Enkelmann v Stewart (No. 2)

[2025] QSC 154

SUPREME COURT OF QUEENSLAND

CITATION:	Enkelmann & Ors v Stewart & Anor (No. 2) [2025] QSC 154
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	Supreme Court at Brisbane
COURT:
DELIVERED ON:	27 June 2025
DELIVERED AT:	Brisbane
HEARING	24 and 25 June 2025
DATES:
JUDGE:	Williams J
ORDER:	Order as per the Annexure to these reasons.
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – MANDATORY INJUNCTIONS – TO RESTORE THINGS TO FORMER CONDITION – where the first and second
plaintiffs owned a farm which neighboured the farm of the
defendants – where it was found that works done by the
plaintiffs blocked the natural flow of water and caused damage
to the defendants’ property – where nuisance was established
– where the defendants sought a mandatory injunction that the
land be restored to natural ground level – where the timing, scope, and process for the remedial works were in dispute –
whether the scope of remedial works should be confined to
specific identifiable works or a general ‘Area of Interest’ –
whether the order should specify where the soil removed be
placed – whether the order should specify that the plaintiffs
were deemed to have complied with the orders through the service of a survey report
COUNSEL:	N Ferrett KC and J Hastie for the first, second and third plaintiffs
G Handran KC and M Jones KC for the first and second defendants
SOLICITORS:	Macpherson Kelley for the first, second and third plaintiffs
23 Legal for the first and second defendants

1. On 17 April 2025, I published reasons in respect of the claim and counterclaim (Reasons).[1] The final orders and costs remained outstanding, and directions were made for submissions and any further supporting material to be filed.

   [1]            Enkelmann v Stewart [2025] QSC 77.

2. The defined terms in the Reasons are used in these reasons, unless stated to the contrary.

3. These reasons deal with the form of the final orders, including the mandatory injunction sought by the defendants in respect of the counterclaim.

4. Costs of the plaintiffs’ claim, the defendants’ counterclaim, and the dispute as to the

   final form of orders have been reserved and will be dealt with in separate reasons.

5. The parties agree that the Court should make final orders that:

(a)	the plaintiffs’ claim be dismissed; and
(b)	judgment be entered for the defendants against the first plaintiff and the second

plaintiff on the defendants’ counterclaim.

1. As reflected in [24] of the Reasons, in respect of the counterclaim the defendants also seek relief by way of a mandatory injunction that the first and second plaintiffs remove the Temporary Levee (including any alterations by way of the further works done in 2023) and to reinstate the Area of Interest[2] to the levels represented by the 2012 LiDAR as represented in the Fifth Markar…