STRATA CORPORATION NO 15944, 69 AUBURN ROAD, KINGSTON

Equity - Equitable remedies - Interlocutory injunctions - Generally - Cause of action in nuisance where damages and injunction sought as final relief - Past events of flow of water from defendant's land onto plaintiff's land - Where leaks from defendant's reticulated water system alleged to be one source - Interlocutory order sought in prohibitory terms to prevent a repetition - Where practical effect of order would require positive action - Where making of order likely to finally decide the issue - Damages an adequate remedy - Relief refused.

Racecourse Totalizators Pty Ltd v The Totalisator Administration Board of Queensland [1995] FCA 1405; (1995) 58 FCR 119; Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105, considered.

Judgment Number: [2024] TASSC 25

VICKIE LEE DOUGLAS v STRATA CORPORATION NO 15944, 69 AUBURN ROAD, KINGSTON

1. In an action commenced on 12 July 2023, the plaintiff sues the defendant for damages and injunctive relief in nuisance. This is an application for an interlocutory injunction filed on 6 September 2023. It was not certified to be a matter of urgency. The cause of action, in general terms, relates to the flow of water from the defendant's property onto the plaintiff's property at 74 Beach Road, Kingston Beach. The defendant is the body corporate established on the registration of a strata plan for the division of land at 69 Auburn Road, Kingston. For the sake of convenience, I will call the whole of the land at that address as the defendant's property.
2. The defendant's property is on a significant slope above that of the plaintiff. At the bottom of the slope there is a retaining wall about two metres away from the rear of the plaintiff's house. There is an area of the plaintiff's land of about approximately 30 metres in length between the common boundary at the rear of the plaintiff's property and the retaining wall. There are 10 strata title units on the defendant's property, five of which are at the rear. Three of those appear to be contiguous with the plaintiff's property.
3. The intermittent flow of water is said to have started in about 2017, with specific events in March 2022, December 2022 and in July 2023. The plaintiff and her partner, a builder, inspected the retaining wall in February 2000, when she bought the property. It was then in good condition. The plaintiff alleges that the flow of water has severely undermined the retaining wall. It is presently propped up. Expert advice is that it is in need of replacement, the estimated cost of which is about $320,000.
4. As final relief sought in the action, the plaintiff seeks damages and injunctive relief in the form of an order "restraining the defendant from permitting the flow of water from its property ... onto the property belonging to the plaintiff." The interlocutory relief presently sought relates to one potential source of the water flow, that being the defendant's reticulated water system for the units at 69 Auburn Road, (the system). That is, the underground system by which water is brought into the common property and distributed to the units. As ultimately framed, the order sought is as follows:

"The respondent be restrained from operating or permitting to be operated its system ... so as to cause or permit water to be discharged from that property onto the plaintiff's property ... to such a degree as to damage the plaintiff's property or to cause an unreasonable interference with the use or enjoyment of the plaintiff's property".

1. The plaintiff calls in aid r 443 of the Supreme Court Rules 2000. Rule 443(1)(a) relevantly provides that in any proceeding in which an injunction is claimed, the Court or a judge may grant an injunction to restrain any other party from repeating or continuing any wrongful act. In this case, the injunctive relief is sought in order to prevent a repetition of wrongful acts on the part of the defendant in the form of committing a nuisance, it being her case that there was a number of such wrongful acts before the action was commenced.
2. The plaintiff concedes that stormwater is another potential source of problematic water flow. The defendant accepts that the system serving the units has in the past been the source of leaking water, and that it took some time for the issue to be properly addressed. Its position is that there is a lack of evidence to support the suggestion that a repetition is likely.

1. The essential facts and basic chronology are as follows. These are drawn from the affidavits of the plaintiff and the defendant's chairman, Wayne Amos, neither of whom was cross-examined.

(a) In early March 2022 the plaintiff observed significant quantities of water flowing onto and over her property from 69 Auburn Road "over/through" the shared boundary. A considerable quantity of water was seen to be running over No 7/69 Auburn Road through the rear boundary fence.

(b) The water that came from the defendant's property flowed through drains at the base of the retaining wall and left a build-up of mud and silt. Slime appeared, and covered the concrete area at the base of a wall.

(c) When this was notified to the occupants of Unit 6, the secretary of the defendant, (Anneke Tadema), spoke to the plaintiff, apologised for the water discharge, and said the cause was a burst pipe and that she was organising a plumber.

(d) On 20 March 2022, water was still "seeping" through the retaining wall. Ms Tadema told the plaintiff the water would be turned off at 69 Auburn Road at various times; it appears to have been two hour intervals.

(e) On 27 March, the plaintiff told Ms Tadema that water was still flowing through onto her property and that slime was still being created at the base of the retaining wall. She was advised that a plumber had visited but could not find anything and there was a need to further investigate the situation. The water had been turned off.

(f) On the same day Mr Amos told the plaintiff there were bursting mains as a result of cheap plastic fittings used in the original construction. He said they were going to install a water restrictor to reduce water pressure and turn the water off at non-peak times.

(g) On all occasions when it appeared there was an issue with the main water system on the defendant's property, the basement of Unit 7 would flood. Mr Amos noticed that once the mains water was turned off and any issue rectified, the water would very quickly recede from that basement, and dry out within several days. The flooding of the Unit 7 basement was a good indicator of a problem.

(h) On 29 March 2022 Ms Tadema told the plaintiff the leak had been discovered and a plumber had been contacted. She said there should not be any water as there was no pressure due to the water being turned off. The leak seems to have been fixed by a plumber on 27 March. On 1 April 2022 Ms Tadema told the plaintiff of this.

(i) In the period from April to November 2022, the defendant made efforts to engage a plumber to install a pressure reduction value, as had been recommended by the plumber who attended in March. Difficulties were encountered. On two occasions different plumbers were engaged to install a valve, but, without explanation, neither attended the property at the appointed time and made no further contact. On 6 December 2022, the owner of Unit 6 noticed water seeping under neighbouring property and advised Mr Amos. Again, a plumber was booked to install the valve, this time for 7 December but again, without explanation, that plumber did not turn up.

(j) On 21 December 2022, the plaintiff observed water "pouring over the top of the retaining wall and through the drain holes". The backyard of the property "between the retaining wall and the boundary was drenched, with water seen flowing from number 69 Auburn Road across the boundary". The same thing was seen on 26 December.

(k) On 26 December 2022, a plumber went to the defendant's property and rectified an issue with the mains pipe on the defendant's property by excavating the location of the suspected leak and undertaking repairs and replacement of the "poly water pipes". The defendant continued to restrict the water use until a valve had been installed.

(l) On 31 December 2022, Mr Amos emailed the plaintiff, explaining that they had made arrangements for a pressure valve to be installed, but those arrangements had fallen through each time. He said there was a pressure valve on order and was soon to be installed. On 1 January the plaintiff complained that water was still seeping "through the retaining wall".

(m) On about 5 January 2023 the pressure valve was installed at the defendant's property. The December 2022 and January 2023 plumbing works cost the defendant the total sum of $6,160.

(n) By 20 July 2023 the plaintiff had, for several weeks, seen water "exiting the wall at the street front of her property, running over the footpath and slowly running down Beach Road". Water was again seen flowing through the retaining wall. The plaintiff says that the "ground at the back of my property near the boundary [had] become saturated". By email of the same day, the plaintiff told the defendant of water coming through the retaining wall, saying that "the ground is moist at the back of our boundary", and asking that they check for leaks.

(o) Mr Amos inspected the entire area which included looking at the basement of Unit 7, and found no signs of leakage. Mr Amos replied to the plaintiff that they had looked in "all the usual places that indicated a leak" and had not found anything obvious. They were "working on engaging a professional to do an inspection to make sure everything is working how it should".

(p) As at 4 September 2023, water flows across the boundary of the two properties and onto the plaintiff's land "after rain", with water pooling around the base of the retaining wall.

(q) In December 2022, the plaintiff was told by an insurer that the policy of insurance on the property would not be renewed in February 2023 because of the risk posed to the house by the retaining wall, and she has since been unable to obtain insurance.

1. The statement of claim in the action is dated 12 July 2023. It pleads the event that in early March 2022, "significant surface and/or sub-surface water flowed from the defendant's land, and flowed onto the plaintiff's land". It pleads that water continues to flow from the defendant's land "including following a significant rain event on 21 December 2022". I was told that accompanying the delivery of the statement of claim was a letter advising that the word "rain" should not appear in the particular paragraph. No amendment has been sought, either to make that alteration or to bring in the suggested later 20 July 2023 'event'.
2. Paragraph 12 of the statement of claim is in the following terms:

"The defendant has failed and continues to fail to contain storm water and/or other water to the defendant's land or to divert such water flow to a storm water or other catchment system, with the consequence that the flow of water on the plaintiff's land has, and continues to, create a nuisance on the plaintiff's land."

1. The focus on the reticulated water system has to be viewed in that context. As far as the leaks in the water system are concerned, the resultant water would, in order to fall within the terms of par 12, be regarded as "other water" which the defendant has failed to contain or divert.
2. The defendant tendered, without objection, Bureau of Meteorology data showing rainfall for the area in the relevant period. That record shows that between 5 December and 17 December 2022 a total of 67.2 mm of rain fell. The heaviest fall was 22 mm on 14 December. Between 12 December and 17 December inclusive, 48 mm fell. Nothing was recorded on the 19th, 20th or on the 21st but 0.6 mm fell on 20 December.
3. Although, on the evidence, there seems to be no question about a leak from the system in December 2022, the defendant says this "heightened rainfall" would be stormwater that needed to be dealt with by the systems in place. The defendant's point is that it adds complexity to the issue of what water is finding its way to the plaintiff's retaining wall, and the examination of that issue would require expertise in relation to soil type and quality, topography, sub-surface flow and the general concept of hydrostatic pressure.
4. The principles to be applied in determining this application for relief are well established and understood. See Australian Broadcasting Corporation v O'Neill [2006] HCA 46, 227 CLR 57 at [19], [65]-[72], Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156, 217 FCR 238 at [52]- [74] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [87] and Powell v Business Expansion Capital Pty Ltd [2008] TASSC 26 at [12]- [15]. In basic summary, those principles are as follows:
   • The plaintiff must establish a prima facie case (a 'serious question to be tried') in the underlying cause of action; that is, a sufficient likelihood of success at trial to justify in the circumstances the relief sought.
   • Consideration of the requisite strength of the chance of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order.
   • The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted. The plaintiff must be likely to suffer injury for which damages will not be an adequate remedy.
   • The assessment of harm to the plaintiff if there is no injunction and the assessment of prejudice or harm to the defendant are at the heart of the discretionary considerations; the interaction between the assessment of likely harm to the plaintiff and the assessment of the adequacy of damages as a remedy will always be an important factor in the Court's determination of where the balance of convenience and justice lie.
   • The question of whether there is a serious question to be tried should not be considered in isolation from the balance of convenience; they are related, not independent questions.
5. Although the plaintiff's case at times seems to suggest a continuous flow, the argument for the injunction, as I have noted, squarely rests on the argued likelihood of a further leakage event from the system. A flow of water onto the plaintiff's land from the system would constitute a nuisance if it was an unreasonable interference with the use and enjoyment of the land. But the nuisance would be the flow onto the land from each leak, and each occasion on which there was a leak would be a separate legal wrong if the defendant were liable. The plaintiff relies on inference. Evidence of past leaks could give rise to a finding that further episodes of nuisance are likely to occur, and consequentially that relief should be granted.
6. The plaintiff argues that little comfort can be drawn from what the defendant has done to date in the known state of the system and the level of risk of a future leakage event is sufficiently high to justify the relief sought given where the balance of convenience lies. In that respect, the plaintiff submits she is in an extremely difficult position, presently suffering the effects of unreasonable interference with the use and enjoyment of her land, and damage. She is unable to replace the retaining wall until the area is dry, and cannot obtain insurance for the house because of the inherent risk of the wall collapsing. Counsel submitted that the inconvenience to the defendant in getting further investigative work done "and potentially undertaking works that fix the problem, once ... properly identified, is not an unreasonable outcome at all."
7. As to the defendant's potential liability, there was some discussion by its counsel about difficulties for the plaintiff were the water source to be external to the defendant's property, but I did not understand there to be an argument that it is not potentially at risk in relation to the system leakages. In addition to the creators of a nuisance, an occupier from whose land a nuisance emanates may incur liability based on its control over what happens on the land: Eastern Asia Navigation Co Ltd v Fremantle Harbour Trust Commissioners [1951] HCA 7; (1950) 83 CLR 353.
8. The defendant accepts that the system has been detected as leaking on two occasions in the past. The difficulty, it says, arises when assessing whether there is ongoing problem giving rise to a risk of repetition. While seeming to accept that until such time as there is a full scale investigation of the whole system, there is a possibility of further leaks, the defendant's position is that the instillation of the pressure value has, on the evidence, solved the problem. It argues that the evidence is not "particularly convincing" that any leak from the system was responsible for what was observed in July 2023, and there is a real possibility of causes of what was then observed, other than a leak from the system.
9. To be taken into account in assessing the balance of convenience is that the defendant will have to undertake large scale investigations, and possibly very expensive repairs if not complete replacement, at a stage before factual matters in issue have been resolved. The defendant says there is a grave risk of expensive investigations having to be undertaken, only to establish that there is no problem with the system. Such a requirement would be most unfair. I note that an aerial photograph of the defendant's property shows a 'battleaxe' block, with a long concrete driveway leading to a substantial area of concreted common property.
10. The defendant's position is that if it is established that past water flow from its property caused damage to the retaining wall, then damages follow. The defendant says the situation at present remains as it stood following the events in March and December 2022. If there is a further leak and any further damage is caused - noting the retaining wall is already in need of replacement - then damages for such harm, or similar, and for further interference with the use of the land, will be an adequate remedy.
11. In considering an interlocutory injunction, it is generally thought to be no part of the court's function to try to resolve conflicts in evidence on affidavit as to facts on which the claims of either party may ultimately depend: Cash Converters Pty Ltd v Hila Pty Ltd (1993) 9 WAR 471; Remrose Pty Ltd v Allsilver Holdings Pty Ltd [2005] WASC 251. With that in mind, I make the following observations about the facts. It can be reasonably inferred that the defects in the reticulated water system caused water to flow onto the plaintiff's land in March 2022 and December 2022. There are the observations of the plaintiff, the communications exchanged, the steps taken to fix apparent leaks, and the statements made by the plaintiff to Mr Amos.
12. It is the period after the installation of the pressure value in January 2023 to the time of the hearing that calls for consideration. The plaintiff has not mentioned any problem between January 2023 and July 2023. As noted above, the plaintiff says that by 20 July, "water had been observed exiting the wall at the street front" of the property, running over the footpath and down Beach Road. This had been visible for several weeks. She says that there was water flowing through the retaining wall, as distinct from the boundary fence at the rear, but says that the rear of the property at that boundary was "saturated".
13. This was all reported to Mr Amos in an email dated 20 July 2023, annexure to his affidavit. That email is the following terms:

Water has been slowly running down Beach Road for several weeks (we have reported this to Council). Today we noticed is now coming through our retaining wall again, and the ground is moist at the back of our boundary."

1. To the extent there is any material difference, that email may be more reliable as contemporaneous account.
2. There is no evidence at all as to what happened in relation to the plaintiff's report to the Council, nor of anything relevant in the immediate aftermath, other than Mr Amos checked the "usual places that indicate a leak" and had not seen anything that suggested a problem. The state of the evidence is that as at 4 September 2023, when the plaintiff swore her affidavit in support of this application, water still flows from the boundary at the rear after rain with water pooling around the base of the retaining wall further down the slope. Water also seems to have emerged at the front of the plaintiff's property and onto Beach Road.
3. There is some merit in the defendant's point that the evidence in relation to the July 2023 observations does not as clearly point to the reticulated water system as does the evidence in relation to those of March and December 2022. Additionally, there is no evidence, apart from the evidence of an ongoing situation described as at 4 September 2023, of any particular incidents or events between July 2023 and the date of this hearing.

1. It can be accepted that the plaintiff has a relatively strong case in relation to past events; certainly those in March and December 2022, and an award of damages would flow for those past incursions and the consequences. The question is whether the plaintiff could, at trial, establish a case in respect of the risk of future "episodes" of nuisance arising from the system.
2. I would accept that there is a chance of success in that respect; there is a prospect of establishing that due to the apparent inherent defects in the reticulated water system, there will be repetition. It may be that the pressure valve, while it seems to have been successful at least to an extent, may not have completely rectified all issues which may give rise to a leak. It is the claim for final injunctive relief based on past events and the likelihood of recurrence which is the subject of the inquiry as to a prima facie case.
3. I turn to the defendant's point as to the effect of the order sought; that is, its practical effect. The point was made at a time when the order sought was in much broader terms. By its original form, the plaintiff sought to restrain the defendant from permitting the flow of water from its property onto hers. The order sought was confined to that now being considered by email from the plaintiff's solicitors after I had queried the clearly apparent breadth of the original order, and after the hearing had ended. But in my view, for the following reasons, the point retains validity.
4. The plaintiff asks that the defendant be enjoined from operating or permitting to be operated its reticulated water system so as to cause of permit water to be discharged from its property. In order to obviate the risk of being in contempt, the defendant would be required to carry out further investigations of the system, in circumstances where it asserts that any problematic source of water is elsewhere. The evidence of the expert engineer engaged by the plaintiff, Stephen Cole, is that an investigation would include establishing the condition, depth and material of the pipes, with the residents of all 10 units needing to be spoken to about the leaks. Beyond that, I have no evidence as to the scope or cost of further investigations, but from the whole of the evidence, I think it is reasonable to infer that considerable cost would be involved.
5. There has been debate over whether, in the case of a mandatory injunction, an applicant must show that its case is strong to the extent that the court has a 'high degree of assurance' that such an order is appropriate. The issue was discussed in Mineralogy Pty Ltd v Sino Iron Pty Ltd (above) per Newnes JA at [81]-[86] (Corboy J agreeing), his Honour concluding that that no different standard applies in respect of an application for a mandatory injunction, although noting that in the application of the normal tests, the fact that the relief sought is mandatory would often, though not always, tilt the balance of convenience in the defendant's favour.
6. Newnes JA noted what Hoffman J said in Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 679; viz, that "... semantic arguments over whether the injunction as formulated can properly be classified as mandatory or prohibitory are barren. The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction."
7. Newnes JA also noted Racecourse Totalizators Pty Ltd v The Totalisator Administration Board of Queensland [1995] FCA 1405; (1995) 58 FCR 119, in which Kiefel J rejected the proposition that the classification of an order as 'mandatory' automatically attracted the requirement that the court have further confidence in the correctness of the order. In that case, her Honour went on to explain the approach to what might be regarded as 'mandatory' orders. At 123, her Honour said:

"What is firstly required is a consideration of what it is that is required to be done by the order and the effect that will have. It is where the order can be seen to have a profound effect that further 'assurance' will be necessary. This may be so where the matter would then be financially [sic finally] determined and a defendant has raised a triable is thereby denied a right to a full hearing ... It may also arise at a lesser level where, for instance, what is required is very costly and time consuming. In these cases the position is reached where the making of the order cannot be justified without another strong factor being able to be weighed against these effects and that factor may be a strong case being shown for final relief, although the difficulty is assessing it at an interlocutory stage may often have the result that the relief is denied." [Emphasis added]

1. It has also been said that interlocutory mandatory injunctions are more likely to issue where the defendant is compelled, not to embark upon a fresh course of conduct, but to revert to a course of conduct pursued before the occurrence of the acts or omissions that provoked the litigation: Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1988) 82 ALR 499 per Gummow J at 503.
2. I take the view this point militates against the plaintiff's position.
3. The wording of the order sought creates a further difficulty for the plaintiff. The order sought would allow the defendant to operate or permit to be operated the system so as to cause water to be discharged, but to a certain degree. The prohibition cuts in at the point where damage or unreasonable interference with use and enjoyment of the plaintiff's property is caused. That would require the defendant to make an assessment. That puts the defendant in an uncertain position, and that uncertainty would make the order difficult to enforce.
4. There is a further issue which impedes the making of the order. The reference to "practical consequences" in the earlier statement of principles is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would finally dispose of the action: ABC v O'Neill (above) at [72]. Where that is so, closer attention needs to be paid to the strength of a plaintiff's case for final relief and the likelihood of success: Samsung Electronics Co (above) at [71]-[74]. Generally in such a case, an injunction ought not to be granted if the consequence is to deny a defendant an effective right to trial where they have put forward an arguable case and the plaintiff's case is not overwhelming: Cayne v Global Natural Resources Pty Ltd [1984] 1 All ER 225 at 233, 236, 238. See also the passage from Racecourse Totalizators Pty Ltd cited above.
5. Insofar as the plaintiff's action it relates to the system, I consider that in the circumstances, making the order sought would, in effect, finally determine the issue in the action as it relates to the system.
6. Additionally, on the evidence I am not persuaded that in the event of a further leak from the system causing an influx of water onto the plaintiff's land, damages would not be an adequate remedy. That of itself is not determinative of the outcome, and there are cases which suggest that the requirement that damages not afford adequate relief is not difficult to meet, particularly where the nuisance is likely to be repeated: Beswicke v Alner [1926] VicLawRp 10; [1926] VLR 72 and Madden v Coy [1944] VicLawRp 1; [1944] VLR 88.
7. I accept that the plaintiff is in an unenviable situation at the moment. In addition to the rather precarious situation with the retaining wall itself, slime has been created in that area which poses some risks. Of course, it is not just damage to property which is involved; the interference with the plaintiff's use and enjoyment of the land needs to be borne in mind. But it seems to me that any further incursion of water emanating from the system would be injury or harm of a type compensable by a monetary award.
8. In summary, I am satisfied there is a serious question to be tried in relation to the risk of a recurrence of leaking from the system, but on the material, I do not think the case is a compelling one. In that circumstance, and in light of the combination of the relevant factors that weigh against the plaintiff as I have discussed, I am not satisfied the relief should be granted. The application is dismissed.