Enkelmann v Stewart - [2025] QCA 162

SUPREME COURT OF QUEENSLAND

CITATION:

Enkelmann v Stewart [2025] QCA 162

PARTIES:

PETER ROBERT ENKELMANN
(first appellant/first applicant)
MARGARET ANNE ENKELMANN
(second appellant/second applicant)
v
MICHAEL ALLAN STEWART
(first respondent)
ANDREA ISABEL STEWART
(second respondent)

FILE NO/S:

Appeal No 2769 of 2025
SC No 12984 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay

ORIGINATING COURT:

Supreme Court at Brisbane – [2025] QSC 77 (Williams J)

DELIVERED ON:

4 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2025

JUDGES:

Mullins P

ORDERS:

1. The application for the stay is refused.

2. The costs of the stay application be each party’s costs in the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the appellants brought a proceeding in the Trial Division in 2016 claiming damages for nuisance in respect of water the appellants claimed the respondents diverted from their adjoining property onto the appellants’ property – where the respondents counterclaimed for damages for nuisance caused by the levee constructed on the appellants’ property – where after five weeks of trial, the appellants abandoned their claim and the parties’ final submissions were limited to the respondents’ counterclaim – where judgment on the counterclaim was entered for the respondents against the appellants and the final orders included mandatory injunctions in relation to the removal of the temporary levee on the appellants’ land and the restoration of identified areas of the appellants’ land to the natural ground level and a survey report to ensure the works carried out complied with the orders – where the appellants appealed against the primary judge’s decision – where the appellants applied for a stay of the final orders pending the determination of the appeal – whether the appellants demonstrated that it was an appropriate case for a stay

Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, considered
Day v Humphrey [2017] QCA 104, cited
Enkelmann v Stewart (No 2) [2025] QSC 154, related
Kipoi Holdings’ Mauritius Ltd v Kirman (as joint and several Admins of Tiger Resources Ltd) (Subject to Deed of Co Arrangement) [No 4] [2024] WASCA 145, cited
White v Tomasel [2004] 2 Qd R 438; [2004] QCA 89, cited

COUNSEL:

N H Ferrett KC, with J P Hastie, for the appellants
G J Handran KC for the respondents

SOLICITORS:

Macpherson & Kelley Lawyers for the appellants
23LEGAL for the respondents

MULLINS P: The appellants were the first and second plaintiffs in a proceeding in the Trial Division commenced in December 2016 in which they claimed damages for nuisance or, in the alternative, damages for negligence and an injunction restraining the respondents from diverting water from their adjoining property Mikandra onto the appellants’ property Riverview. Mikandra is uphill from Riverview. The respondents brought a counterclaim in December 2022 for damages for nuisance caused by the levee constructed by the appellants on Riverview…

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] QCA 162
Case: [2025] QCA 162
Decision Date: 4 September 2025

CaseChat Overview and Summary

The case of Enkelmann v Stewart concerns a dispute between the appellants and respondents over claims of nuisance caused by the diversion of water from the respondents’ property onto the appellants’ property. The matter was initially brought before the Trial Division in 2016, where the appellants sought damages for the alleged nuisance. The respondents counterclaimed for damages related to a levee constructed by the appellants. After five weeks of trial, the appellants abandoned their claim, and the proceedings focused on the respondents’ counterclaim. Judgment was entered in favour of the respondents, with mandatory injunctions and other orders requiring the appellants to remove a temporary levee, restore certain areas to their natural ground level, and submit a survey report to ensure compliance with the orders.

The legal issue before the court was whether the appellants had demonstrated that it was appropriate to grant a stay of the final orders pending the determination of their appeal. The appellants argued that a stay was necessary to prevent substantial injustice, given the potential environmental impact of the final orders and the uncertainty surrounding the appeal's outcome. The respondents contended that the appellants had not shown sufficient grounds for a stay and that the final orders should be enforced.

The court held that the appellants had not demonstrated that a stay was appropriate. The court considered the principles governing the grant of a stay, including the likelihood of success on the appeal, the balance of convenience, and the potential for substantial injustice if the stay was not granted. The court found that the appellants had not shown a compelling case for a stay, as they had not adequately demonstrated that they would suffer substantial injustice if the final orders were enforced. Additionally, the court noted that the orders were specific and could be monitored and enforced by the court if necessary.

The court refused the appellants' application for a stay of the final orders. The costs of the stay application were awarded to each party in the appeal.

Orders

Orders of the court

1. The application for the stay is refused.

2. The costs of the stay application be each party’s costs in the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Enkelmann v Stewart [2025] QCA 162
PARTIES:	PETER ROBERT ENKELMANN (first appellant/first applicant) MARGARET ANNE ENKELMANN (second appellant/second applicant) v MICHAEL ALLAN STEWART (first respondent) ANDREA ISABEL STEWART (second respondent)
FILE NO/S:	Appeal No 2769 of 2025 SC No 12984 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay
ORIGINATING COURT:	Supreme Court at Brisbane – [2025] QSC 77 (Williams J)
DELIVERED ON:	4 September 2025
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2025
JUDGES:	Mullins P
ORDERS:	1. The application for the stay is refused. 2. The costs of the stay application be each party’s costs in the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the appellants brought a proceeding in the Trial Division in 2016 claiming damages for nuisance in respect of water the appellants claimed the respondents diverted from their adjoining property onto the appellants’ property – where the respondents counterclaimed for damages for nuisance caused by the levee constructed on the appellants’ property – where after five weeks of trial, the appellants abandoned their claim and the parties’ final submissions were limited to the respondents’ counterclaim – where judgment on the counterclaim was entered for the respondents against the appellants and the final orders included mandatory injunctions in relation to the removal of the temporary levee on the appellants’ land and the restoration of identified areas of the appellants’ land to the natural ground level and a survey report to ensure the works carried out complied with the orders – where the appellants appealed against the primary judge’s decision – where the appellants applied for a stay of the final orders pending the determination of the appeal – whether the appellants demonstrated that it was an appropriate case for a stay Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, considered Day v Humphrey [2017] QCA 104, cited Enkelmann v Stewart (No 2) [2025] QSC 154, related Kipoi Holdings’ Mauritius Ltd v Kirman (as joint and several Admins of Tiger Resources Ltd) (Subject to Deed of Co Arrangement) [No 4] [2024] WASCA 145, cited White v Tomasel [2004] 2 Qd R 438; [2004] QCA 89, cited
COUNSEL:	N H Ferrett KC, with J P Hastie, for the appellants G J Handran KC for the respondents
SOLICITORS:	Macpherson & Kelley Lawyers for the appellants 23LEGAL for the respondents