Enkelmann v Stewart - [2025] QSC 77

SUPREME COURT OF QUEENSLAND

CITATION:

Enkelmann & Ors v Stewart & Anor [2025] QSC 77

PARTIES:

PETER ROBERT ENKELMANN

(first plaintiff)

MARGARET ANNE ENKELMANN

(second plaintiff)

PREEMA PARTNERSHIP

(third plaintiff)

v

MICHAEL ALLAN STEWART

(first defendant)

ANDREA ISABEL STEWART

(second defendant)

FILE NO/S:

BS No 12984 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 April 2025

DELIVERED AT:

Brisbane

HEARING DATES:

8-26 May 2023
18-28 March 2024
2, 5 and 6 September 2024

JUDGE:

Williams J

ORDER:

1. I will hear further from the parties as to how the injunction should be framed, including any necessary reference to the 2012 LiDAR.

2. I will hear further from the parties as to any other appropriate orders in light of these reasons.

CATCHWORDS:

TORTS – NUISANCE – PRIVATE NUISANCE – PARTICULAR CASES – WATER RELATED – where the first and second plaintiffs owned a farm which neighboured the farm of the defendants – where it was claimed that alleged works on the defendants’ farm disrupted the flow of water onto the first and second plaintiffs’ property, causing damage – where the defendants’ counterclaimed that works done by the plaintiffs blocked the flow of water causing pooling onto the defendants’ farm, causing damage – where the plaintiffs abandoned their claim and the defendants continued their counterclaim – whether the relevant water was a natural watercourse and the defence in Gartner v Kidman was available – whether the plaintiffs’ works caused a substantial interference to the defendants’ property by blocking waterflow and increasingly the velocity of the flow of water – whether later modifications to the plaintiffs’ works changed the impacts of the works on the defendants’ property

COUNSEL:

N Ferrett KC and J Hastie for the first, second and third plaintiffs
(N Ferrett KC, D Pyle and M Daley for the first, second and third plaintiffs for the part of the hearing in 2023)

G Handran KC and M Jones for the first and second defendants

SOLICITORS:

Macpherson Kelley for the first, second and third plaintiffs
(Shine Lawyers for the first, second and third plaintiffs for the part of the hearing in 2023)

23 Legal for the first and second defendants

The first plaintiff and the second plaintiff own a property, known as “Riverview” (Riverview)[1], on which they undertake a farming business through the third plaintiff, a partnership with their son, Brett Enkelmann.
[1]Lots 1, 3, 4 and 6 on RP27650 and Lot 69 and 72 on RP27647.
The first defendant and the second defendant own the adjoining property, known as “Mikandra” (Mikandra)[2], and undertake a farming business.
[2]Lots 25, 26, 35, 36 and 47 on RP27645, as trustee under various trust investments.
The plaintiffs commenced proceedings against the defendants in 2016 which have gone through various iterations. The defendants defended the plaintiffs’ claims and made a counterclaim.
A trial was held over various dates in 2023 and 2024, with final submissions in September 2024.
At or about the time 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 Enkelmann v Stewart

Details

AGLC: Enkelmann v Stewart [2025] QSC 77
Case: [2025] QSC 77
Decision Date: 17 April 2025

CaseChat Overview and Summary

The matter before the Court involved claims of private nuisance between neighbouring farmers. The first and second plaintiffs, who owned a farm, alleged that the defendants, who owned an adjacent farm, had carried out works that disrupted the natural flow of water onto the plaintiffs’ property, causing damage. The defendants counterclaimed that the plaintiffs’ works had blocked the flow of water, causing pooling and damage to the defendants’ property. The plaintiffs abandoned their claims, and the defendants continued with their counterclaim. The central legal issues were whether the relevant water was a natural watercourse, which would invoke the defence in Gartner v Kidman, and whether the plaintiffs’ works caused a substantial interference to the defendants’ property by blocking waterflow and increasing the velocity of the flow of water. Additionally, the court needed to consider whether later modifications to the plaintiffs’ works had altered the impacts on the defendants’ property.

The court examined the nature of the water and the impact of the works on the flow of water. The court found that the water in question was not a natural watercourse, and therefore the defence in Gartner v Kidman was not available. The court also found that the plaintiffs’ works had caused a substantial interference to the defendants’ property by blocking waterflow and increasing the velocity of the flow of water. The court considered the modifications to the plaintiffs’ works but found that they did not change the impacts on the defendants’ property. The court found that the defendants were entitled to an injunction to prevent the plaintiffs from carrying out works that blocked the flow of water and caused damage to the defendants’ property.

The court will hear further submissions from the parties on the framing of the injunction, including any necessary reference to the 2012 LiDAR. The court will also hear further submissions from the parties on any other appropriate orders in light of these reasons. The court will make a final decision on the orders after considering the further submissions from the parties.

Orders

Orders of the court

1. I will hear further from the parties as to how the injunction should be framed, including any necessary reference to the 2012 LiDAR.

2. I will hear further from the parties as to any other appropriate orders in light of these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Enkelmann & Ors v Stewart & Anor [2025] QSC 77
PARTIES:	PETER ROBERT ENKELMANN (first plaintiff) MARGARET ANNE ENKELMANN (second plaintiff) PREEMA PARTNERSHIP (third plaintiff) v MICHAEL ALLAN STEWART (first defendant) ANDREA ISABEL STEWART (second defendant)
FILE NO/S:	BS No 12984 of 2016
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 April 2025
DELIVERED AT:	Brisbane
HEARING DATES:	8-26 May 2023 18-28 March 2024 2, 5 and 6 September 2024
JUDGE:	Williams J
ORDER:	1. I will hear further from the parties as to how the injunction should be framed, including any necessary reference to the 2012 LiDAR. 2. I will hear further from the parties as to any other appropriate orders in light of these reasons.
CATCHWORDS:	TORTS – NUISANCE – PRIVATE NUISANCE – PARTICULAR CASES – WATER RELATED – where the first and second plaintiffs owned a farm which neighboured the farm of the defendants – where it was claimed that alleged works on the defendants’ farm disrupted the flow of water onto the first and second plaintiffs’ property, causing damage – where the defendants’ counterclaimed that works done by the plaintiffs blocked the flow of water causing pooling onto the defendants’ farm, causing damage – where the plaintiffs abandoned their claim and the defendants continued their counterclaim – whether the relevant water was a natural watercourse and the defence in Gartner v Kidman was available – whether the plaintiffs’ works caused a substantial interference to the defendants’ property by blocking waterflow and increasingly the velocity of the flow of water – whether later modifications to the plaintiffs’ works changed the impacts of the works on the defendants’ property
COUNSEL:	N Ferrett KC and J Hastie for the first, second and third plaintiffs (N Ferrett KC, D Pyle and M Daley for the first, second and third plaintiffs for the part of the hearing in 2023) G Handran KC and M Jones for the first and second defendants
SOLICITORS:	Macpherson Kelley for the first, second and third plaintiffs (Shine Lawyers for the first, second and third plaintiffs for the part of the hearing in 2023) 23 Legal for the first and second defendants