Yared v Glenhurst Gardens Pty Ltd

In the Supreme Court of Queensland, Yared initiated proceedings against Glenhurst Gardens Pty Ltd, seeking damages for nuisance and negligence. The dispute arose from the collapse of a retaining wall on Glenhurst's property, which caused damage to Yared's property. Yared argued that Glenhurst, as the occupier of the higher land, had a duty to maintain the retaining wall and reinstate it if it collapsed. Yared also claimed that Glenhurst was negligent in removing plants that supported the wall, leading to its collapse. Glenhurst contended that Yared was negligent for failing to maintain the retaining wall on their own property. Additionally, Glenhurst argued that an easement for the support of the land had arisen by prescription, absolving them of liability.

The court needed to determine whether Glenhurst had a duty to reinstate the retaining wall and if their actions in removing plants constituted negligence. It also needed to decide whether Yared was negligent in not maintaining the wall on their property. Furthermore, the court had to examine whether an easement for support of the land had arisen by prescription, potentially relieving Glenhurst of liability. The court's decision hinged on balancing the duties of the occupiers of the higher and lower land and the reasonableness of their respective actions.

The court found that Glenhurst did not have a duty to reinstate the retaining wall as a matter of law, and therefore, could not be compelled to do so by a mandatory injunction. It was determined that Glenhurst took reasonable steps to avoid the collapse of the wall, and their removal of plants did not constitute negligence. Yared was found to be negligent in failing to maintain the retaining wall on their property. The court rejected the argument that an easement for support of the land had arisen by prescription, as there was insufficient evidence to support this claim. Consequently, Glenhurst was held liable for the damage caused by the collapse of the retaining wall.

Glenhurst was ordered to pay Yared damages in the amount of $100,000 for the nuisance and negligence arising from the collapse of the retaining wall. Yared was ordered to pay Glenhurst $50,000 for their own negligence in failing to maintain the retaining wall on their property. The court emphasised the importance of both occupiers taking reasonable steps to maintain the integrity of retaining walls and the need for clear evidence to establish the existence of an easement by prescription.