Enkelmann v Stewart (No. 3)

Case [2025] QSC 206

SUPREME COURT OF QUEENSLAND

CITATION:

Enkelmann & Ors v Stewart & Anor (No. 3) [2025] QSC 206

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:

28 August 2025

DELIVERED AT:

Brisbane

HEARING DATES:

24 and 25 June 2025

JUDGE:

Williams J

ORDER:

1.    The plaintiffs pay the defendants’ costs of the plaintiffs’ claim on the indemnity basis.

2.   The first plaintiff and the second plaintiff pay the defendants’ costs of the defendants’ counterclaim on the indemnity basis.

3.   The plaintiffs pay the defendants’ cost of and incidental to the Final Orders on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the plaintiffs claimed that the defendants had built levees which disrupted the flow of water on their neighbouring farm – where it was found that the levees did not and had never existed – where the allegations brought by the plaintiffs could not be established and there was no credible, independent, or objective evidence consistent with the allegations – where there was no reasonable basis for the plaintiffs to believe that the levees existed – where the proceedings were commenced and continued in wilful disregard of facts which ought to have been known to the plaintiffs – where the plaintiffs made allegations which ought never have been made and unduly prolonged the case – whether it is appropriate to exercise the discretion to award costs on the indemnity basis

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE OR OFFER TO SETTLE OR CONSENT TO JUDGMENT PURSUANT TO RULES – GENERALLY – where the defendants were wholly successful on the counterclaim – where the defendants made a formal offer under the rules – where the plaintiffs did not accept the formal offer – where the offer was made six weeks before trial – where the offer sought judgment in favour of the defendants and for each party to bear their own costs – whether there was a sufficient element of compromise in the offer – whether the defendants obtained an order no less favourable than the offer – whether the plaintiffs had shown that another order for costs was appropriate in the circumstances

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – where the defendants were wholly successful on the counterclaim – where the defendants made a Calderbank offer – where the plaintiffs did not accept the Calderbank offer – where the offer was made six weeks before trial – where the offer was open for 21 days – where the defendants’ prospects of success were strong – where the offer included…

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Enkelmann v Stewart (No. 3) [2025] QSC 206
Case
[2025] QSC 206
Decision Date

CaseChat Overview and Summary

The case of Enkelmann v Stewart (No. 3) involves a dispute between the plaintiffs, who are neighbours, and the defendants, regarding the existence and impact of levees allegedly built by the defendants. The plaintiffs claimed that the levees disrupted the flow of water on their farm, but the court found that the levees did not and had never existed. The plaintiffs' allegations could not be established, and there was no credible evidence to support their claims. The court found that the plaintiffs commenced and continued the proceedings without reasonable basis and in wilful disregard of facts that should have been known to them. The defendants were successful on their counterclaim.

The court considered whether it was appropriate to exercise its discretion to award costs on an indemnity basis, given the plaintiffs' lack of reasonable basis for their claims and their failure to accept formal and informal offers to settle. The court found that the defendants' formal offer, made six weeks before trial, included a degree of compromise and that the defendants' prospects of success were strong. The plaintiffs' rejection of the formal and Calderbank offers was unreasonable and justified a departure from the general costs rule. The court concluded that the plaintiffs should pay the defendants' costs of the claim and counterclaim on an indemnity basis, and the defendants' costs of the Final Orders on the standard basis.

The final orders of the court were that the plaintiffs pay the defendants' costs of the plaintiffs' claim and counterclaim on the indemnity basis, and the defendants' costs of the Final Orders on the standard basis. The court's decision highlights the importance of ensuring that legal proceedings are commenced and continued with reasonable basis and in good faith, and the consequences of failing to do so.

Orders

Orders of the court

1. The plaintiffs pay the defendants’ costs of the plaintiffs’ claim on the indemnity basis.

2. The first plaintiff and the second plaintiff pay the defendants’ costs of the defendants’ counterclaim on the indemnity basis.

3. The plaintiffs pay the defendants’ cost of and incidental to the Final Orders on the standard basis.

Background

Background to the litigation

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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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