Enkelmann v Stewart (No. 2)
[2025] QSC 154
•27 June 2025
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 reportCOUNSEL: N Ferrett KC and J Hastie for the first, second and third
plaintiffsG 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
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.
The defined terms in the Reasons are used in these reasons, unless stated to the contrary.
These reasons deal with the form of the final orders, including the mandatory injunction sought by the defendants in respect of the counterclaim.
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.
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.
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 Report.[3]
[2] As identified in the Fifth Markar Report: DEF.998.001.0001. See also definition and Schedule B in the Annexure to these Reasons.
[3] DEF.998.001.0001.
It is not contentious between the parties that the 2012 LiDAR contours are the appropriate survey data set to be used to determine the levels to be reinstated on Riverview.
However, the parties in their written submissions did not agree on a number of issues, including as to the following:
(a) The timing of the remedial works. (b) The scope of the remedial works, including: (i) Whether it includes restoration of the “Below Ground Drain” to “Natural Ground Level”.
(ii) What is the “Natural Ground Level”, in particular whether it includes an adjustment in respect of the “Dozer Spoil” pile.[4]
(iii) Whether the wider area of the Area of Interest needs to be restored to the
“Natural Ground Level”.
(iv) Whether the order should specify what is to be done with the soil that is removed pursuant to the order.
[4] This was present in the 2012 LiDAR survey data but could be classified as an anomaly from the apparent natural ground level. See also definition and Schedule B in the Annexure to these Reasons.
(c) The process for a survey to be undertaken to verify compliance with the order.
The defendants also initially sought additional factual findings in respect of the scope of the floodplain.
A number of draft versions of the form of judgment have been prepared over time and considered by the parties and the Court. As at the conclusion of the hearing on 25 June 2025 the draft form of judgment was largely agreed with only two remaining areas of dispute.
The relevant versions of the draft form of judgment are as follows:
(a) Marked for Identification (MFI) D: Plaintiffs’ draft form of judgment dated 29 April 2025.
(b) MFI E: Defendants’ draft form of judgment as at the date of the defendants’ submissions on final relief, 30 May 2025.
(c) MFI F: Plaintiffs’ revised draft form of judgment as at 24 June 2025. (d) MFI G: Court’s draft form of judgment for discussion at the hearing on 24 June 2025.
(e) MFI H: Defendants’ revised draft form of judgment, with mark-up on MFI G. Agreed by the plaintiffs, subject to the opposition to [3(d)] and the dates.
(f) MFI I: Plaintiffs’ further revised draft form of judgment, with revised [6(f)(ii)] and dates, subject to the opposition to [3(d)].
(g) MFI J: Defendants’ further revised draft form of judgment, with revised [6(f)] and dates.
The ultimate position of the parties is that there is agreement on the draft form of judgment in MFI J apart from [3(d)] and [6(f)]. It is necessary to more broadly consider the issues and the orders sought, and in particular to reach a decision in respect of the appropriate form of the order in respect of the issues in dispute in [3(d)] and [6(f)].
Timing
In respect of the timing of the orders, the Fifth Affidavit of the first plaintiff sworn 9 May 2025 deposes to the steps involved and the anticipated timing. The first plaintiff identifies that the steps can be commenced on or about 7 July 2025 when the current cotton harvest is anticipated to be completed.
The plaintiffs submit that it is “impracticable” to order the removal of the Temporary
Levee by any date earlier than mid-July. The estimate of time for completion of the necessary works is subject to wet weather which may delay the identified steps.
The defendants contend that “[g]iven the passing of time, conduct of the works by mid-July would be reasonable”.
Given the order is a mandatory injunction, it is reasonable to build in some contingency to allow for any wet weather delays.
The parties have agreed, as reflected in [3] of MFI I and MFI J, that the remedial
works are to be undertaken by “no later than 18 August 2025”. The agreement on this
date was reached after an opportunity was provided for the plaintiffs to confirm a realistic date for the remedial works to be completed.[5][5] After the hearing concluded on 24 June 2025 and before it resumed at 11 am on 25 June 2025.
Accordingly, I am satisfied that in all of the circumstances it is reasonable to order that the remedial works be completed by no later than 18 August 2025.
Does the “Below Ground Drain” also need to be restored to “Natural Ground
Level”?
The defendants contend at [3(b)] that the form of judgment should include that the
first plaintiff and the second plaintiff “restore the Below-Ground Drain to Natural
Ground Level”.[6]
[6] At [3(b)] of MFI J. This is a variation of what was in the earlier versions proposed by the defendants.
The plaintiffs agree with the inclusion of [3(b)] in the scope of the remedial works, as reflected in MFI I.
Accordingly, I am satisfied that including [3(b)] in the scope of the remedial work is appropriate.
Should the “Natural Ground Level” include an adjustment for the “Dozer Spoil”?
The defendants also proposed that the “Dozer Spoil” present in the 2012 LiDAR be
specifically addressed in the scope of the remedial works by including a definition, identifying its specific location in Schedule C, and providing for it to be an adjustment
to the 2012 LiDAR in the definition of “Natural Ground Level”.[7]
[7] See definition and Schedule C in MFI J.
The defendants contend that the origins of the “Dozer Spoil” are uncontroversial and
refer to the following background:
(a)
The plaintiffs deposited a pile of silt and other soil onto Block 9 on Riverview with a bulldozer as part of the cleanup after the 2011 Flood Event,[8] being the
[8] First affidavit of Brett Enkelmann PLF.139.001.0001_0032, [124].
“Dozer Spoil”.
(b) The “Dozer Spoil” was present at the time of the 2012 LiDAR. (c) The “Dozer Spoil” was not part of the natural ground level of Riverview. (d) For the purposes of his modelling for the proceeding, Mr Giles removed the “Dozer Spoil” from the “pre-works conditions” on instructions from the
plaintiffs.[9]
[9] DEF.014.001.0004_0188, [506] – [507].
(e) This was also adopted by Dr Markar in his “pre-works conditions” modelling.[10] (f) A photograph taken on 16 January 2011 (after the 2011 Flood Event but before the “Dozer Spoil” was deposited) shows ground level which is flat and level
with the surrounding area.[11]
[10] DEF.014.001.0004 _0188 to _0189, [512], [515] and [547].
[11] DEF.001.004.0359.
In these circumstances, the defendants submit that the “Dozer Spoil” does not form
part of the natural ground level of Riverview and the order should not permit the
plaintiffs to reinstate the area to include an earthen mound to replicate the “Dozer
Spoil”.
Given the “Dozer Spoil” did not form a part of the natural contours of Riverview
before December 2010 and is a deviation from the natural ground level, the
defendants submit that the reinstatement work should exclude the “Dozer Spoil”
being reinstated. Otherwise, to do so runs the risk of itself being an interference with
Mikandra or other neighbours.
The defendants have undertaken the exercise of extrapolating the “Natural Ground Level” excluding the “Dozer Spoil” and this is reflected in Schedule C. It is submitted
that so long as the relevant area is within a tolerance of +/- 0.15 (that is +/- 150 mm)
of the heights of the areas of Block 9 surrounding the area of the “Dozer Spoil”, then
the true “Natural Ground Level” will be achieved.
It is proposed that this outcome can be achieved by the inclusion of the following in the final orders:
(a) A definition: “‘Dozer Spoil’ means the area, generally marked on Schedule B, present in the 2012 LiDAR as set out in Schedule C above the Natural Ground
Level on Riverview.”
(b) A qualification to the definition of “Natural Ground Level” by reference to the 2012 LiDAR data, namely that: “save for the area of ‘Dozer Spoil’ depicted in
Schedule B which is taken as having the height AHD269 within +/-0.15 (i.e.
+/- 150mm)”.
The objective is to restore the relevant area to the natural ground level and the “Dozer Spoil” is an historical anomaly. The defendants’ proposal is a pragmatic solution to
give certainty and clarity in respect of the works to be undertaken and is most
consistent with the objective of removing the nuisance.
The plaintiffs now agree with the inclusion of the definition of “Dozer Spoil” and the
qualification included in the definition of “Natural Ground Level” for the purpose of
the scope of the remedial works, as reflected in MFI I.
Accordingly, I am satisfied that it is appropriate to include the definition of “Dozer Spoil” and the “save for” qualification in the definition of “Natural Ground Level”
for the purpose of the scope of the remedial works, as reflected in MFI J.
Should the order require that the contours within the Area of Interest be restored
to the “Natural Ground Level”?
The defendants also contend that the final judgment should provide that the first
plaintiff and the second plaintiff “restore the contours within the Area of Interest to
the Natural Ground Level” as provided for in [3(d)].[12]
[12] MFI J.
This is opposed by the plaintiffs.
The defendants contend that the restoration should apply to the whole Area of Interest and not be limited to:
(a) “reinstate that part of Riverview on which the Temporary Levee stands” as the plaintiffs’ previously proposed;[13] or
[13] See [7] of the plaintiffs’ draft forms of judgment: MFI D and MFI F.
(b) be limited to: [14] See [3(a)] and [3(b)] of the plaintiffs’ final draft form of judgment MFI I, however noting that [3(d)]
(i) “remove the Temporary Levee”; and (ii) “restore the Below-Ground Drain to Natural Ground Level”.[14]
In their written submissions the plaintiffs did not engage with this contention despite
the definition of “Area of Interest” being included in the plaintiff’s proposed form of
judgment.[15]
[15] Plaintiffs’ proposed form of judgment MFI D and MFI F. See also MFI I.
Given the specific relief sought by the defendants, and the fact that there are aspects of the works which are wider than just removing the Temporary Levee, there is a need for certainty in relation to this issue.
In respect of this issue, the defendants contend that:
(a)
As reflected in the Reasons, the defendants were wholly successful on the counterclaim.
(b) The counterclaim sought relief in respect of the whole of the Area of Interest. (c)
The Court accepted the evidence of Dr Markar and Mr Byrom. Relevantly, this evidence included the Fifth Markar Report[16] and the Fourth Byrom Report.[17] The Joint Survey Report[18] does not identify any areas of difference as to the levels on Riverview.
(d) In particular: [16] DEF.998.001.0001.
[17] DEF.998.001.0073.
[18] DEF.997.001.0001.
(i) The Fifth Markar Report at [22] shows the Area of Interest by reference to the cross-sections.
(ii) Figures 3-1 to 3-13 of the Fifth Markar Report show the changes to the Temporary Levee in the Area of Interest.
(iii) The Joint Survey Report compares the 2012 LiDAR and the 2024 Survey from the Fourth Byrom Report, showing the changes made in 2023.
The defendants submit that their proposed form of words[19] provides certainty and
gives effect to the Reasons. That is, it gives effect to the Reasons by “removing once
and for all the only levee erected on the floodplain on its passage through Mikandra and Riverview”.[20][19] Being the combination of the definition of “Area of Interest” and the inclusion of [3(d)] “restore the
[20] Defendants Relief Submissions dated 30 May 2025 at [23].
Consistent with the Reasons, the remedial works should apply to the whole Area of Interest to effectively remove the nuisance and should not be limited as the plaintiffs
purpose. The objective is to in effect “back out” the works that were done on
Riverview to alter the natural level in the Area of Interest, which includes what is understood as the Temporary Levee but is not limited to that. This is also consistent
with the inclusion of [3(b)] to restore the “Below-Ground Drain” to “Natural Ground
Level”.
Accordingly, I am satisfied that the final orders should include the definition of Area of Interest and the order in [3(d)] that the first plaintiff and the second plaintiff restore
the contours within the Area of Interest to the “Natural Ground Level” as part of the
remedial works.
Should additional findings be made in respect of the scope of the floodplain?
The defendants contended:
“In addition to what already appears at paragraphs [66] and [67] of the Reasons,
there should be findings as to the extent of the floodplain which will then identify the parts of Riverview which should not be built up. It would be inappropriate, for example, for the [p]laintiffs to be able to remove the Temporary Levee but deposit the soil just north of the Area of Interest in the
form of an earthen wall.”[21]
[21] Defendants’ Relief Submissions dated 30 May 2025 at [32].
In particular, the defendants pointed to and relied on the following evidence in respect of this submission:
(a)
The Third Markar Report[22] in respect of the floodplain and the flow of water across Riverview, including the Area of Interest, during flood events.
(b) The First Affidavit of the first defendant sworn 3 March 2023 at [32].[23] (c) The Affidavit of Ross Sydney Yesberg sworn 4 March 2024 at [27] to [29].[24] (d)
The GHD Report[25] obtained by the plaintiffs prior to the commencement of the proceeding and which is consistent with the Third Markar Report.
[22] DEF.014.001.0004_0054 to _0082 and Appendix B at _0178 to _0268.
[23] DEF.014.001.0013_0006 to _0007.
[24] DEF.020.001.0023_0005.
[25] DEF.004.001.0655.
At the hearing on 24 June 2025 and in the context of the revised draft form of judgment MFI H, the defendants accepted that given the findings in the Reasons there
was no need for the Court to make further factual findings. Further, the defendants’
concerns could be addressed by the proposed revised wording in [3(c)], which is
discussed further below.
Accordingly, it is not necessary to further consider the submission in respect of further factual findings in relation to the floodplain.
Whether the order should specify what is to be done with the soil that is removed pursuant to the order?
The defendants initially sought an order that the work be carried out “in a way that
will not alter the contours of any other part of Riverview in or about the area of the
natural watercourse”.
The defendants contended:
(a) “The [p]laintiffs adduce no evidence to explain why any part of the soil from the Area of Interest should be displaced anywhere near the passage of the floodplain. The safest and most reasonable way of ensuring that no further nuisance is caused to Mikandra or any downstream neighbour is by ensuring
that the soil is deposited elsewhere.”[26]
[26] Defendants’ Relief Submissions dated 30 May 2025 at [30].
(b) There is a sufficient basis for the Court “to be astute not to leave decision as to the placement of the soil removed from the Area of Interest to the
[p]laintiffs”.[27]
(c) That “any soil removed from the Area of Interest should not be placed in the flood plain on Riverview”.[28]
[27] Defendants’ Relief Submissions dated 30 May 2025 at [32].
[28] Defendants’ Relief Submissions dated 30 May 2025 at [34].
In particular, the defendants initially contended that the soil removed from the Area of Interest could be placed on Block 3 or Block 5 on Riverview, as those two blocks
received no damage during the 2010/2011 flood “such as that they are unlikely to
cause a nuisance to Mikandra by blocking riparian flows”.[29]
[29] Defendants’ Relief Submissions dated 30 May 2025 at [35].
This submission is based on the plaintiffs’ evidence at trial, including:
(a)
In the First Affidavit of the first plaintiff, the assertion that Blocks 3 and 5 on Riverview received no damage during the 2010/2011 flood; [30] and
(b) In the First Affidavit of Brett Enkelmann, the assertion that Blocks 2, 4, 7, 8 [30] PLF.139.001.0005_0030 at [149].
and 9 on Riverview had “extreme erosion”.[31]
[31] PLF.139.001.0001_0041 to _0042 at [181] and [186].
I do not consider that it would be appropriate for the final order to identify where the soil that is removed from the Area of Interest could or should be placed, whether on Riverview or elsewhere.
By way of the issues raised in the proceeding, the plaintiffs are on notice of the potential impact of alterations to, and the building of structures on, the floodplain. In particular, the potential impact on the natural watercourse and the risk of creating a further nuisance should firmly be in contemplation.
What is readily apparent from this case is that the floodplain and the natural watercourse are susceptible to impacts from alterations and structures. The hydrological impacts of any changes should be considered before any such alterations are made or structures erected. This includes considering the impact on neighbours.
It would be prudent for the plaintiffs to seek appropriate advice and to be mindful to avoid the creation of a further nuisance in removing the nuisance found in the Reasons. As is evident from the issues in the counterclaim, this includes consideration of the risk of works altering contours on parts of Riverview, thereby impacting the area of the natural watercourse and possibly creating further concerns.
Ultimately, the defendants proposed in the draft form of judgment MFI H that the order provide some certainty as to where the soil removed from the Area of Interest should not be placed. Paragraph [3(c)] provides as follows:
“carry out the works in paragraphs (a) and (b)[32] in a way that that any soil
removed from the Area of Interest is not placed on Riverview Blocks 4, 8 or 9 or on that part of Riverview Block 7 to the west of the eastern-most border of the Area of Interest, as the Blocks are identified at Figure 1-2 of the First Markar
Report [DEF.012.001.1502_0014]”.
[32] Being “remove the Temporary Levee” and “restore the Below-Ground Drain to Natural Ground
The plaintiffs agree to [3(c)] being included.[33]
[33] See MFI I.
Given the evidence that has been accepted in the Reasons, I consider that there is an evidentiary basis for the inclusion of [3(c)]. The provision does not stipulate where the soil is to be placed but rather where it is not to be placed, as supported by the evidence at the trial and the findings in the Reasons.
What process is appropriate for a survey to be undertaken to verify compliance with the order?
The plaintiffs originally proposed a process as follows:[34]
[34] See MFI D.
(a)
The plaintiffs nominate three registered surveyors for the purpose of preparing a survey report following the remediation work being undertaken.
(b) The defendants select one of the nominated surveyors. (c)
The plaintiffs instruct the surveyor to prepare a survey report and provide any documents or data required.
(d)
Two business days before providing any instructions, documents or data to the surveyor, the plaintiffs are to provide those instructions, documents or data to the defendants.
(e) The plaintiffs serve the survey report on the defendants. (f) The plaintiffs are deemed to have complied with the order to remove the “Temporary Levee and reinstate that part of Riverview on which the
Temporary Levee stands… to Natural Ground Level” by serving a survey
report demonstrating “that no point of the Relevant Area differs from the height
of the Relevant Area as measured in the 2012 LiDAR by more than the margin
of error of the 2012 LiDAR”.
The defendants opposed this process, in particular the deeming provision.
The defendants originally proposed in MFI E an approach as follows:
(a) The plaintiffs are expected to comply with the final orders. (b) The works should be performed. (c) The defendants should be furnished with reasonable material to enable them to ascertain whether the works have been carried out in compliance with the final orders. (d) The defendants may make any application that may be necessary if the works do not appear to comply with the final orders.
This proposed approach is more consistent with the orthodox principle that the Court will not become involved in the ongoing supervision of an order.
The defendants went on to propose in MFI E a prescriptive process in light of concerns about whether the plaintiffs will comply with the final orders and the desire
to “avoid a controversy about the confirmatory survey”.[35]
[35] Defendants’ Relief Submissions dated 30 May 2025 at [37].
The defendants submitted that the following process would be appropriate:
(a)
The first plaintiff and the second plaintiff must give the defendants written notice upon completion of the remediation works.
(b)
At the expense of the first plaintiff and the second plaintiff, the parties to the counterclaim jointly appoint a suitably qualified surveyor to survey and prepare a report in compliance with the code of conduct in schedule 1C of the Uniform
Civil Procedure Rules 1999 depicting “the contours of Riverview in the Area
of Interest prevailing at the date of a survey conducted after the Remedial Works have been completed and reporting whether any point of the Area of
Interest differs from the Natural Ground Level”.
(c)
All communications with the surveyor are to be made and received jointly and each party is entitled to receive all documents and data used, considered, or adjusted in the report.
(d) The defendants must permit the surveyor, but not the plaintiffs or Brett Enkelmann, to have reasonable access to Mikandra on two business days’
notice in writing.
[36] Defendants’ proposed form of judgment MFI E at [4], [5] and [6].
(e) The first plaintiff and the second plaintiff are to file the report.[36]
Alternatively, the defendants contended that if the Court did not accept that approach and the plaintiffs were to have the carriage of the provision of instructions to the surveyor, then:
[37] Defendants’ Relief Submissions dated 30 May 2025 at [41].
(a) the defendant should be given ten business days, rather than two, to consider any instructions or data given; and (b) the order should include a mechanism for the defendants to be able to include text in the instructions to the surveyor.[37]
The defendants contended that this last provision would avoid the plaintiffs being able to reject any request by the defendants for particular information or instructions being given to the surveyor.[38]
[38] Defendants’ Relief Submissions dated 30 May 2025 at [41(b)].
It is for the first and second plaintiffs to comply with the final orders of the Court for removal of the nuisance. The appointment of a joint expert blurs the lines of accountability.
Further, the deeming provision process proposed by the plaintiffs is likely to lead to further controversy between the parties in respect of transparency and evaluating compliance with the final orders.
In all of these circumstances, the process contained in MFI G was prepared for discussion with the parties, being a hybrid of the two approaches to meet the objectives of transparency and the evaluation of compliance.
The parties were given the opportunity to consider MFI G. MFI H shows marked-up suggested changes to the hybrid process, including that a copy of the order be provided to the Agreed Surveyor and that all communications with the Agreed Surveyor must be in writing. The changes in MFI H were agreed by both parties.[39]
[39] Subject to the plaintiffs’ objection to [3(d)].
At the resumed hearing on 25 June 2025, it was agreed that this process should be
completed by “no later than 30 September 2025”. This date was nominated after an
opportunity to consider the practicalities and likely time estimates for the steps involved. The parties are in agreement as to the date.[40][40] See MFI I and MFI J.
Further, the parties are in agreement as to the dates at [6(a)] and [6(b)], being 27 June 2025 and 4 July 2025 respectively.[41] The defendants also agreed to the proposed six business days notice in [6(d)].[42]
[41] See MFI I and MFI J.
[42] See MFI H and MFI J.
One further area of disagreement emerged. Order [6(f)] of MFI H provided that “all
communications with the surveyor, their employees or agents must be in writing and
are to be provided to the Defendants”.
The plaintiffs identified a concern in respect of the approach if the Agreed Surveyor appointed under the process was on site and asked a question. Consequently, the plaintiffs proposed an amendment to [6(f)] as follows:
“all communications with the surveyor, their employees or agents which
provide instructions, documents or data, or seek opinions of any kind, must be in writing and are to be provided to the Defendants. For the avoidance of doubt, the Plaintiffs will not be in breach of this order by the Plaintiffs or their solicitors engaging in oral communication with a proposed surveyor or the Agreed Surveyor:
(i) which are of an administrative nature, such as enquiries as to availability or as to travel or access arrangement; or
(ii) which are initiated by the Agreed Surveyor.”[43]
[43] MFI I.
In response the defendants proposed an alternative solution to the concern by a revised [6(f)] as follows:
“all communications with the surveyor, their employees or agents which
provide instructions, documents or data, or seek opinions of any kind, must be in writing and are to be provided to the Defendants. For the avoidance of doubt, the Plaintiffs will not be in breach of this order by the Plaintiffs or their solicitors engaging in oral communication with a proposed surveyor or the Agreed Surveyor which are of an administrative nature, such as enquiries as to
availability or as to travel or access arrangements.”[44]
[44] MFI J.
At the hearing on 25 June 2025, Senior Counsel for the defendants also suggested some additional wording that may meet the concern about matters raised orally by the Agreed Surveyor as follows:
“all communications with the surveyor, their employees or agents which
provide instructions, documents or data, or seek opinions of any kind, must be in writing and are to be provided to the Defendants. For the avoidance of doubt, the Plaintiffs will not be in breach of this order by the Plaintiffs or their solicitors engaging in oral communication with a proposed surveyor or the Agreed Surveyor which:
(a) are of an administrative nature, such as enquiries as to availability or as to travel or access arrangements; or (b) constitute a request for information, documents or data from the Agreed Surveyor provided the response is given in writing.”[45]
(additional words in underlining and reformatting)
[45] T2-5 L42 – 44.
Given the history of this matter, I am satisfied that it is necessary for there to be a further revision to [6(f)] to reflect the possibility of an oral request from the Agreed Surveyor so there is an agreed method of response, which is consistent with the objectives of transparency and evaluating compliance with the final orders. I consider that the proposed amendment in MFI J and the additional wording proposed at the hearing on 25 June 2025 best meets those objectives.
Accordingly, I am satisfied that it is appropriate for the final orders to include the procedure contained in [6] of MFI J with the additional amendment to [6(f)] as identified by the defendants.
Orders
Given that the final judgment includes a mandatory injunction, it is also appropriate to include that each party has liberty to apply.
The parties proposed an order that:
“The costs of the Plaintiffs’ Claim, the Defendants’ Counterclaim, the application by
the Defendants for indemnity costs and the dispute as to the form of final orders are
reserved.”[46]
[46] MFI I and MFI J.
As indicated at the outset of these reasons, submission in respect of the issues of the costs of the claim, the counterclaim and the dispute as to the form of final orders have been heard and reserved and will be dealt with in separate reasons and orders. Accordingly, there is no need for these orders to deal with costs.
For the reasons outlined above, the final orders are in the form of MFI J with the additional wording included in [6(f)] and the deletion of [8] in respect of costs.
Accordingly, the final orders are as set out in the Annexure to these reasons.
ANNEXURE
SUPREME COURT OF QUEENSLAND
REGISTRY: Brisbane NUMBER: BS12984/16
| FIRST PLAINTIFF: | PETER ROBERT ENKELMANN |
| AND | |
| SECOND PLAINTIFF: | MARGARET ANNE ENKELMANN |
| AND | |
| THIRD PLAINTIFF: | PREEMA PARTNERSHIP |
| AND | |
| FIRST DEFENDANT: | MICHAEL ALLAN STEWART |
| AND | |
| SECOND DEFENDANT: | ANDREA ISABEL STEWART |
| JUDGMENT | |
| In this Judgment: | |
| A. | “Riverview” means the real property more particularly described as Lots 1, 3, 4 and |
6 on RP 27650, Lots 69 and 72 (Lot 72) on RP 27647;
| B. | “Mikandra” means the property owned by the Defendants and situated adjacent to |
Riverview;
| C. | “Area of Interest” means the yellow banded polygon situated in or about Lot 72 |
and depicted in Schedule B;
| D. | “Temporary Levee” means the earthen embankment: | |||||||
| ||||||||
| E. | “Below Ground Drain” means the below-ground channel: | |||||||
|
and towards Hansen’s Gully.
| F. | “Dozer Spoil” means the area, generally marked on Schedule B, present in the 2012 |
LiDAR as set out in Schedule C above the Natural Ground Level on Riverview.
| G. | “Natural Ground Level” means the contours prevailing on Riverview before |
| construction of the Temporary Levee started, as represented by the Light Detection And Ranging (LiDAR) meta data captured in or about August 2012 for the Department of Environment and Resource Management and contained in one or more of the data files mentioned in the project report at Annexure G to the Survey Report prepared by Alistair Byrom and dated 6 August 2020 [starting at |
DEF.012.001.1504_0052] , save for the area of the “Dozer Spoil” depicted in
Schedule B which is to be taken as having the height AHD269 within +/- 0.15 (i.e.
+/-150mm).
THE ORDER OF THE COURT IS THAT:
Plaintiffs’ claim
The Plaintiffs’ claim be dismissed.
Defendants’ counterclaim
2 Judgment be entered for the Defendants against the First Plaintiff and Second
Plaintiff on the Defendants’ Amended Counterclaim filed on 19 March 2024.
3 By no later than 18 August 2025, the First Plaintiff and Second Plaintiff, whether by themselves, their employees or agents or otherwise howsoever:
(a) remove the Temporary Levee; and (b) restore the Below-Ground Drain to Natural Ground Level; and (c)
carry out the works in paragraphs (a) and (b) in a way that that any soil removed from the Area of Interest is not placed on Riverview Blocks 4, 8 or 9 or on that part of Riverview Block 7 to the west of the eastern-most border of the Area of Interest, as the Blocks are identified at Figure 1-2 of the First Markar Report [DEF.012.001.1502_0014]; and
(d)
restore the contours within the Area of Interest to the Natural Ground Level.
(the Remedial Works)
4 The First Plaintiff and Second Plaintiff must give the Defendants written notice upon completion of the Remedial Works.
5 By no later than 30 September 2025:
(a) at the expense of the First Plaintiff and Second Plaintiff, First Plaintiff and Second Plaintiff appoint the Agreed Surveyor to:
(i) survey; and (ii) prepare a report in compliance with the code of conduct (in Schedule 1C of the Uniform Civil Procedure Rules 1999) depicting, the contours of Riverview in the Area of Interest prevailing at the date of a survey conducted after the Remedial Works have been completed and reporting whether any point of the Area of Interest differs from the Natural Ground Level (the Survey Report); and
(b) the First Plaintiff and Second Plaintiff are to file and serve the Survey Report. 6 For the purposes of the survey and the Survey Report:
(a) by 4pm on 27 June 2025, the First Plaintiff and the Second Plaintiff are to nominate three suitably qualified registered surveyors for the purpose of undertaking the survey and preparing the Survey Report. (b) by 4pm on 4 July 2025, the Defendants are to select one of the surveyors nominated (Agreed Surveyor). (c) the First Plaintiff and the Second Plaintiff are to:
(i) provide the Agreed Surveyor with a copy of this order; (ii) instruct the Agreed Surveyor to undertake any work necessary for the survey and to prepare the Survey Report; and (iii) provide the agreed Surveyor with any documents or data which he or she requires. (d) at least six business days before providing any instructions, documents or data to the Agreed Surveyor, the First Plaintiff and the Second Plaintiff are to provide the instructions, document or data to the Defendants. (e) the First Plaintiff and the Second Plaintiff are to include in the instructions and/or the documents or data provided to the Agreed Surveyor any specified instructions, information, documents and/or data reasonably requested by the Defendants. (f) all communications with the surveyor, their employees or agents which provide instructions, documents or data, or seek opinions of any kind, must be in writing and are to be provided to the Defendants. For the avoidance of doubt, the Plaintiffs will not be in breach of this order by the Plaintiffs or their solicitors engaging in oral communication with a proposed surveyor or the Agreed Surveyor which:
(i) are of an administrative nature, such as enquiries as to availability or as to travel or access arrangements; or (ii) constitute a request for information, documents or data from the Agreed Surveyor provided the response is given in writing. (g) the Defendants are entitled to receive all documents and data used, considered or adjusted in preparation of the Survey Report. (h) the Defendants must permit the Agreed Surveyor and any persons authorised by her or him, but not the Plaintiffs or Brett Enkelmann, to have reasonable access to Mikandra on two business days’ notice in writing.
7 Each party has liberty to apply.
| Figure 3-1 – Area of interest and cross section locations and extents | ||||||
|
(START) (AHD) (PEAK) (AHD) (END) (AHD)
| 180.000. | 16 | 269.005 | 16 | 269.005 | 16 | 269.005 |
| 200.000 | 14 | 269.223 | 16 | 269.325 | 22 | 269.019 |
| 220.000 | 14 | 269.093 | 16 | 269.412 | 26 | 269.038 |
| 240.000 | 14 | 269.080 | 18 | 269.363 | 24 | 269.020 |
| 254.305 | 14 | 269.194 | 18 | 269.653 | 24 | 269.005 |
| 260.000 | 14 | 269.173 | 18 | 269.691 | 24 | 269.056 |
| 280.000 | 16 | 269.227 | 20 | 269.456 | 26 | 269.018 |
| 300.000 | 12 | 269.198 | 16 | 269.521 | 26 | 269.007 |
| 320.000 | 12 | 269.170 | 14 | 269.329 | 24 | 269.012 |
| 340.000 | 12 | 269.139 | 14 | 269.298 | 20 | 269.038 |
| 360.000 | 10 | 269.098 | 12 | 269.276 | 16 | 269.060 |
| 380.000 | 10 | 269.085 | 12 | 269.225 | 14 | 269.072 |
| 396.721 | 12 | 269.108 | 14 | 269.149 | 16 | 269.010 |
| 400.000 | 12 | 269.090 | 14 | 269.128 | 16 | 269.026 |
| 420.000 | 14 | 269.164 | 14 | 269.164 | 18 | 269.036 |
| 440.000 | 14 | 269.046 | 14 | 269.046 | 16 | 269.045 |
| 460.000 | 16 | 269.025 | 16 | 269.025 | 16 | 269.025 |
| 480.000 | 14 | 269.078 | 14 | 269.078 | 14 | 269.078 |
is opposed.
contours within the Area of Interest to the Natural Ground Level”.
Level”.
2