Nuisance—Creek flowing through one piece of land on to another—Artificial drain constructed to facilitate drainage—Reversal of flow in part of creek—Interference with drain by one landowner—Drainage retarded—Damage—Cause. Tort—Action on the case—Unlawful, intentional and positive act inevitably causing loss or harm to another—Obstruction of drain retarding escape of water from land—Whether obstruction unlawful—Whether drain a "watercourse"—The Water Act of 1920 (Q.), s. 3, Sch. Pt. 1, cll. 16, 43.
Decisions
December 14. The following written judgments were delivered:- GIBBS C.J., WILSON AND BRENNAN JJ. This is an appeal from a judgment of the Full Court of the Supreme Court of Queensland affirming a judgment given by Kneipp J. in favour of the respondent, the defendant in the action. The appellants are respectively the first and third plaintiffs in the action. There were other plaintiffs, but they have ceased to be parties to the proceedings. (at p483)
2. The appellants and the respondent are the owners and occupiers of lands near Euramo, a few miles south of Tully in North Queensland. The area is low-lying and comparatively level and the annual rainfall is very high. The learned trial judge described the nature of the area as follows: "The subject lands and surrounding lands are drained by numerous watercourses but, because of the flatness of the country, any gradients are likely to be short, watersheds are likely to be formed by very low ridges, and watercourses which are quite close to each other are apt to flow in quite different directions. In addition, the whole area is from time to time completely inundated by flood waters from the Murray, or the Tulley, or both, and the flow of floodwaters when they recede can result in scouring or other intereference with the surface of the country and with the watercourses which carry water away in times of normal rainfall." (at p483)
3. There was a dispute as to some of the features of the land in its original state, and particularly as to the natural direction of the flow of water from the appellants' lands, but there is now no challenge to the findings of fact made by the learned trial judge and accepted as correct by the Full Court. We shall briefly describe the situation as it was before 1964, and in doing so shall refer to the lands in question as the lands of the parties, although at that time none of the parties had yet become owners of the lands. To the east of the lands in question was Bedford Creek, which flowed in a south-easterly direction until it joined the Murray River. Another creek, Orchard Creek, was comprised of two arms, which, after their confluence, flowed in a southerly direction to the Murray River. The eastern arm of Orchard Creek had its source some distance to the north of a swamp which was the source of Bedford Creek.…
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.
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AGLC
Elston v Dore [1982] HCA 71
Case
[1982] HCA 71
Decision Date
CaseChat Overview and Summary
The case of *Elston v Dore* concerned a dispute between the appellant, Elston, and the respondent, Dore, heard by the High Court of Australia. The central issue revolved around the interpretation and enforceability of a written agreement for the sale of a business, specifically whether the agreement constituted a valid and binding contract despite certain ambiguities and alleged deficiencies in its terms.
The High Court was required to determine whether the agreement, on its face, contained all the essential terms necessary to constitute a legally enforceable contract for the sale of a business. This involved considering whether the parties had reached a concluded agreement on all material aspects of the transaction, including the price, the subject matter, and the essential terms of payment and transfer. The court also had to assess whether any uncertainties or omissions in the document were so significant as to prevent the formation of a binding contract.
In its reasoning, the High Court applied established principles of contract law regarding the formation of agreements. The court emphasised that for a contract to be binding, there must be a clear intention to create legal relations and a sufficient degree of certainty in the terms agreed upon. The judges considered the document as a whole, looking for evidence of a consensus on all essential elements. Where terms are not explicitly stated, the court may look to infer them from the surrounding circumstances or from the conduct of the parties, provided that the essential terms are otherwise ascertainable. The court ultimately found that the agreement lacked the necessary certainty in its essential terms, rendering it unenforceable as a contract.
Consequently, the High Court dismissed the appeal, upholding the decision of the lower court that no binding contract had been formed.