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 Act1974 (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 Act2003 can apply to a claim in nuisance - whether an apportionable claim exits – where there are concurrent wrongdoers – appropriate apportionment
[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.
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Details
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.