1. Injunction granted 10 July 2007 as modified by order 12 September 2007 is dissolved.
2. The respondent must forthwith pay the applicants the sum of $1,045.
3. The respondent is restrained whether by herself, her servants or agents or otherwise howsoever from causing any unreasonable flow of water from her property at No. 30 Wheeler Place, Essendon onto the applicants' property at 32 Wheeler Place, Essendon.
4. Liberty to apply on the question of interest.
5. Costs reserved.

Dr R. S. Sadler of Counsel, instructed by Neil McPhee & Associates

Mr Denis McDonald of Counsel, instructed by Oakfair Lawyers

1. The old Essendon Technical School was located between Buckley Street and Fletcher Street, Essendon. The buildings are now used as a campus for a TAFE college. An area on the eastern site was treated as surplus and sold off for development in the 1990s. The subsequent subdivision saw the creation of two residential streets, namely Wheeler Place and Coleman Mews. Plan of Subdivision No. 3325431U was registered in 1995 creating a number of residential allotments abutting these streets. Lots 4 and 5 on the plan were located at the terminus of Wheeler Place which formed a cul de sac running initially north from Buckley Street then turning 90o to the west until its termination at the frontage of these two allotments. Mr & Mrs Kopitschinski who are the applicants in this proceeding were registered as joint proprietors of an estate in fee simple in Lot 4 on 16 June 1995. They had a house built which they occupied in 1997.
2. Immediately to the north of the northern boundary of Lot 4 is Lot 5, the registered proprietor of whom was Dai Ling Huang as from 11 May 2001, now known as Ms Tracy Song. She is the respondent in this proceeding. She purchased a 'spec' house which had been erected on the property prior to her purchase.
3. These two allotments are of relatively modest size. Lot 4 is 412 sq m and Lot 5 is 373 sq m., they share a boundary 27.98m long.
4. Mrs & Mrs Kopitschinski on the one hand and Ms Song and her partner Dr Eric Chu who reside in the two houses are not on speaking terms. When the Kopitschinskis proposed that the dispute which brings them to the Tribunal should be the subject of a mediation, Ms Song was prepared to enter the idea only on the footing that the parties were to be situated in separate rooms. Mercifully I was not required to investigate the history of the bitterness between the parties which pre-exists the present dispute.
5. At the northern boundary of the Kopitschinski's property which is known as No. 32 Wheeler Place is built a brick garage which is directly to the front or eastern boundary of the allotment facing into Wheeler Place and hard on the northern boundary of No. 32. Immediately to the north of the brick garage is a small triangular garden bed serving as the front garden for Ms Song's house at No. 30. The builder who erected No. 30 included as part of its appointments a sprinkler system supplied from a garden tap fitted with a timer mechanism. The garden tap was located at the far side of the driveway and a hose passed from one of the twin outlets from the timer mechanism under the driveway to supply the sprinkler system on the triangular garden bed.
6. Some time in late 2006 with the imposition of more stringent water restrictions in metropolitan Melbourne, Ms Song and her partner Dr Chu, decided to replace the sprinkler system with a 'drip' system. The garden bed had become a wasteland and they wanted to establish it as a proper adornment to their house. Both Ms Song and Dr Chu said that they approached a number of gardeners none of whom proved entirely satisfactory. A husband and wife team trading as 'Soul Open Botanicals' were engaged to do some work including the conversion of the sprinkler system to a dripper system during the time that both Ms Song and Dr Chu were away overseas during the summer of 2006-7.
7. Later that summer on 25 February 2007 during Melbourne's long running drought, Mr Kopitschinski says he noticed wet soil adjacent to the southern wall of his house. This wall is on the far side of No. 32 from its boundary with No. 30. The house on No. 32 at its frontage to Wheeler Place is separated from No. 30 by the brick garage which has a concrete slab floor. Mr Kopitschinski says he noticed that several of the bricks in the southern wall were wet to the touch. Given the dry summer which was drawing to a close, Mr Kopitschinski feared that a water pipe within his house may be leaking. He investigated the sub-floor area where he found:

A large area of very wet soil ... extending from the north side of the house all the way across to the brick wall at its south side.

1. He found several pools of water around the base of the brick piers which were the basis for his house and:

A continuous trickle of water flowing from a northerly direction towards the southern side of the sub-floor area following the natural fall of the ground ...

1. The ground surface in the area of Nos. 30 and 32 falls approximately 2m from the north-east (the front of No. 30) to the south-west (the rear of No. 32). At the frontage of the two allotments at the boundary No. 30 appears to be approximately one house brick's depth lower than No. 30.
2. The following day, 26 February, Mr Kopitschinski found the same conditions in the sub-floor area with no improvement. As a result he engaged Mr D'Aluisio, a waterproofing contractor carrying on business as 'Alldry Damp Control'. Mr D'Aluisio was a relatively distant relation by marriage being married to Mr Kopitschinski's niece. The following day, Mr D'Aluisio began his investigations at No. 32. Mr D'Aluisio had the assistance of his associate Mr Shane Torr who joined him some time after Mr D'Aluisio's initial arrival. Mr D'Aluisio carried out an excavation in the sub-floor area at the north-west corner. According to Mr D'Aluisio he could see 'water slowly, but continuously flowing from an easterly direction following the north facing wall ...'. According to Mr D'Aluisio:

Following this wall in an easterly direction toward the wall retaining the west end of the garage slab, I found the soil adjacent to the wall to be quite wet, as was the soil adjacent to the brickwork of the west facing, and south facing retaining walls of the garage slab, and for some distance into the sub-floor space.

1. Mr D'Aluisio checked pipes in the sub-floor area but could find no leaks. A check of the water meter for No. 32 showed that no water was flowing through. Mr D'Aluisio said that he found no evidence of excessive water at the garden of No. 32. Mr Torr double checked the investigations which Mr D'Aluisio had made.
2. At about 3 pm Mr D'Aluisio and Mr Torr in company with Mr Kopitschinski went next door to No. 30. There was no front fence and so they were able to enter the property via the driveway which is to the north of the triangular garden bed described above. Mr D'Aluisio said that he found this area to be:

Heavily saturated with water. I also found that the watering system in this garden bed was steadily applying more water to the soil, in breach of the water restrictions in force at the time.

1. Mr D'Aluisio and Mr Torr then checked the water meter for No. 30. According to Mr D'Aluisio this meter 'was registering a steady and continuous flow of water through the property'. He said that the timer mechanism on the garden tap 'was set to the permanently "on position" allowing an uninterrupted flow of water through it'.
2. Ms Song was at home at No. 30. She said that she was alarmed to see the figures of three men 'lurking' in the garden outside. She opened her front door and stepped out. According to Mr D'Aluisio he pointed out the wet garden bed and the water system dispensing water and:

Informed her that excess water from her garden bed had found its way into her neighbour's property causing a large area of the sub-floor space under the house to be flooded.

1. According to Mr D'Aluisio, Ms Song asked if the flow had caused any damage to her neighbour's house. He says that when he pointed out to her that the watering system was still operating, she replied 'the gardener must have left it turned on'. Mr Torr then turned off the garden tap, finding that no further water flow registered on the meter.
2. For her part Ms Song said she was upset and confused when she saw three men in her front garden. She does not recall saying 'the gardener must have left it on'. She says she disputed the allegation that the soil in the garden bed was super-saturated with water. She said she did see some water emanating from the dripper system and agrees one of the three men checked the water meter.
3. The following day, 28 February, the Kopitschinskis wrote to Ms Song, referring to the events of the previous day. The letter stated:

Given the volume of water gathered underneath my house, this tap has probably been running for several weeks, if not months.

1. The letter said that the shutting off of the tap at the front of No. 30 had led to a:

Significant reduction in the amount of water in the trenches that had been dug and less water in the pools previously observed. Clearly this is confirmation of the source of the problem.

In order to ensure that this situation will not recur in the future you will need to arrange for someone specialising in structural waterproofing to install an effective waterproof barrier along the full length of my garage wall, and a sub-soil drainage system in the garden bed, so that all water originating on your property is fully contained, or properly channelled into the stormwater drains on your property.

1. Mr Kopitschinski said that he would advise of the cost of the inspection carried out by Alldry and concluded:

If any structural damage, requiring remedial work to be undertaken, is eventually discovered I will inform you of its existence and the cost involved in making the necessary repairs.

1. Mr Kopitschinski said that since 27 February he had made regular inspections of the sub-floor of his house and

Noted a gradual, but continuous reduction of the area affected by the flooding. Some areas of soil appear to have completely dried out.

1. Mr Kopitschinski sought reimbursement for a bill for $495 which he had paid to Alldry Damp Control for their services in investigating his problems. He paid another bill for $550 to BSS Design Group for an inspection carried out by Mr Ralph Arends as to the structural effects on his house of the flooding. Ms Song did not reimburse these amounts. She referred the Kopitschinskis to her solicitor. Attempts to arrange a mediation through the Dispute Settlement Centre of Victoria proved abortive. Mr Kopitschinski's view was that Ms Song simply declined to negotiate. Ms Song said that she was willing to engage in a mediation with the parties in separate rooms but it was difficult to arrange a date having regard to her overseas travel plans. With liability not admitted and reimbursements not made, mediation attempts proving abortive Mr and Mrs Kopitschinski filed the application commencing this proceeding on 3 July 2007. At the same time they sought urgent injunctive relief. The matter came on for hearing before Senior Member Davis on 10 July. With the Kopitschinskis giving the usual undertaking Mr Davis granted an interlocutory injunction restraining Ms Song from 'watering her garden bed'. He gave directions for the hearing on 11 October 2007. The matter came on before me on 12 September 2007 at Mr Kopitschinski's request and I modified the interlocutory injunction so as to permit Ms Song to water her garden bed:

By hand held hose fitted with a trigger nose and in strict compliance with watering restrictions announced from time to time by the Government of Victoria.

1. The hearing came on before me on 11 and 12 October.

1. The Kopitschinskis acting for themselves filed a statement of claim seeking the following relief:
   1. An injunction restraining the respondent from continuing to allow water to flow onto our property.
   2. An order requiring the respondent entirely at her expense, to have installed by a specialist waterproofing installer, under the supervision of a qualified building inspector, an effective waterproof barrier below ground along the length of our garage wall adjoining the garden bed which would prevent the flow of water from her land onto our land.
   3. An order requiring the respondent entirely at her expense to permanently remove all of the trees planted in the garden bed to remove the risk of damage from their roots to the adjoining brick wall and footings.
   4. An order requiring the respondent to reimburse to us in full plus interest all of the costs we have been forced to incur in establishing the source of water flooding the sub-floor area of our dwelling. The cause of the flow of water onto our property, and in obtaining a specialist assessment of the impact of this unreasonable flow of water has had and is likely to have on respectful integrity of our dwelling in future.
   5. Such further or other remedies as the Tribunal sees fit.
2. Shortly before the hearing the applicants retained Neil McPhee and Associates to act for them and were represented at the hearing by Dr Sadler of Counsel. Dr Sadler broadly maintained his clients' application for the relief sought in their statement of claim withdrawing however, the claim for relief relative to the trees. He said his clients reserved the rights to take this matter up elsewhere. He also said that the relief should not be regarded as seeking the construction of a permanent barrier to protect No. 32 from natural rainfall falling on No. 30 as distinct from water from other sources. Dr Sadler added one piece of relief which he said was sought under the 'further or other' relief paragraph, namely $1,000 damages which he described as a 'nominal' award to compensate for the Kopitschinskis 'subjective experience of past discomfort or inconvenience'.

1. I have no hesitation in accepting the broad thrust of the applicant's factual case, namely that the inundation of his property at No. 32 was caused by excessive watering of the small garden plot at No. 30.
2. Ms Song and Dr Chu say that whilst they were on holidays in the Christmas New Year period no watering was undertaken and many plants had died as a result. Both Ms Song and Dr Chu said that control of the watering system was left entirely to Dr Chu. He says he operated it strictly in accordance with the then current Level 3 water restrictions operating in metropolitan Melbourne. Dr Chu said the admitted fact that the timer switch was shown in the 'on' position when Messrs Kopitschinski, D'Aluisio and Torr arrived on the afternoon of 27 February indicates nothing different. The two outlet pipes from the timer have brass buttons on them. Dr Chu said he left the timer permanently in the on position and controlled the outflow of water with the brass button on the relevant outlet. Dr Chu said he found the timer mechanism itself difficult to manage and overrode it by this means. In written witness statements which Ms Song and Dr Chu adopted as their evidence, they said that Dr Chu upon return from overseas watered the garden plot as extensively as the Level 3 water restrictions allowed. In his viva voce evidence, Dr Chu said that this was an exaggeration, that this was what Ms Song had asked him to do but in fact he had watered the area rather less. Ms Song's Counsel, Mr McDonald drew attention to rainfall records which showed falls of up to 13mm of rainfall in the days prior to 27 February.
3. I found the evidence of Mr Kopitschinski more convincing. He was obviously a careful and assiduous observer. The evidence of Ms Song and Dr Chu was characterised by vagueness and lack of detail. Ms Song conceded that there was water emanating from the dripper system at 3 pm on 27 February which accords with the evidence of Mr Kopitschinski and Mr D'Aluisio. It is entirely inconsistent with the evidence of Dr Chu which would have it that in obedience to the water restrictions he had turned off the water flow prior to going to work on the 27th. Again, the evidence of Mr D'Aluisio that he observed the water meter at No. 30 registering a flow of water is partially corroborated by Ms Song's evidence that she saw Mr D'Aluisio look at the water meter. Mr D'Aluisio gave his evidence in a straightforward and non-evasive manner. Even although he is a distant relation of Mr Kopitschinski by marriage I accept him as substantially independent and an honest witness and an accurate observer.
4. Aside from any question of the inherent credibility of witnesses the interpretation put by the applicant is the more plausible. The photographs produced by Mr Kopitschinski show an extensive saturation in the sub-floor area of No. 30 with distinct boundaries between the saturated and dry areas. It is inherently improbable that two episodes of no more than moderate rainfall could have produced this effect. Again, Mr Kopitschinski's evidence of a steady pattern of drying out in the effected areas following the drippers' being turned off also supports his interpretation of events. Mr McDonald on behalf of Ms Song called evidence from Mr Wadsworth a qualified building surveyor. Mr Wadsworth said 'it is not conclusive that the alleged flooding at No. 32 arose in the small garden bed at No. 30'. He said that other causes may have been involved such as run-off from the street, leaking sewers or water mains and so forth. Needless to say in a civil proceeding such as this my findings of fact are to be made on the balance of probabilities not upon the basis of 'conclusive' proof or proof beyond a reasonable doubt. The other matters raised by Mr Wadsworth are no doubt possibilities but in the absence of any evidence supporting them they scarcely rise above the level of speculation. For instance, there would not have been a continued pattern of drying off if the cause of the inundation were a leaking drain or sewer. My site inspection even without the taking of levels in the street area or the conduct of any water tests indicated that a relatively small level of the street immediately adjacent to Nos. 30 and 32 could conceivably catch and direct water into No. 32. The largest area of the street however slopes away from these properties. Moreover, both Nos. 30 and 32 have stormwater grates which would tend to intercept any run-off from the street. I am fortified in my acceptance of the applicants' case on these matters by the evidence of water usage at No. 30. When reworked to allow for the lengthy absence of both Ms Song & Dr Chu they reveal a dramatic upswing in water usage at the relevant time.
5. Ms Song denied saying 'the gardeners must have left it on'. Neither side sought to implicate the 'gardeners'. Dr Chu said he was in control of the operation of the dripper system. Accordingly, the flow of water complained of was caused by Dr Chu's turning a dripper system on and depressing the brass button to enable a flow to occur and not shutting the system off when he should have. In the circumstances it is unnecessary for me to attempt to make any finding as to how long the system was operating.

1. The question of the liabilities arising out of flows of water in Victoria is dealt with by Section 16 of the Water Act. Since I will need to make extensive reference to this section for a variety of purposes I take the liberty of setting it out in full.
   1. Liability arising out of flow of water etc.

(a) there is a flow of water from the land of a person onto any other land; and

(ii) damage to the property (whether real or personal) of any other person; or

(iii) any other person to suffer economic loss- the person who caused the flow is liable to pay damages to that other person in respect of that injury, damage or loss.

(a) a person interferes with a reasonable flow of water onto any land or by negligent conduct interferes with a flow of water onto any land which is not reasonable; and

(ii) damage to the property (whether real or personal) of any other person; or

the person who interfered with the flow is liable to pay damages to that other person in respect of that injury, damage or loss.

(3) If the person who caused, or interfered with, the flow (as the case requires)-

(a) is the servant of another person and acted in the course of the servant's employment; or

(b) is the agent of another person and acted within the scope of the agent's authority-

that other person is liable to pay damages in respect of the injury, damage or loss.

(4) The existence of a liability under subsection (3) does not extinguish the liability of the servant or agent under subsection (1) or (2), as the case requires.

(5) If the causing of, or the interference with, the flow (as the case requires) was given rise to by works constructed or any other act done or omitted to be done on any land at a time before the current occupier became the occupier of the land, the current occupier is liable to pay damages in respect of the injury, damage or loss if the current occupier has failed to take any steps reasonably available to prevent the causing of, or the interference with, the flow (as the case requires) being so given rise to.

(6) The existence of a liability under subsection (5) extinguishes the liability under subsection (1) of the person who caused the flow or the liability under subsection (2) of the person who interfered with the flow (as the case requires).

1. Section 17(1) of the statute provides, inter alia:

A person does not incur any civil liability in respect of any injury, damage or loss caused by water to which Section 16 or 157 of this Act or Section 74 of the Water Industry Act 1994 applies except to the extent provided by this Act.

1. Section 15 creates a civil liability for unauthorised taking or use of water or for the carrying out of unauthorised works and Section 147 of the Water Act and Section 74 of the Water Industry Act deals with the liability of water authorities and licensees for outflow of water from their works. Section 18 of the Act specifically saves liability at Common Law for the outflow of water from a private dam. The effect of this combination of provisions is that putting to one side the situation of water authorities and licensees under the Water Industry Act and also private dam, a person is not subject to any civil liability for the flow of water from one piece of land onto another except in accordance with the terms of Section 16.

1. For many years it was thought that an owner of lower land was obliged to receive on his land all surface water which flowed naturally onto it from higher land. This was thought to have been established by a decision of the Judicial Committee of the Privy Council in Gibbons v Lenfestey (1915) 84 LJ (PC) 158. The existence of any such legal principle in Australia was rejected by the High Court of Australia in Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12.
2. When the law as to the drainage of land was under review following the recommendations of a Joint Select Committee of the Victorian Parliament one of the principles advocated in the Joint Select Committee's report was the re-establishment of a so called 'free flow' principle. The Drainage of Land Act 1975 included Section 7 which stated:

No civil action, suit or proceeding shall lie against any person in respect of causing or permitting by that person to of any waters to flow onto the land of any other person in a reasonable manner.

1. In moving an amendment to the Drainage of Land Act 1975 in the form of the Drainage of Land (Amendment) Bill 1984 the Minister for Water Supply, the Hon. D.R. White, said of the free flow principle:

The statutory establishment of this principle was made necessary by a 1962 High Court decision which overturned the basis of common law which had applied in Victoria for some 60 years.

Hansard Legislative Council 28 February 1984 Volume 373 1600 Column 1

1. The Water Act 1989 Part 2 of which replaced the Drainage of Land Act contains no positive statement of the 'free flow principle' analogous to Section 7 of the Drainage of Land Act. The same principle is clearly exemplified however by the provisions of Section 16 rendering persons causing unreasonable flows of water from one person's land onto another causing damage liable to pay damages but conversely imposing a liability for damages upon those who interfere with reasonable flows of water from one person's land onto another. The scheme is completed by the provision to be found in Section 18 excluding any other forms of civil liability beyond in circumstances such as the present those set out in Section 16.

1. According to Section 20 of the Water Act in determining whether a flow of water is reasonable or unreasonable one must consider 'all the circumstances' including certain specified matters. I set out most of the section below for ease of reference:
   1. Matters to be taken into account in determining whether flow is reasonable or not reasonable

(1) In determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including the following matters-

(a) whether or not the flow, or the act or works that caused the flow, was or were authorised;

(b) the extent to which any conditions or requirements imposed under this Act in relation to an authorisation were complied with;

(c) whether or not the flow conforms with any guidelines or principles published by the Minister with respect to the drainage of the area;

(d) whether or not account was taken at the relevant time of the likely impact of the flow on drainage in the area having regard to the information then reasonably available about the cumulative effects on drainage of works and activities in the area;

(e) the uses to which the lands concerned and any other lands in the vicinity are put;

(ii) collected, stored or concentrated on that land; or

and if so, for what purpose and with what degree of care this was done;

(h) whether or not the flow was affected by any works restricting the flow of water along a waterway;

(i) whether or not the flow is likely to damage any waterway, wetland or aquifer.

(3) An Authority that has a waterway management function in the area to which a proceeding before the Tribunal relates may make a submission to the Tribunal on the matters specified in paragraphs (c), (d) and (i) of subsection (1).

1. Reference to the legislative history of Part 2 of the Water Act and its predecessor, the Drainage of Land Act 1975 will show that the focus of the statutes was upon the drainage issues which arose in broadacres rural properties. Much in Section 20 is therefore of limited relevance to the issues which arise in a closely settled suburban environment such as exists around Nos 30 and 32 Wheeler Place.
2. Based on my factual findings I have no hesitation in concluding that the flow of water complained of here was unreasonable. The most important matters to consider in reaching a conclusion such as this, according to Section 20(2) are those set out in the first four paragraphs of sub-section (1). For the purposes of paragraph (a) the word 'authorised' is defined in Section 3 of the Act to refer to statutory authorities, licences and the like. There is no evidence of any statutory authorities, licences or the like in the present situation and no evidence that any was required, hence paragraph (a) seems to be beside the point in the present situation. Similarly paragraph (b) and paragraph (c) since there appear to be no guidelines that have been drawn to my attention relative to drainage in Essendon published by the responsible Minister. Again, paragraph (d) seems to be beside the point, seeming to have reference to far larger works, operations and flows than have occurred in the present case. What seems to me here to be the most important consideration of those expressly enumerated in Section 20(1) are those set out in paragraph (g). The water in question was brought onto the land through the public water supply reticulation system and disbursed upon the surface for the purposes of watering. On the findings which I have made this process was done excessively and without care both having regard to the statutory rationing controls which were in force and due care for the interests of a neighbour whose land was immediately adjacent to the area being watered. Hence, my conclusion that the flow was unreasonable.
3. According to the evidence of Ms Song and Dr Chu it was the latter who was in control of the dripper system, hence in a physical sense it was he and not Ms Song who should be regarded as having caused the unreasonable flow of water. Given that according to the account of both of them he was managing the watering at the request of and on behalf of Ms Song, he should be regarded as her agent, hence Ms Song would be liable for his actions under Section 16(3) of the Water Act.

1. It was reasonable and proper for Mr Kopitschinski to incur the outlays that he did both to Alldry to ascertain the source of the inundation on his land and to a building consultant BSS to ascertain what damage if any had been done to the structure of his house in the circumstances. I accept the submission made by Dr Sadler that the unreasonable flow of water from No. 30 onto number 32 has in terms of Section 16(1) of the Act caused Mr Kopitschinski to suffer economic loss in the form of these outlays and hence the loss is recoverable.
2. The claim for $1,000 'nominal' damages is however more problematic. Dr Sadler relied in support of this claim upon passages from the Laws of Australia Torts Volume 33.7 [39] page 389 and a decision of Murray CJ in McKenzie v Powley [1916] SALawRp 1; [1916] SALR 1 where His Honour noted that in earlier times nominal damages in the sum of 40 schillings had been awarded in nuisance cases for the injury to the plaintiff's 'right to live in a certain degree of comfort in his own dwelling house'.
3. Section 19(8) of the Water Act specifically denies the Tribunal any jurisdiction to award damages for personal injury in this class of matter. Mr McDonald on behalf of Ms Song submitted that the $1,000 damages sought here were damages for vexation and hence for personal injury.
4. The provisions to which I referred in the section on the 'free flow' principle show that these provisions in the Water Act are a code for liability at least in non-personal injury matters for flows of water. No damages may be awarded except in accordance with the express provisions of the statute. Section 16(1)(c) which is the relevant provision as to liability for damages here appears to create the following liabilities:

1. The effect of Section 19(8) is that a claim for injury to a person would have to be brought in Court and not in the Tribunal. The Tribunal's jurisdiction is therefore confined to the second and third classes of damage which may be compensated for. The $1,000 damages claim being neither an award of damages for economic nor for damage to property is therefore not available and this claim must be dismissed.

1. Dr Sadler sought a mandatory order against Ms Song requiring her at her expense and on her land to erect a barrier to intercept all flows of water from the triangular garden bed onto No. 32. He asked a number of witnesses including Mr D'Aluisio of Alldry, Mr Arends of BSS (Mr Kopitschinski's building consultant and a qualified architect) and Mr Wadsworth how much this barrier would cost. Costings seemed to put the outlay in the region of $3,000. Dr Sadler submitted that this outlay was necessary to protect his clients and having regard to the relatively moderate sums of money involved was a more than reasonable demand on their part.
2. Until final hearing the Kopitschinskis represented themselves. At a directions hearing shortly prior to the final hearing Mr Kopitschinski informed me that he and Mrs Kopitschinski sought the construction of the barrier to protect them not only from flows of water from the garden bed at No. 30 caused by watering but any flows caused simply by ordinary rain. This element of the applicants' case was not pressed by Dr Sadler.
3. In consideration of these matters the free flow principle discussed above becomes important. In my view flows of water from this garden bed resulting simply from rain are reasonable flows and not unreasonable flows. As a matter of negative deduction from the provisions of the Water Act it is incumbent upon the Kopitschinskis as the owners and occupiers of No. 32 to accept such flows onto their land. Prevention of any adverse effects or mitigation of those effects is the responsibility of the Kopitschinskis not of Ms Song. The Kopitschinski's residence in the form of its brick garage is built right to the boundary. If there is a risk of damage to that property from natural flows then it was a fault in design and workmanship on the part of those who constructed the Kopitschinski residence not to provide protection. Mr Arends, the applicants' building consultant conceded in cross-examination that the assertion in his report that the Building Code of Australia specifically required Ms Song to protect the applicants' house from water flows by drainage on her property was unfounded.
4. I should add that upon the evidence before me there is in my view no threat to the Kopitschinski residence from ordinary and therefore reasonable flows from No. 30. I have already noted Mr Kopitschinski's own evidence that the effect of the areas commenced a process of continuous drying once the drip system was rendered inoperative. Moreover, Mr Arends agreed that since he detected no damage to the structure of No. 32 there was no reason to conclude that the phenomenon observed in February 2007 was other than an isolated incident. If natural flows had been creating inundations around the footings of No. 32 over a period of years then the structure would have suffered damage already.
5. The application for a mandatory injunction therefore fails subject to what I say below as to a prohibitory injunction.

1. The Kopitschinskis seek in effect injunctive relief to protect them from any repetition of the February inundation. This is the substance of the first head of relief sought in their application. The findings that I have made show that what happened in February this year was an isolated incident. The Kopitschinskis say 'it may happen again, we need to be protected'. In Grasso v Love [1980] VicRp 20; [1980] VR 163 the Full Supreme Court showed that to obtain a clear qua timet injunction, that is, an injunction prohibiting prospective conduct in the future, a plaintiff or applicant had to prove that there was a real possibility not only that the respondent's activities were imminent, a plaintiff also had to prove that the threatened actions would cause, if carried out, substantial damage to the applicant.
2. In the present case the respondent has offered no assurances as to what may happen in the future. Dr Chu who seems in practical control of these matters said that if there were no injunction affecting Ms Song, he would have to consider what course he would follow. In circumstances where the Kopitschinskis had every reason to feel aggrieved, Ms Song has continued to deny liability, offered no assurances as to what might occur in the future and has called and relied on evidence which for reasons previously explained I have found simply implausible and which I have rejected. Mr Arends said and I did not understand his evidence to be challenged, that repeated inundations could damage the structure of No. 32. In the absence then of injunctive intervention there is an imminent risk that the respondent would repeat the unsatisfactory behaviour which has brought about this proceeding and might thereby inflict substantial damage on the Kopitschinskis. The relatively onerous requirements laid down by the Full Court in Grasso v Love are therefore made out. Accordingly there will be a prohibitory injunction permanently restraining Ms Song from causing any unreasonable flows of water from her property at No. 32 Wheeler Place to flow onto the applicants' property at No. 30 Wheeler Place. The form of this injunction necessarily includes what might be regarded as a difficult value judgment, namely whether a particular flow is or is not unreasonable. Nevertheless, this form of injunction is common in common law nuisance matters. In Munro v Southern Dairies [1955] VicLawRp 60; [1955] VLR 332, 339 Sholl J granted an injunction:

To restrain the defendant, by its directors, servants and agents, from causing or permitting on the premises at Grenville Street and Whylis Street, Hampton, on which it now conducts its business, any nuisance (whether by way of smell, noise or flies ...

1. According to the learned editors of Jacobs, McCarthy and Neggo Injunctions, Law and Practice [APX1.650] (Update 0) in cases of nuisance:

Ordinarily, the injunction is framed in such a way as to restrain the respondent from carrying on the impugned activities so as to cause a nuisance to the applicant, rather than prohibiting the activities altogether.

1. Mr McDonald submitted that no injunction should be granted because if Ms Song were to move and sell her property the injunction would not be binding upon any successor in title. There was no suggestion that Ms Song is planning to move. The injunction would clearly be an order in personam rather than in rem as such in accordance with the principles as to res judicatae it would be conclusive as against a successor in title who would be regarded as a 'privy' of Ms Song. Whether in those circumstances the successor could be punished for contempt if he or she knowingly disobeyed the injunction need not concern us now. This is a question for another day upon which I heard no argument. In any event it has never been suggested so far as I am aware that injunctions in nuisance cases for instance should not be granted because of the possibility that a successor in title may become owner and occupier of the land owned and occupied by the defendant.

1. The applicants' application seeks an award of interest on the $1,045 outlay which I have held them entitled to recover from the respondent. No figures were placed before me as to an appropriate amount of interest so I will reserve liberty to apply on that subject.

1. I have heard no argument on the question of costs and so I will reserve it.