SUPREME COURT OF QUEENSLAND
CITATION: Warne v Nolan [2001] QSC 053 PARTIES: MARIA KATHLEEN WARNE
(plaintiff)
v
PATRICK NOLAN
(defendant)
PATRICK NOLAN AND CYNTHIA MARGARET NOLAN
(plaintiffs by counter-claim)
v
MARIA KATHLEEN WARNE
(defendant by counterclaim)FILE NO: 2394 of 1997 DIVISION: Trial PROCEEDING: Civil ORIGINATING COURT: Supreme Court of Queensland
DELIVERED ON: 2 March 2001 DELIVERED AT: Brisbane HEARING DATE: 4 – 7 January 2000, 26 June – 7 July 2000, 20 – 30 November 2000, 18 January 2001 JUDGE: Muir J ORDER: There be judgment on the counter-claim for the plaintiff in the action, the defendant by counter-claim. CATCHWORDS: TORTS – NUISANCE – WHAT CONSTITUTES – PRIVATE NUISANCE IN GENERAL – defendants sought relief for damage allegedly caused by levee bank – whether levee bank constituted an unlawful interference with defendants’ use and enjoyment of land – rights and obligations re free flowing surface water as between owners and occupiers of higher and lower lands
TORTS – NUISANCE – DEFENCE – GENERALY – whether defendants caused or contributed to any damage attributed to levee bank – whether defendants consented to or acquiesced in the alleged nuisance – whether person can recover for damages caused by the person’s own acts
Property Law Act 1974, s 138
Salmond on Law of Torts, 5th ed (1920),Bayliss v Lea [1961] NSWR 1002, referred to
Bell v Pitt [1956] Tas SR 161, referred to
Corbett v Pallas (1995) Aust Torts R 81-329; (1995) 86 LGERA 312, considered
Davey v Harrow Corporation [1958] 1 QB 60, referred to
Furness v Clarke (1971) 1 SASR 359, considered
Gardiner v Miller (1956) SR (NSW) 112, referred to
Gartner v Kidman (1961-2) 108 CLR 12, referred to
Goldman v Hargrave [1967] 1 AC 645; (1966) 115 CLR 458, considered
Halsbury’s Laws of England V 30 3rd ed (1962),
Hargrave v Goldman (1963) 110 CLR 40, considered
Harris v Carnegie’s Pty Ltd [1917] VLR 95, referred to
Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409, referred to
Hazelwood v Webber (1934) 52 CLR 268, referred to
Kraemer v Attorney-General (1966) TAS SR 113, referred to
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1978] 1 QB 849, considered
Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476
Munro v Northern Dairies Ltd (1955) VLR 334-5, referred to
Nobel v Harrison [1926] 2 KB 332, referred to
Oldham v Lawson (No 1) [1976] VLR 654, considered
Precision Service Centre v Banstead (1985) 3 BPR 9626 [BC 8500 959], referred to
Pwllbach Colliery Company Ltd v Woodman [1915] AC 634, referred to
Radstock Co-operative and Industrial Society v Norton‑Radstock Urban District Council [1968] Ch 605, not followed
Rex v Bell (1822) 1 LJKB (os) 42 and 39, referred to
Ross v Associated Portland Cement Manufacturers [1964] 1 WLR 768, referred to
Seddleigh-Denfield v O’Callaghan [1940] AC 880, referred to
Torette House Pty Ltd v Berkman (1940) 62…
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- AGLC
- Warne v Nolan [2001] QSC 53
- Case
- [2001] QSC 53
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the defendants had caused or contributed to the damage attributed to the levee bank and whether the defendants had consented to or acquiesced in the alleged nuisance. The court also had to determine whether a person could recover damages for issues arising from their own actions. The court analysed the principles of private nuisance, particularly in relation to surface water and the rights of landowners, and considered whether the defendants' actions constituted an unlawful interference with the plaintiffs' land.
The court found that the defendants had not caused or contributed to the damage attributed to the levee bank. It was determined that the defendants had not consented to or acquiesced in the alleged nuisance. The court ruled that the defendants could not recover for damages caused by their own acts. Based on this reasoning, the court concluded that the levee bank did not constitute an unlawful interference with the defendants' use and enjoyment of their land.
The court ordered that there be judgment on the counter-claim for the plaintiff in the action, the defendant by counter-claim.
Orders
Orders of the court
There be judgment on the counter-claim for the plaintiff in the action, the defendant by counter-claim.
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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