The Supreme Court has confirmed that the threshold for establishing nuisance remains high, and that factual causation will be difficult to establish when there are multiple factors contributing to an incident.
This decision affirms existing principles including that there is no positive duty to upgrade existing infrastructure, and highlights the importance of effective expert preparation.
In issue
- Whether water ingress and contamination into the basement of the Body Corporate for Ocean Pacifique (the applicant) was caused by the Body Corporate for Orchid 17 CTS 11906 (the respondent) and whether the alleged ingress amounted to nuisance or negligence.
The background
The applicant was the body corporate under a community title scheme for a building at 19 Orchid Avenue, Surfers Paradise. By way of proceedings commenced in the Supreme Court of Queensland, the applicant alleged that water and contaminated material entered its basement from the neighbouring property located at 17 Orchid Avenue, owned by the respondent. The applicant alleged that the material entered through a basement retaining wall and damaged the applicant’s property.
The applicant brought an action in both nuisance and negligence. The applicant claimed that the ingress was caused by an overflowing grease trap and blocked stormwater drains which were servicing a restaurant located on the land of the respondent. Shortly before trial, the applicant applied for leave to amend its statement of claim to plead that the respondent failed to upgrade the stormwater drainage system and grease trap to comply with relevant building standards. Such leave was refused.
The respondent denied liability and brought a counterclaim seeking payment of money owed under a release previously entered into by the parties to resolve prior issues relating to the ingress of water, as well as the reimbursement of expert report costs that were jointly obtained by the parties to investigate the initial ingress.
The decision at trial
The Court ultimately dismissed the application in nuisance and in negligence. The Court held that there was no unreasonable interference with the applicant’s land, and held that there was no breach of duty by the respondent.
Various expert reports were tendered by the parties. The Court accepted expert evidence that the applicant’s basement retaining wall was designed as a 'wet wall', meaning it was not intended to be waterproof. Whilst the Court accepted that water ingress did occur (particularly during heavy rainfall), the Court was not satisfied that the respondent had caused the water ingress or contamination.
Instead, the Court found that the ingress was attributable to multiple factors, including:
- heavy rainfall
- limited stormwater capacity in the area
- additional runoff from the applicant’s southern wall, and
- the design and construction of the applicant’s retaining wall.
The Court found that the real cause of the entry of water into the applicant’s basement was the applicant’s failure to waterproof the basement retaining wall, and that water ingress would have occurred regardless of the alleged issues with the respondent’s drainage or grease trap. As a result, the Court was not satisfied that the respondent had caused an unreasonable interference with the land, and the claim in nuisance failed.
The claim in negligence also failed. The Court was not satisfied that the respondent had breached its duty to the applicant. Even if there had been a breach of duty, the Court found that regardless of whether the respondent had taken steps to prevent the grease trap from overflowing and to prevent kitchen waste from being washed into the stormwater pit, water would have still pooled. Accordingly, factual causation was not established.
Further, and although leave for the applicant to amend its pleadings had been refused (in regard to the contention that the respondent failed to upgrade the stormwater drainage system and grease trap to comply with relevant building standards), the Court confirmed in any event it would not have concluded that a reasonable person in the respondent’s position would have upgraded the stormwater drainage system having regard to the fact that the respondent’s property was constructed prior to the applicant’s property, having regard to the pooling water from the applicant’s southern wall, and having regard to the design and construction of the applicant’s basement retaining wall which was not intended to be waterproof.
The applicant’s claim was dismissed. The respondent was successful on its counterclaim, and the applicant was ordered to contribute to the joint expert costs incurred by the parties.
Implications for you
The Supreme Court of Queensland has confirmed that in order to succeed in a claim in nuisance, there must be shown to be some action or failure to act, which gives rise to an unreasonable interference with a claimant’s reasonable use or enjoyment of its land. The test of what is reasonable is assessed by reference to the ordinary usages of people living in a particular society.
This decision also highlights the difficulty of establishing causation where there are multiple factors contributing to a complaint of loss or damage.
More broadly, this decision highlights the importance of expert evidence preparation, as competing technical explanations will be determined by the credibility of the experts.
Body Corporate for Ocean Pacifique CTS 8379 v Body Corporate for Orchid 17 CTS 11906 [2026] QSC 84
