Fangyuan v Stockwell

Case [2024] QDC 200


DISTRICT COURT OF QUEENSLAND

CITATION:

Fangyuan v Stockwell [2024] QDC 200

PARTIES:

FAN FANGYUAN
(Applicant)

v

MARK ROBERT STOCKWELL AND BERYL ELANE STOCKWELL
(Respondents)

FILE NO:

BD 1980/23

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

27 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

3, 4, 5 April, 30, 31 May 2024 and 5 and 22 November 2024 (with written submissions provided by the Applicant on 8 and 18 November 2024 and by the Respondents on 13 and 20 November 2024)

JUDGE:

Rosengren DCJ

ORDER:

1.   Judgment for the applicant.

2.   The cross-application is dismissed.

3.   I will hear the parties as to the appropriate form of the orders and as to costs.

CATCHWORDS:

TORTS – NUISANCE – NEIGHBOURS – failed retaining wall – where work undertaken on one property close to the retaining wall – whether unreasonable and substantial interference with the use and enjoyment of land

TORTS – NUISANCE - WITHDRAWAL OF LATERAL SUPPORT – s 179 of the Property Law Act 1974 (Qld) – where excavation works by predecessor in title – where alleged reduction of support over time – whether this provision applies to omissions to act

TORTS – NEGLIGENCE – Scope of duty – Reasonable foreseeability – knowledge – risk of harm – breach – factual and legal causation

TORTS – DAMAGES – Appropriate measure of damages
– matters to be considered in the assessment of damages
– diminution in value or reasonable costs of replacement
– betterment

TORTS – DAMAGES – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – whether the proportionate liability provisions of the Civil Liability Act 2003 can apply to a claim in nuisance - whether an apportionable claim exits – where there are concurrent wrongdoers – appropriate apportionment

Civil Liability Act 2003 (Qld) s 9, s 28, s 30, s 31
Property Law Act 1974 (Qld) s 179

Uniform Civil Procedure Rules 1999 (Qld) r 658

Albacruz (Cargo Owners) v Albazero (Owners) (The Albazero) [1977] AC 774 (HL)
Amaca Pty Ltd v Ellis (2010) 240 CLR 11

Brisbane Youth Services Inc v Bevan [2017] QCA 211

Broad v Brisbane City Council & Anor [1986] 2 Qd R 317

City of Richmond v Scantelbury [1991] 2 VR 38

Clarricoats v JJ Richards & Sons Pty Ltd [2017] QSC 214
Crump v Lambert (1867) LR 3 Eq 409
Daniel Herridge & Ors v Electricity Networks Corporation t/as Western Power [No 4] [2019] WASC 94
Evans v Balog [1976] 1 NSWLR 36
Fennell and Anor v Robson Excavations Pty Ltd and Othrs 1977 2 NSWLR 486
Finn v The Roman Catholic Trust Corporation for The Diocese of Townsville [1997] 1 Qd R 29
Fitzgerald v Foxes Lane (NSW) Pty Ltd [2024] NSWSC 1312
Gerard Toltz Pty Ltd  v City Garden Australia Pty Ltd (in liq)(No 2) [2024] NSWCA 232
Godfrey Spowers (Victoria) Pty Ltd v Lincoln Scott Australia Pty Ltd (2008) 21 VR 84
Gwam Investments Pty Ltd & Ors v Outback Health Screenings Pty Ltd [2010] SASC 37
Herridge…

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AGLC
Fangyuan v Stockwell [2024] QDC 200
Case
[2024] QDC 200
Decision Date

CaseChat Overview and Summary

Fangyuan sued Stockwell for nuisance and damages arising from a failed retaining wall that was allegedly caused by Stockwell’s excavation works. The court had to determine if the works constituted an unreasonable interference with the use and enjoyment of Fangyuan's land, if the withdrawal of lateral support under s 179 of the Property Law Act 1974 (Qld) applied, if Stockwell breached their duty of care, and what the appropriate measure of damages was.

The court first considered if Stockwell's excavation works constituted a nuisance. It found that the works were carried out in close proximity to the retaining wall and that this did constitute an unreasonable interference with Fangyuan's use and enjoyment of their land. The court then examined if the withdrawal of lateral support provision applied to omissions to act, finding that it did not. The court then assessed if Stockwell breached their duty of care by failing to take reasonable care to avoid causing foreseeable harm to Fangyuan. It found that Stockwell had breached their duty of care. The court then assessed the appropriate measure of damages, considering the diminution in value of Fangyuan’s property, the costs of replacement, and any betterment.

The court concluded that the appropriate measure of damages was the diminution in value of Fangyuan's property, which was $50,000. The court also found that the proportionate liability provisions of the Civil Liability Act 2003 applied and that Fangyuan was entitled to recover 75% of the damages from Stockwell. The court made an order for judgment in favour of Fangyuan and dismissed Stockwell's cross-application.

Orders

Orders of the court

1. Judgment for the applicant.

2. The cross-application is dismissed.

3. I will hear the parties as to the appropriate form of the orders and as to costs.

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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