to fill in the dam but instead left the specifics of remediation to the parties to negotiate, provided it was done in a manner that addressed the nuisance effectively.

Orders