Henderson v Cox [2024] VCAT 1196 | Case summary

Henderson v Cox [2024] VCAT 1196 | Case summary | Zoe

Sadly, claims made under the Water Act 1989 (Vic) ('the Act') are commonly symptomatic of a broader historical dispute that has existed between neighbours for years. Over time, warring neighbours can find it increasingly difficult to resolve disputes and, eventually, one of them commences legal proceedings on a particular issue, which is met with a counterclaim by the other, and they both fall headlong into the vortex of litigation. They devote more and more time, stress, and funds in pursuing litigation against each other, and in doing so, become more entrenched in their own position. The neighbours dearly want to end the lawsuit but find that the only way to achieve this is for a tribunal to impose a decision upon them.
This is such a case.[1]
The applicant and the respondent own adjoining properties facing east in George Street, Fitzroy, an inner Melbourne suburb. The original houses are over 80 years old.[2] They share a common wall.
The applicant, Mr Henderson, purchased his property in about 2005. The respondent, Ms Cox, initially purchased her property with her father in about 2006, and then become sole owner in 2012.
A sewerage main runs along the lane behind the properties. The main is connected to a combined drain ('combined drain') which services both Mr Henderson's and Ms Cox's properties. The combined drain enters the rear of Ms Cox's property. From the point of entry, moving upstream towards Ms Cox's house, the combined drain consists of an old earthenware section ('earthenware section') and then, closer to the house, a newer PVC pipe.
As it heads towards Ms Cox's house, the PVC pipe arrives at a junction where it splits off into two PVC pipes. One pipe attaches to Ms Cox's dwelling and services. The other runs under the northwestern corner of Ms Cox's house, enters Mr Henderson's land and attaches to his dwelling and services. A depiction of the pipe arrangement is attached to this decision, as accepted by both parties and their respective experts.[3]
Close to the point of entry into Ms Cox's property from the rear lane, the combined sewer is accessible from the ground surface via a boundary trap shaft. The shaft is also made of old clay earthenware. A short PVC pipe and screw cap sits on top of the boundary shaft. Mr Wenning, a plumbing expert, measured the depth of the boundary trap at about 2.4 metres.
The earthenware section and boundary shaft are at the heart of the dispute.
Both parties agree that:
1. the earthenware section and boundary shaft suffer from fractures and tree root intrusion and are in poor condition;
2. the earthenware section has suffered from blockages on four occasions, in February 2016, August 2020, June 2021 and February 2023;[4] and
3. each of these intermittent blockages has resulted in a backflow of sewage within Mr Henderson's house.
Mr Henderson says that blockages also occurred in September 2019, July 2021 and June-July 2022.[5] Ms Cox disagrees.
While the claims are for relatively modest amounts, the parties have relied upon a broad range of evidence and argument in support of their respective claims and defences. Also, the claims raise novel legal issues that appear not to have been addressed previously.

[5]

Mr Henderson claims damages totalling $825.00 as well as an order for Ms Cox, at her cost,[6] to arrange for the failed earthenware section and boundary trap to be removed and replaced. The amount of $825.00 reflects the amount paid by Mr Henderson to have the combined drain unblocked and cleaned in July 2021 ($385) and in February 2023 ($440).
Mr Henderson claims to be entitled to this relief on the basis that Ms Cox is liable under s 16(2) of the Act for interfering with the reasonable flow of water from his property thereby entitling him to orders under s 19(5) for Ms Cox to carry out and pay for the above removal and replacement work.
Mr Henderson's claim is articulated in undated second amended points of claim filed with the Tribunal on about 14 November 2022 ('POC'),[7] a detailed 11-page chronology attached to the POC,[8] and undated 'Updated Particulars of Loss and Damage and Other Orders Sought' filed on about 11 May 2023 ('Applicant's Updated Particulars')[9] which included various deletions and amendments to the POC. These documents contain a high level of detail, including a range of irrelevant matters; for example, a list of Ms Cox's allegedly 'unreasonable and unneighbourly behaviour'.[10] The level of detail and the inclusion of patently irrelevant material tend to obscure the precise nature of Mr Henderson's claim against Ms Cox.
Early in the hearing, Mr Henderson identified the following grounds in support of his claim against Ms Cox. He alleges that Ms Cox:
1. allowed plants (including a large tree and an ivy/creeper) to grow and/or enter Ms Cox's property knowing that their roots were entering and blocking the combined drain;[11]
2. is liable for non-compliant works to the combined drain arranged by a previous owner of Ms Cox's property during the period 2002-2004;[12]
3. in 2016, failed to engage a licenced plumber to inspect and repair the combined drain after her tenant, Mr Fiddy, had arranged for a large tree to be removed from the backyard and allegedly caused consequential damage to the combined drain;[13]
4. failed to engage proactively in achieving a solution for both parties in relation to the failed earthenware section;[14]
5. allowed the blockages to occur and took an unreasonable time to fix those blockages;[15]
6. denied Mr Henderson access to unblock the combined drain;[16] and
7. refused Mr Henderson's proposals to 'resolve these matters', including a proposal in July 2021 that the parties enter a 'Deed of Agreement' as prepared by Mr Henderson's solicitors.[17]
In his POC, Mr Henderson also alleges that Ms Cox had placed a 'large and heavy concrete buddha statue' above that part of the earthenware section that 'experienced displacement'.[18] He did not pursue that head of claim at trial.
By way of counterclaim, Ms Cox seeks: damages totalling $928.40; an order for her to arrange for the failed earthenware section and boundary trap to be removed and replaced; and an order for Mr Henderson to reimburse Ms Cox for 50% of the cost of the removal and replacement work.
The amount of $928.40 comprises the cost directly or indirectly incurred by Ms Cox to clear blockages that occurred in:
1. February 2016, in the sum of $290.40, being 50% of the $580.80 invoice;
2. August 2020, in the sum of $308.00; and
3. June 2021, in the sum of $330.00.
Ms Cox similarly pursues her counterclaim on the basis that Mr Henderson is liable for interfering with the reasonable flow of water under s 16(2) of the Act, and therefore, the Tribunal can make the orders for replacement of the earthenware section and boundary trap under s 19(5). Ms Cox says that Mr Henderson breached his obligations under reg 19 of the Water (Estimation, Supply and Sewerage) Regulations 2014 ('the Regulations') to maintain the combined drain and keep it in good working order, and that this constitutes 'interference' for the purpose of s 16(2) of the Act.
Prior to the last day of hearing, for clarity, I directed both parties to submit written proposed final orders. In their respective proposed orders, both parties confined their claims to relief available under ss 16(2) and 19(5) of the Act.
Both parties seek an order for Ms Cox to carry out remedial work to the earthenware section and boundary trap.
Mr Henderson proposes that the remedial work be carried out by DJS Melbourne Plumbing Solutions ('DJS') for the sum of $14,999.00, GST inclusive (quote no. 98025 dated 27 November 2024) and consequential work in reinstating brick pavers by Steve's Architectural Restorations for the sum of $1,330.00, GST inclusive (quote dated 19 November 2024); namely, a total sum of $16,329.00.
Ms Cox proposes that the remedial work be carried out by C&R Plumbing Group ('C&R') for the sum of $15,660, GST inclusive (quote no. 927 dated 2 December 2024) and consequential work in reinstating brick pavers by Raw Grit Bricklaying ('Raw Grit') for the sum of $2,288.00, GST inclusive (quote no. QU-00462 dated 10 November 2024); namely, a total sum of $17,948.00.

[6]

The Tribunal allocated one day for the final hearing. Unfortunately, the hearing took three days to be completed, mainly because of the broad range of issues ventilated and responded to by the parties.
The parties referred to documents contained in a 560-page Tribunal Book as well as a range of additional documents provided by both parties over the course of the final hearing. The facts in issue covered a period of about 21 years (2003 to date) as well as some historical drainage-related documents from the past 120 years or so. The amount of documentation relied upon by the parties, and the extent of the oral evidence given by the parties (including cross-examination) are clearly disproportionate to the nature of the issues that were in dispute, particularly given that both parties seek the same primary order that Ms Cox should rectify the earthenware section and boundary trap.
Mr Henderson represented himself throughout the proceeding. However, from about April 2020, he engaged lawyers, WJ Gilbert & Co, who corresponded with Ms Cox and her solicitors, prepared a proposed settlement deed in July 2021 and prepared and lodged this VCAT application on Mr Henderson's behalf in September 2021.[19]
Mr Henderson previously filed witness statements from: the builder for the extension work, Trenton Symons; the previous owner of the respondent's land, Kate Cordukes; a current neighbour, John Loats (2 statements); a builder engaged by Mr Henderson to take photographs and measurements, Steve Duyker; and a former tenant of Ms Cox, Danny Fiddy. Of these witnesses, Mr Henderson only called Mr Fiddy to give evidence at the hearing.
Mr Todd Allen appeared as counsel for Ms Cox. Ms Cox gave evidence.
Much of Mr Henderson's evidence was irrelevant, of little evidentiary weight and/or misconceived. This included: detailed opinion evidence from Mr Henderson himself about building and plumbing standards and practice; reference to witness statements from persons who were not called to give evidence; and alleging that in 2002-2004, prior to Ms Cox purchasing her property, non-compliant plumbing work was carried out as part of the extension work on that land. The fact that much of Mr Henderson's arguments was irrelevant or tenuous was pointed out to him on several occasions during the hearing but, on most occasions, he ignored the caution and soldiered on.
After adopting the content of their respective reports, Mr Mark Newell, plumber, and Mr Peter Wenning, hydraulic services consultant, gave concurrent expert evidence.
At the commencement of the hearing, Mr Henderson objected to Ms Cox being represented by counsel. I refused the application on the ground that Mr Henderson would not be unfairly disadvantaged: the involvement of counsel for the respondent was likely to (and, in fact, did) assist the Tribunal and the parties to identify the material issues in the dispute, and to assist the Tribunal in exercising its obligations to act fairly and in accordance with the substantial merits of the case.[20] I advised Mr Henderson that, in line with those obligations, I would provide him with such assistance as was necessary to ensure that he was treated fairly during the hearing.[21]
At the start of the hearing, and on a number of occasions thereafter, I explained that I would only accept into evidence those documents expressly referred to by the parties during the hearing.

[34]

Mr Allen submitted, and I accept, that the parties' properties are deemed to be 'serviced properties' even though neither is the subject of a declaration under s 144 of the Act.[30]
Regulation 19 imposes two key obligations on owners in relation to 'sanitary works' (being pipes on their property conveying sewage, including inspection shafts):
1. a duty to 'maintain', which includes 'cleanse, flush, repair and, if necessary, replace'; and
2. a duty to keep in 'good working order', which includes that the works 'operate in a hygienic manner and are not subject to any damage that allows water or sewage to infiltrate or leak from the works'.[31]
The obligation that sanitary works are kept in 'good working order' is onerous, including that they must operate hygienically, and must not suffer from 'any damage' that permits sewage to leak from the combined drain. This is clearly a health, safety and environmental issue, not only intended to protect owners of serviced properties but others such as tenants, adjoining owners and the broader community.
Regulations 19(2) and (3) apply specifically to owners of 'combined sanitary works' (ie, combined drains), being 'the part of any sanitary works' that conveys (or is intended to convey) sewage from:
1. a serviced property (Mr Henderson's property) to the sewerage works and is located on another serviced property (Ms Cox's property); and
2. from 2 or more serviced properties (both properties) to the sewerage works.
Under reg 19(2), 'each' of the owners of the serviced properties must maintain and keep a combined drain in good working order. Therefore, an owner who is in a position to maintain the combined drain - for example, because the part of the drain requiring maintenance is located on their land - cannot refuse to do so on the basis that, for some reason, another relevant owner does not participate in that maintenance. 'Each' owner of the applicable serviced properties is wholly responsible.
This appears to be an appropriate mechanism for ensuring that combined drains are maintained and kept in good working order because the owner who incurs costs in carrying out maintenance and/or making good can then recover some or all of those costs (as the case may be) on the basis that the owner who did not participate is also, under reg 19(3), 'jointly and severally liable' for those costs. Under reg 19(3), the owners are liable for the whole of those costs collectively, and each of the owners is liable for those costs separately.
The Tribunal does not have jurisdiction to order that a party is liable under reg 19(3). However, the fact that a party is jointly and severally liable under that provision may be a relevant factor when the Tribunal exercises its discretion in making orders that are 'appropriate' under s 19(5) of the Act.
Regulation 19(4) does not apply here. Neither party pointed to an alternative apportionment under any plan of subdivision, owners corporation rules or agreement between the parties.

[36]

Mr Henderson has the burden of proving, on the balance of probabilities, that a blockage occurred in July 2021.
The following evidence is relevant:
1. In June 2021, Ms Cox engaged Plumbing Water Specialists ('PWS') to clear a blockage of the combined drain.[32] The parties agree that this blockage occurred.
2. By email to Ms Cox on 16 July 2021, Mr Henderson advised that 'the sewer drain has blocked again' and requested access for his plumber to rectify the issue.[33]
3. Later that day, a plumber from All Star Plumbing & Gasfitting ('All Star'), engaged by Mr Henderson, attended Ms Cox's property. Mr Henderson did not call any witnesses from that plumbing firm to give evidence at the hearing.
4. During that attendance, the All Star plumber took video footage of the earthenware section.[34] During the hearing, both Mr Newell and Mr Wenning watched that video footage and agreed there was no blockage in the drain at that time when the video was taken.
5. Mr Henderson gave evidence that he did not attend Ms Cox's property at that time, and therefore he did not inspect the earthenware section.
6. All Star issued an invoice to Mr Henderson dated 16 July 2021 for $385.00 (GST inclusive).[35] It refers to an unidentified 'problem area' in Ms Cox's property, and to 'root entry, hairline cracks, and potential dislodgment in joins starting in urbanware sewer'. The invoice does not refer to any blockage in the earthenware section or otherwise nor any removal of any blockage.
7. In an email to Ms Cox on 16 July 2021, Mr Henderson advised that the plumber 'cleared the blockage and took photos'.[36] Mr Henderson surmised that, in June 2021, Ms Cox's plumber, PWS, 'did not clean the pipe out properly, it remained blocked'.
Ms Cox submits that no blockage occurred in July 2021:
1. because PWS had cleared a blockage only a few weeks prior to that time; and
2. the video footage taken by the All Star plumber on 16 July 2021 showed no blockage.[37]
On balance, I find that the July 2021 blockage did occur.
The most compelling evidence is that, initially, Mr Henderson sent an email to Ms Cox advising that the 'sewer had blocked again' and offered to arrange for his plumber to attend and fix the problem that day. It seems that Mr Henderson was treating the issue with some urgency, which is understandable if he (and any other occupants in his house) had experienced a blockage to their sewer, particularly given that a previous blockage had occurred in June 2021.
During the hearing, it was suggested that Mr Henderson's true intention in July 2021 was to have his plumber gather evidence for his pending VCAT case against Ms Cox. There is no evidence that supports the view that this was his true intention, and that his request on 16 July 2021 was disingenuous. Also, it is inconsistent with the urgency of Mr Henderson's request at about 12:54pm on 16 July 2021 to gain access to Ms Cox's property that day.
Secondly, the fact that a blockage happened in June 2021 is not determinative of whether another blockage may have occurred in July 2021.
Thirdly, the video from All Star is evidence that there was no blockage at the time when the video was taken. It does not demonstrate whether a blockage existed on the day of All Star's attendance, prior to the time when the video was taken. Furthermore, the description included in the All Star invoice is not inconsistent with its plumber having removed a blockage.
There is an evidentiary rule that, where a party does not call a witness to give evidence, the Court may infer that the evidence to be given by that witness would not have assisted that party's case.[38] Accordingly, the question arises whether I should draw such an inference against Mr Henderson for not calling the plumber from All Star to give evidence about their attendance at Ms Cox's property in July 2021.
My finding that a blockage occurred in July 2021 is not affected by this issue. First, I am not bound by this rule.[39] Secondly, even if I inferred that the evidence from the plumber would not have assisted Mr Henderson's case, I would still have found in his favour on this issue, particularly by reference to the content of Mr Henderson's email to Ms Cox dated 16 July 2021.

[38]

As to the substantial merits of Mr Henderson's claim, the essential question is whether Ms Cox interfered with the reasonable flow of water by failing to comply with her duties under reg 19(2) to 'maintain and keep in good working order' the combined drain and, in so doing, caused Mr Henderson to suffer economic loss, being the cost to clear the blockage that occurred in July 2021 and in February 2023. In his claim, Mr Henderson described this as a failure by Ms Cox to act proactively in remedying the failed earthenware section.
In my view, the answer is yes.
For the reasons outlined below, I find that:
1. Ms Cox had a duty under reg 19(2) to maintain the combined drain on her property (in particular, the earthenware section and boundary trap) and keep it in good working order;
2. at least by August 2020, Ms Cox knew of the blockages and that they arose because of the failure of the earthenware section located on her property;
3. at least from the time when she became aware of the blockages and that they were likely to have been caused by the failure of the earthenware section, Ms Cox failed to carry out her duties to 'maintain' and keep the drain 'in good working order';
4. by reason of that breach of duty, Ms Cox 'interfered' with the reasonable flow of water through the combined drain;
5. this interference caused Mr Henderson to suffer economic loss in the sums of $385 and $440 incurred in July 2021 and in February 2023 respectively;
6. and so, Ms Cox is liable to pay Mr Henderson damages in the sum of $825;
7. also, it is appropriate to order that Ms Cox carry out necessary works so that the part of the combined drain located on her land (in particular, the earthenware section and boundary trap) performs in future in a hygienic manner and is not subject to any damage that allows sewage to infiltrate or leak from the drain.
The Regulations define an owner's duty to maintain as an obligation to 'cleanse, flush, repair and, if necessary, replace' a combined drain. Keeping the drain in good working order means that the drain operates 'in a hygienic manner' and is not subject to 'any damage that allows water or sewage to infiltrate or leak' from the drain. As mentioned above, this is an onerous obligation designed to protect not only the owners of serviced properties, such as the parties here, but also other members of the broader community. In the circumstances here, arranging for blockages in the flow of sewage to be cleared from time to time in the knowledge that blockages were likely to reoccur in the future, does not satisfy this duty.
In 2016, Ms Cox had become aware that the earthenware section was not in good working order and needed to be 'maintained'.[40] Ms Cox admits that a blockage happened in February 2016. Mr Fiddy's emails to Ms Cox in February 2016 together with the quote and invoice from Service Today indicated to Ms Cox that the source of the blockage was located on her land, and likely resulted from the cracking at the point where the PVC pipe joined the earthenware (terracotta) section.[41] It is understandable that, once Mr Fiddy had removed the tree, which he thought was causing the blockage, Ms Cox assumed that the problem with the combined drain had been resolved.
At least by 2020, Ms Cox knew that the earthenware section required remediation, if not replacement.[42] In August 2020, a further blockage occurred which resulted in excrement entering the shower in Mr Henderson's dwelling. A series of texts between Mr Henderson and Ms Cox ensued which mainly focussed upon who should pay for, or contribute towards, fixing the blockage and replacing the drain to achieve a permanent solution.[43] In the last of the texts, Ms Cox advised Mr Henderson that all future contact be via her solicitors.
In May 2021, Mr Henderson and Ms Cox's solicitors continued to communicate about whether Mr Henderson would contribute towards the cost of the remediation. On 18 May 2021, Mr Henderson complained to Ms Cox's solicitor that he was unable to shower because of a 'partially blocked sewer'.[44] Ms Cox's solicitor acknowledged that 'we are dealing with a very old drain that clearly needs replacing'.[45] A further blockage occurred on 17 June 2021.[46] Mr Henderson and Ms Cox's solicitor discussed the possibility of the parties sharing the cost to unblock the drain annually, but the parties were unable to reach agreement. In a number of emails sent on 16 July 2021, Mr Henderson advised Ms Cox about a further blockage.[47]
Given the number of blockages that happened between February 2016 and February 2023, the scope of this duty required Ms Cox to arrange for the earthenware section and the boundary trap to be replaced. 'Spot fixing' blockages that occurred from time to time and caused backflow into Mr Henderson's premises does not, in my view, satisfy Ms Cox's duty to ensure that the combined drain, located on her property, operated in a 'hygienic manner' so that it was not subject to 'any damage'.
Ms Cox argues that she was not required to carry out the remedial/replacement work to the earthenware section because Mr Henderson failed to contribute towards the cost of that work. Given that the duty under reg 19(2) applied to 'each' owner, Ms Cox had an obligation to carry out the required work on her land irrespective of whether Mr Henderson was liable to contribute towards the cost of that work. The Regulations do not provide that contribution by one owner towards the cost of remedial work is a precondition to the other owner carrying out that work in accordance with their duty to do so.
As the owner of the land where the failed earthenware section and boundary trap are located, at all material times, Ms Cox had the requisite power and control over her land to remedy the problem.
Mr Allen submitted that Mr Henderson had an obligation to 'take all reasonable steps' to maintain and keep the combined drain in good working order, and therefore he was required to contribute towards the cost of repairing/replacing the combined drain ahead of the work being carried out.
In my view, any obligation under reg 19(1) to 'take all reasonable steps' cannot include an obligation by Mr Henderson to agree to contribute towards future works in respect of a combined drain located on Ms Cox's property.
First, reg 19(1) does not impose an obligation on an owner to take all reasonable steps to maintain or keep in good working order a drain where it is located on someone else's property.
Regulation 19(1) requires an owner of 'a serviced property' to 'take all reasonable steps' to maintain and keep in good working order 'all sanitary works'. 'Sanitary works' is limited to the sanitary drain that runs from a building or structure on the owner's property 'to the sewerage works'.[48] In other words, the owner's obligation to maintain the sanitary drain ends where the drain attaches to the 'sewerage works'. The term 'sewerage works' essentially refers to a sanitary drain that runs from the sewer main to a point located within the owner's property. Accordingly, in my view, an owner's obligations to 'take all reasonable steps' under reg 19(1) is limited to the 'sanitary drain' located on that owner's property.
Secondly, reg 19(1) is a general provision that imposes obligations upon all owners of serviced properties 'to take all reasonable steps' in respect of 'all sanitary works'.
By contrast, regs 19(2) and (3) specifically apply to combined drains, imposing upon 'each' owner an obligation to maintain the drain and keep it in good working order, and imposing on all owners joint and several liability for those costs incurred by one or more of the owners. Regs 19(2) and (3) do not impose on owners of a combined drain an obligation 'to take all reasonable steps'. As a general rule, specific provisions prevail over general ones.[49]
Ms Cox's breach of her duties under reg 19(2) amounts to interfering with the reasonable flow of water through the combined drain under s 16(2) of the Act. The failure by Ms Cox to comply with her obligation to replace the earthenware section at least over the period 2020-2023, resulted in the earthenware section continuing to hamper (and, at times, prevent) that flow, which resulted in the blockages in July 2021 and February 2023.
In closing submissions, Mr Allen rightly conceded that, if the Tribunal found Ms Cox solely responsible for rectifying or replacing the earthenware pipe (which I do), then Ms Cox was liable to Mr Henderson under s 16(2) of the Act for interfering with the reasonable flow of water, at least at the time of the February 2023 blockage.
As to whether Ms Cox caused Mr Henderson to incur the amounts that he incurred in addressing blockages in July 2021 and February 2023, the same tests apply as for a claim in negligence.[50] I find that:
1. but for Ms Cox's interference with the reasonable flow of water along the combined drain, Mr Henderson's expenditure in July 2021 and February 2023 would not have occurred; and
2. particularly given the importance of keeping combined drains carrying sewage in 'good working order', it is appropriate for Ms Cox's liability to extend to a liability for that expenditure.[51]
Accordingly, I find that Mr Henderson has suffered economic loss in the amount of $825 as a result of Ms Cox's 'interference' in failing to replace the failed earthenware section and boundary trap prior to the blockages that occasioned that loss.
In the circumstances here, it is also 'appropriate' that the Tribunal order Ms Cox to carry out the replacement work to the earthenware section and boundary trap, as they are located on her land. Of course, in any event, both Ms Cox and Mr Henderson seek that order.
Under s 19(5), it is also appropriate for me to order Mr Henderson to pay Ms Cox half of the cost of the replacement work for the following reasons:
1. They both enjoy the benefit of the combined drain.
2. Under reg 19(2) of the Regulations, each of them has a duty to maintain the combined drain and keep it in good working order.
3. Most tellingly, under reg 19(3), they are jointly and severally liable for the cost of that maintenance and keeping the combined drain in good working order.
As outlined above, the key issue here is whether Ms Cox interfered with the reasonable flow of 'water' by failing to comply with her obligation to maintain the part of the combined drain that was located on her property, once she became aware of the failure of the earthenware section and that this failure was the likely cause of the blockages and backflow of sewage into Mr Henderson's dwelling. Accordingly, it is unnecessary for me to consider and determine Mr Henderson's various other allegations that Ms Cox actively caused or contributed to the failure of the earthenware section.[52]
Furthermore, as this interference (being the failure to maintain and to keep the combined drain in good working order) did not arise from any works constructed prior to the time when Ms Cox purchased her property, s 16(5) of the Act is not enlivened here.

[41]

As outlined above, under reg 19(2), 'each' owner has an obligation to maintain and keep a combined drain in good working order. Neither the Act nor the Regulations expressly imposes a duty on Mr Henderson to contribute towards remedial/replacement work to the earthenware section as a precondition to Ms Cox arranging for that work to be carried out on her property.
Regulation 19(3) addresses a separate issue; who is liable for the cost of that work? Under reg 19(3), the person who incurs the cost of maintenance is then entitled to recover some or all of that cost from other owners who are jointly and severally liable for that cost.
An objective of the Regulations is to provide for the regular maintenance and cleaning of works, such as a sanitary drain.[54] This objective is not achieved if a person is permitted to defer such maintenance work unless and until others have agreed to contribute their share of the cost. Health, safety, hygiene and protection of the environment should take precedence over the question of contribution towards the cost of such work.
As for s 16(2) of the Act, the text, context and purpose of that provision all support the view that 'interference' here connotes physical interference, as distinct from a refusal, or failure, to contribute funds towards such work.
Subsection 16(2) applies where 'a person interferes with a reasonable flow of water'. Under s 16(2)(b), it is 'water' that must have caused injury, damage or loss 'as a result of that interference'. Subsection 16(5) refers to an 'interference' with the flow of water that 'was given rise to by works constructed or by any other act done or omitted to be done on any land'.
Furthermore, 'interference' with a flow of water is to be read in the context of physical conduct including 'taking, using, polluting, constructing, maintaining' or 'operating'.[55]
In James & Phillip Woollard Pty Ltd v Kinson,[56] Senior Member Vassie held that the respondents interfered with the reasonable flow of water by causing a drain to become blocked by leaving uncompacted fill on their land which resulted in silt finding its way into the drain. 'Interference' was found because the respondents hampered or hindered the reasonable flow of water, in a physical sense.
In considering a claim against a council under the Act's predecessor, the Drainage of Land Act 1975, Justice Murphy indicated that an interference with the flow of water may occur 'by preventing or impeding the natural flow of water off the claimant's land'.[57]
In these cases, the concept of interference with a flow of water connotes physical interference with that flow. Irrespective of whether Mr Henderson's conduct was reasonable or not, his refusal to contribute to the remedial/replacement costs did not physically prevent Ms Cox from complying with her statutory duty to arrange for that work to be carried out on her property.
While the term 'interference' can apply in a non-physical context (for example, where someone hampers or interferes with another person's financial affairs) that is not the context in which this term is used under s 16(2) of the Act.
Given that I have found that Mr Henderson is not a person who 'interfered' with the flow of water, as that term is understood under s 16(2) of the Act, he is not liable to pay damages to Ms Cox for the expenditure that she incurred at various times to unblock the drain.
Accordingly, I will dismiss Ms Cox's counterclaim.

[42]

In his closing submissions, Mr Henderson stated that, if I decided to order that he should contribute to the cost of replacing the earthenware section and boundary trap, then he agreed to orders requiring him to lodge funds into the trust account of Ms Cox's solicitors to contribute towards moneys to be paid to the selected contractor(s).
My orders take account of this proposal.
At the end of the third day of the hearing, the parties agreed that, prior to delivery of these reasons, I would request updated costings for the removal and replacement of the earthenware section and boundary trap and any necessary, associated work. The parties could either agree on the proposed quotations or, if they disagreed, each could provide their quote(s) together with written submissions.
The Tribunal made that request by email on 11 November 2024. The parties provided their responses by various emails on 29 November and 3 December 2024. The parties did not reach agreement.
By email dated 29 November 2024, Mr Henderson provided quotations totalling $16,329.00 from:
1. DJS dated 27 November 2024 to remove and replace the earthenware section and boundary trap for the sum of $14,999.00, GST inclusive (quote no. 98025); and
2. Steve's Architectural Restorations dated 19 November 2024 for consequential work in reinstating brick pavers for the sum of $1,330.00, GST inclusive.
By email dated 3 December 2024, Ms Cox's solicitors provided quotations totalling $17,948.00 from:
1. C&R dated 2 December 2024 to remove and replace the earthenware section and boundary trap for the sum of $15,660, GST inclusive (quote no. 927); and
2. Raw Grit dated 10 November 2024 for consequential work in reinstating brick pavers for the sum of $2,288.00, GST inclusive (quote no. QU-00462).
Mr Henderson provided detailed submissions in his emails dated 29 November and 3 December 2024. Mr Henderson raised a number of technical issues (for example, that DJS provided a 'superior vent layout' and included work 'to replace the boundary lead-off'). As explained during the course of the hearing, in the absence of any reference to an opinion from an independent expert, Mr Henderson's personal submissions on technical issues carry little, if any, evidentiary weight.
Mr Henderson also submitted that representatives of DJS had inspected Ms Cox's property and had 'a proven track record of delivering similar works in the neighbourhood safely, and without any issues or complaints'. In the absence of any supporting evidence regarding DJS's track record, this statement stands as a mere assertion and, again, carries minimal weight.
Mr Henderson noted that his quotes were cheaper than those provided by Ms Cox. Given that the difference between Mr Henderson's quotes and Ms Cox's quotes is $1,619.00, this is not a compelling argument.
Mr Allen submitted that Ms Cox's quotes should be preferred as they were identical to the scope of work agreed to by Mr Henderson on the last day of the hearing and, secondly, whilst the DJS quote was marginally cheaper (by $661), it appeared to exclude the cost of an inspection by the Victorian Building Authority. By email on 3 December 2024, Mr Henderson stated that the DJS quote 'may or may not include a VBA inspection' as the VBA would determine whether an inspection was required.
In my view, it is 'appropriate', under s 19(5) of the Act, that Ms Cox is ordered to carry out the work by engaging her own contractors; namely, C&R and Raw Grit.
For the reasons outlined above, under reg 19(2) of the Regulations, Ms Cox is required to maintain the combined drain located on her property and keep it in good working order. This is an onerous obligation as it requires Ms Cox to ensure that the combined drain operates in a 'hygienic manner' and is not subject to 'any damage' that permits sewage to leak from the drain.
Accordingly, unless there is a compelling reason to the contrary, Ms Cox should be given her choice of contractor so that she can be more confident that she will comply with these obligations.
There is little difference in substance between the scope of work as proposed by Mr Henderson and as proposed by Ms Cox. There is only a marginal difference in price. Accordingly, matters of scope and price do not persuade me that Mr Henderson's proposal should be preferred.
In his submissions dated 29 November 2024, Mr Henderson stated:

[44]

Given the history of the relationship between Mr Henderson and Ms Cox over the years (not just in relation to the subject-matter of this proceeding), I have no confidence that the parties will cooperate in relation to the carrying out of the works, or the cost of any additional work. Accordingly, I will not make any order granting Mr Henderson access to Ms Cox's property during the time when the works are carried out, or at all.
Essentially, Mr Henderson's case was that Ms Cox was solely responsible for carrying out the remedial work to the combined drain. He has been successful in that respect. Accordingly, Mr Henderson has no role to play while C&R and Raw Grit are carrying out the works on Ms Cox's behalf. That remains Ms Cox's responsibility under the Regulations.
However, given that I have held that Mr Henderson is liable to pay half the cost of that work, I will permit him to arrange for duly qualified consultants to inspect the remedial works on his behalf after completion of the whole of the works, if he wishes to do so.
Mr Henderson also proposes that, if additional works are required, the parties should reach agreement prior to commencement of the additional work. Consistent with my findings above, and with Mr Henderson's own case, as Ms Cox has the obligation to carry out the remedial work on her property in compliance with reg 19(2) of the Regulations, she may decide that further work is required. I will include an express order that, if Ms Cox incurs additional unforeseen costs, she has liberty to apply for orders that Mr Henderson contribute towards those additional costs. Of course, rather than returning before this Tribunal, the parties are encouraged to reach agreement as to sharing any additional costs.
I therefore make the orders referred to at the commencement of these reasons.
Given that Mr Henderson is self-represented, it is necessary briefly to outline what an order granting 'liberty to apply' means at the end of a final hearing.
The orders above as to the respective rights of the applicant and the respondent are final orders; they cannot be revisited or changed by this Tribunal. Both parties were given the opportunity to present their case, and so the determination of the Tribunal is binding upon them.
An order granting 'liberty to apply' means that the Tribunal may make further orders which are necessary to give full effect to the primary judgment; for example, where facts have arisen since the orders were made, or where an outstanding issue needs to be addressed. These further orders are directed towards, and limited to, the machinery needed to implement the Tribunal's decision in this proceeding; sometimes described as 'working out the order'.[58]

Henderson v Cox

At a glance

Court

Decision date

Source

Judgment (74 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (3)

Henderson v Cox (Building and Property) [2024] VCAT 1196 (15 December 2024)