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[2026] NSWCA 156
respondent. Leave to appeal granted; the draft notice of appeal in the Red Book at p 99 treated as the Notice of Appeal; appeal dismissed; appellants to pay the respondent's costs.
The appeal concerned factual findings about repeated stormwater overflow between neighbouring properties. The Court of Appeal found that the primary judge had a sound evidentiary basis for concluding that a badly blocked pipe on the appellants' side caused the flooding and damage. The evidence did not establish that the respondent removed a kerb or that his renovations caused the claimed subsidence. The appellants' arguments about the drainage repair order and their statutory cross-claim also failed. Leave to appeal was granted, but the appeal was dismissed and costs were ordered against the appellants.
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2,646 words · generated 07/10/2026
Tang v Tannous [2026] NSWCA 156 concerns repeated stormwater overflow between neighbouring residential properties at Nobbs Road, Yagoona. The appellants, Ya Jun Tang and Manyun Tang, owned and rented out No 2B. The respondent, Charbel Tannous, lived at No 4, on lower ground to the east. The drainage arrangements included an easement over No 2, containing a stormwater pipe, which benefited No 2B. The easement required the owners of No 2B to maintain the drainage system and required stormwater to discharge to the street kerb ([6]).
5 cited instruments linked from this judgment.
Tannous claimed that stormwater escaped from the appellants' land and damaged his property. The District Court accepted that repeated ingress of muddy water caused contamination of the pool, damage to its filtration system, soiling of surrounding tiles and subsidence of pool tiles ([32]-[35]). It found that the stormwater system was almost completely blocked and that, during sustained or heavy rain, water backed up and flowed over the boundary to No 4 ([19]-[20]). The District Court held the appellants liable in nuisance, ordered them to repair and reconfigure the drainage system to accord with the Council-approved plan, and awarded damages of $99,382.01 ([18], [35]-[36]).
The appellants disputed that account. They alleged that Tannous or his contractors removed a boundary kerb while carrying out renovations, and that this caused or contributed to the stormwater entering No 4. They also alleged that excavation, the absence of an adequate retaining wall, or other construction work at No 4 caused subsidence at No 2B. Their cross-claim invoked s 177 of the Conveyancing Act 1919 (NSW) ([10], [14]).
Payne JA addressed six grounds in the written submissions, while pointing out that the draft notice of appeal contained 20 separate complaints grouped as seven grounds and that the appeal material was confusing ([37]-[45]). He nevertheless dealt with the issues raised. The Court granted leave to appeal but dismissed the appeal, with Mitchelmore JA and Harrison AJA agreeing ([132]-[134]).
The central issue was not whether there had been water ingress. The factual dispute was about its cause and responsibility. The Court accepted that the primary judge had relied on expert evidence that the pipe was substantially blocked and deformed. That evidence included evidence from the respondent's experts and one of the appellants' experts. Payne JA said the conclusion that the pipe was almost completely blocked was “inevitable on the expert evidence” ([52]).
The appellants argued that the alleged missing kerb, rather than the pipe, explained the flow. The Court found that their description of the evidence was inaccurate. In particular, the respondent's agreement that most water crossed between points A and B did not amount to a concession that there had been a kerb there, or that its removal caused the problem ([55]). The experts had not jointly found that a missing kerb was the primary cause. They had said that the absence of a kerb in accordance with a design would allow surface water to cross the boundary, a different proposition from finding that a kerb had existed and been removed ([56]).
The appellants' own evidence also weakened their argument. Their expert Mr Smith accepted that, with the pipe compromised, water would still flow over a kerb in the relevant area, even if it were 100 or 150 millimetres high ([58]-[60]). The Court therefore saw no basis to conclude that the kerb allegation displaced the finding about the blocked pipe.
The Court then considered whether the respondent had removed a kerb. It found that the photographs were unclear, the survey contained only a limited “top of kerb” notation, and the witness evidence relied on by the appellants was either tentative or undermined in cross-examination ([78]-[85]). The first appellant accepted that the respondent's fence was next to the concrete downturn rather than built on top of it ([76]-[77]). That mattered because the appellants' explanation for why the respondent would remove a kerb depended partly on the fence installation. Payne JA concluded that the fence would not have been impeded by a kerb and that there was no reliable evidence of removal by the respondent ([72], [87]-[88]).
The Court rejected the challenge to the findings about motive as well. It did not accept that the primary judge had decided the issue solely or primarily because the respondent lacked a motive. Rather, the motive observation was consistent with the other findings about the fence and the evidence. The suggested motive of obtaining a straight fence line was also inconsistent with the photographic material relied on by the appellants ([72], [91]-[95]).
The Court also considered the repair order. The appellants initially argued that access and Council approval created practical or legal obstacles. In reply, they conceded access under the easement and the existence of an outstanding Council order requiring repairs ([99]-[102]). The Court rejected the remaining challenge: the easement allowed access, and Council had issued an order under s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) requiring the drainage system to be reinstated in accordance with the 1995 plan ([102]). The Court also rejected the appellants' reliance on Mr Willows' alternative theory because the primary judge had found it speculative and preferred competing expert evidence ([102]-[103]).
Finally, the cross-claim failed because the evidence did not establish that the respondent's works caused loss of support or the claimed damage. The primary judge had correctly identified the cross-claim as one under s 177, and had addressed excavation, levels, retaining walls and subsidence ([108]-[110]). The experts' conclave found no appreciable change in surface levels adjacent to the boundary, and the Court held there was no error in the primary judge adopting that conclusion ([113]). The theory advanced by Mr Willows was rejected as speculative, while the accepted evidence placed the excavation outside the relevant zone of influence ([122]-[123]).
The judgment does not announce a new rule of law. Payne JA noted at the outset that both parties agreed no issue of law arose for determination, and characterised the appeal as a challenge to detailed findings of fact ([1]). The decision is therefore principally an application of existing appellate practice and the evidence to the particular dispute, rather than a change in the law of nuisance or support of land.
On appellate procedure, the judgment reinforces UCPR r 51.36(2). That rule requires submissions challenging factual findings to identify the challenged findings and the alternative findings sought, with references to the judgment and evidence ([3]). The Court stressed that compliance is not optional, particularly in a fact-intensive appeal. It explained that the rule helps focus the challenge, gives the respondent notice, and assists the Court in locating relevant evidentiary material ([4]-[5]). The practical message in this judgment is that a broad invitation to re-evaluate the record is not a substitute for precise identification of the alleged factual errors.
The judgment also applies established caution about photographic evidence in appellate fact-finding. Payne JA referred to Pledge, Blacktown City Council, Bitupave and Boateng in support of the limitations on photographs, especially when a court is asked to draw conclusions about contested historical conditions ([69]). The decision does not state that photographs are inadmissible or useless. It treats the particular photographs as too unclear or ambiguous to establish the disputed kerb facts ([78]-[80], [120]).
On causation, the judgment applies the primary judge's factual findings that the deformed and blocked pipe was the predominant cause of the damage. It does not formulate a general new test for nuisance causation. Its significance is evidentiary: where expert evidence supports a finding about a drainage failure, and the competing explanation rests on uncertain or speculative material, an appellant must identify a real error in the trial judge's evaluation rather than simply restate the alternative theory ([52], [62]-[65]).
The judgment also addresses the proposed Jones v Dunkel inference. It rejects that inference in the circumstances because the contractors' absence was explained by a failed attempt to contact them. Payne JA referred to Kuhl v Zurich Financial Services Australia Ltd in concluding that the absence was not unexplained ([86]). The decision's point is narrow and tied to the evidence about efforts to contact the witness.
As to s 177 of the Conveyancing Act, the Court confirms the distinction drawn by the primary judge between a common law private nuisance claim and the appellants' statutory cross-claim concerning support of land ([108]). The Court rejected the submission that s 177(8) barred the respondent's nuisance case because the factual finding was that there was no loss of support and that the nuisance arose from inadequate drainage maintenance ([128]-[130]). The judgment does not provide a broad exposition of every application of s 177(8); it resolves the argument by reference to these findings.
At [52], Payne JA states: “To the contrary, the conclusion was inevitable on the expert evidence.” In plain English, the expert material gave the primary judge a sufficiently strong basis to find that the pipe was almost completely blocked. The Court did not regard the appellants' contrary account as establishing error.
At [72], the Court says the fence was “located next to the concrete slab with the downturn and not on top of it.” This finding answered an important part of the appellants' theory. If the fence was beside the slab, the proposed explanation that a kerb had to be removed to install the fence was less persuasive. The Court added that a kerb, if present, would not have impeded the installation.
At [86], Payne JA rejects a Jones v Dunkel inference because “the absence of the contractor from evidence was not ‘unexplained’.” In ordinary terms, the Court was not prepared to treat the failure to call the contractor as supporting an adverse inference when there was evidence of an unsuccessful attempt to contact that person.
At [108], the Court quotes the primary judge's finding that the respondent's claim was in private nuisance and that the appellants' cross-claim was under s 177. This distinction is important to understanding the appeal: the claim about stormwater damage and the statutory claim about support were separate claims with separate factual questions.
At [130], Payne JA says the finding of no loss of support, combined with the finding that poor drainage caused the nuisance, was “a complete answer” to the appellants' argument under s 177(8). In plain English, the Court treated the factual distinction between support-related subsidence and stormwater nuisance as decisive against the statutory-bar argument in this case.
The judgment is most relevant to appeals involving a trial judge's detailed factual findings about the cause of property damage, particularly where the parties present competing expert explanations. It illustrates the kind of record in which a court may uphold a finding that defective or poorly maintained drainage caused repeated water intrusion: expert evidence supported the physical condition of the pipe, the pattern of overflow, and the resulting damage ([19]-[22], [47]-[52]).
It is also relevant where a party alleges that a neighbour's renovations or removal of a boundary feature caused drainage problems or subsidence. Here, the Court examined whether the alleged kerb existed, whether the respondent removed it, where the fence was built, whether ground levels changed, and whether excavation could have affected the adjoining property ([69]-[88], [105]-[123]). The decision shows that an asserted physical alteration must be supported by evidence capable of establishing both its existence and attribution to the other party.
The decision may assist in understanding evidentiary disputes involving old or unclear photographs, survey plans that record limited information, witness recollections, and expert opinions. It does not establish a rule that such evidence can never prove a fact. Rather, it demonstrates the importance of how clear, reliable and connected each piece of evidence is to the precise issue being decided ([78]-[85]).
The judgment is also relevant to appeals where a proposed alternative cause relies on an expert theory whose factual assumptions have not been established. The Court accepted the primary judge's assessment that Mr Willows' theory rested on speculation and preferred other expert evidence about the zone of influence and levels ([62]-[65], [122]-[123]).
Finally, it is relevant to appellate submissions challenging primary facts. The Court expressly criticised the lack of clear alignment between the draft notice of appeal and the written submissions, and the failure to comply with the procedure for identifying challenged findings ([2]-[5], [37]-[45]). The judgment's procedural discussion is especially pertinent where an appeal asks the court to revisit a large evidentiary record.
The supplied judgment contains no later judicial treatment of Tang v Tannous. It therefore does not provide a basis for saying that a subsequent court has followed, distinguished, applied or questioned this decision. The judgment itself cites earlier authorities, but those citations describe the authorities relied on in this appeal, not later treatment of Tang v Tannous.
Within the judgment, the most direct precedential discussion concerns the earlier authorities on appellate fact challenges, photographs and unexplained witnesses. Payne JA refers to Sica v Brophy and Magann in discussing compliance with UCPR r 51.36(2) ([4]). He refers to Pledge, Blacktown City Council, Bitupave and Boateng for caution in using photographs on appeal ([69]). He applies Kuhl in rejecting the proposed Jones v Dunkel inference where the witness's absence was explained ([86]). Those references situate the reasoning within earlier authority, but they do not establish how later courts will treat this judgment.
Any account of post-decision treatment would need to be based on later judgments or another reliable legal source not included in the material provided. No such source is supplied here.
The judgment resolves the appeal on its facts, but the text leaves broader questions unanswered. It does not set out a general test for attributing responsibility for stormwater where water originates partly on upstream properties and partly on the defendant's land. The primary judge found that some water travelled overland from upstream, while concluding that a functioning drainage system would have captured much of it ([20]). The Court of Appeal upheld the result on the evidence without developing a general rule for allocating responsibility in other drainage configurations.
The decision also does not decide when a boundary kerb or similar feature will be sufficient to prevent nuisance, or how responsibility should be divided where both a drainage defect and a physical change to the boundary contribute to water flow. In this case, the alleged removal was not proved, and the expert evidence indicated that water would still overflow with the pipe compromised ([58]-[60]). Those findings made it unnecessary to resolve a more general apportionment question.
The judgment does not establish a comprehensive approach to the use of photographs in fact-finding. It stresses caution and finds the particular images inadequate, but does not define what image quality, context or supporting evidence would make photographs persuasive in another dispute ([69], [78]-[80], [120]).
Nor does the judgment provide a broad interpretation of the statutory duty in s 177 or all the circumstances in which s 177(8) may affect another claim. The Court relied on the specific finding that no loss of support had been established and that the nuisance had a different factual cause ([128]-[130]). Questions about different facts, including a proven loss of support alongside a drainage nuisance, are not answered in the supplied reasons.
Finally, the judgment does not determine what evidence would have been sufficient to prove the alleged removal of the kerb or a causal connection between excavation and subsidence. It decides only that the evidence advanced in this case was inadequate. Its reasoning is consequently strongest as an account of why these particular factual challenges failed, rather than as a universal rule governing every drainage or boundary dispute.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tang v Tannous [2026] NSWCA 156
Hearing dates: 23 June 2026
Date of orders: 4 August 2026
Decision date: 04 August 2026
Before: Payne JA at [1];
Mitchelmore JA at [133];
Harrison AJA at [134]
Decision: (1) Grant leave to appeal;
(2) The draft notice of appeal contained in the Red Book at p 99 to be treated as the Notice of Appeal;
(3) Dismiss the appeal;
(4) Appellants to pay the respondent’s costs.
Catchwords: APPEALS — Leave to appeal — whether the primary judge erred in any finding of fact — whether the primary judge erred in drawing a conclusion that the applicants were the relevant cause of the property damage complained of — no error in the primary judge’s fact finding or conclusions — leave to appeal granted — appeal dismissed
TORTS — Private nuisance — Basis of liability —stormwater travelling over and from one residential property to another — failure of drainage system located on the higher property not disputed —attribution of liability for damage to the lower property due to stormwater runoff — whether the applicants’ failure to maintain the drainage system caused the nuisance — whether respondent caused the nuisance themselves during renovations
TORTS — Right of support — application of s 177 of the Conveyancing Act 1919 (NSW) — whether there was a loss of support — whether the primary judge erred in dismissing s 177 cross-claim — no error found
Legislation Cited: Conveyancing Act 1919 (NSW), s 177
Environmental Planning and Assessment Act 1979 (NSW), s 9.34(1)(a)
Uniform Civil Procedure Rules 2005 (NSW), r 51.36(2)
Cases Cited: Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298
Blacktown City Council v Hocking [2008] NSWCA 144; Aust Torts Rep 81-956
Boateng v Dharamdas [2016] NSWCA 183; 77 MVR 151
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Magann v Trustees of the Roman Catholic Church for the Diocese of Paramatta [2020] NSWCA 167
Nominal Defendant v Clements (1960) 104 CLR 476
Pledge v Roads and Traffic Authority [2004] HCA 13; 78 ALJR 572
Sica v Brophy [2020] NSWCA 181
Tannous v Tang [2025] NSWDC 529
Category: Principal judgment
Parties: Ya Jun Tang (first applicant)
Manyun Tang (second applicant)
Charbel Tannous (respondent)
Representation: Counsel:
M Luitingh (first and second applicants)
M Young SC (respondent)
Solicitors:
Jane Button and Associates (first and second applicants)
Finn Roache Lawyers (respondent)
File Number(s): 2026/00016256
Publication restriction: None.
[This headnote is not to be read as part of the judgment]
The applicants, Mr Ya Jun Tang and Ms Manyun Tang, sought to challenge several factual findings made by Cole DCJ in the New South Wales District Court. The primary judge found the applicants were liable in nuisance for stormwater damage suffered by their neighbour, Mr Tannous, the respondent. The respondent successfully established that damage to his land was caused by the repeated overflow of stormwater from the applicants’ adjacent land, which occupied higher ground. The damage was found to have been caused by a blocked stormwater pipe located on an easement appurtenant to the applicants’ land and which the applicants were required, but had failed, properly to maintain.
The applicants’ defence at first instance rested on two claims:
(i) that the respondent had caused the damage to his own land by removing a “kerb” that had purportedly run alongside the boundaries of the two properties to prevent stormwater overflow, and/or
(ii) a cross-claim made pursuant to s 177 of the Conveyancing Act 1919 (NSW), that the respondent had caused subsidence as a result of renovations to his property, and this subsidence had been the cause of the stormwater overflow onto the respondent’s property. The applicants’ also claimed damages under the cross-claim.
The applicants’ argument that the respondent was causally responsible for the damage claimed in nuisance failed. It was also found that there was no breach of duty under s 177 of the Conveyancing Act and the cross-claim was dismissed. The applicants were ordered to repair the stormwater pipe in accordance with an outstanding order from the Council, and to pay damages to the respondent in the amount of $99,382.01.
The applicants advanced a detailed challenge to numerous findings of fact made by the primary judge.
The Court (Payne JA, Mitchelmore JA and Harrison AJA agreeing) held, granting leave to appeal but dismissing the appeal:
The use of photographic evidence on appeal
(1) The photographic evidence relied on by the applicants was of limited utility in this appeal. [70]
Pledge v Roads and Traffic Authority [2004] HCA 13; 78 ALJR 572; Blacktown City Council v Hocking [2008] NSWCA 144; Aust Torts Rep 81-956; Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298; Boateng v Dharamdas [2016] NSWCA 183; 77 MVR 151 applied.
As to ground 1
(2) The primary judge’s conclusion that the stormwater pipe was almost completely blocked and caused backed-up water to overflow from the applicants’ property onto the respondent’s property, causing damage, was an inevitable conclusion on the expert evidence. [48], [51]-[52]
(3) The evidence which the applicants suggested proved the existence of a stormwater kerb, and its later removal by the respondent, was seriously misstated. Properly understood, the evidence showed no error in the finding of the primary judge that, even if there was once a kerb, the applicants had failed to demonstrate it had been removed by the respondent. [53]-[59]
(4) Her Honour did not err in rejecting the evidence of one of the applicants’ expert witnesses, Mr Willows. Her Honour did not err in preferring the competing expert evidence. [60]-[64]
(5) The submission that a Jones v Dunkel inference should have been drawn in relation to the absence of the respondent’s building contractor was rejected. The absence of the witness was explained in the respondent’s failed attempt to contact that person. [85]
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 applied.
As to ground 2
(6) All of the available evidence supported her Honour’s conclusion that the fence built by the respondent between the two properties was located next to the concrete slab, not on top of it. Her Honour did not err in so finding. [66]-[88]
As to ground 3
(7) Her Honour did not engage in improper reasoning regarding motive. Her Honour’s finding regarding motive (specifically, that the respondent lacked motive to remove the putative “kerb”, making it less likely he did so) was consistent with other findings and was, in any case, plainly correct. [89]-[95]
As to ground 4
(8) The orders made by her Honour that the applicants repair the stormwater drain were appropriately made. The applicants had ready access to the site to carry out the repairs according to an existing easement appurtenant to their land. The easement identified maintenance of the pipe as the applicants’ responsibility. The Council had previously issued an order that the applicants repair the drain and that order remained outstanding. [96]-[103]
As to ground 5
(9) Her Honour correctly characterised the cross-claim as brought under s 177 of the Conveyancing Act. [105], [107]-[109]
(10) Her Honour’s conclusion that the ground levels before and after the respondent’s renovations were generally comparable was consistent with the findings of all the expert witnesses. There was no error in her Honour drawing this conclusion. [106], [110]-[113]
As to ground 6
(11) Her Honour was correct to dismiss the cross-claim. It was not an error to reject the evidence of the applicants’ expert witness Mr Willows, as that evidence was based on speculation. The remaining evidence was contrary to the applicants’ case. [114]-[123]
Residual arguments
(12) No error was shown in the conclusion drawn by her Honour that the blocked stormwater pipe was the predominant cause of the damage to the respondent’s property. The damages attributable were carefully considered, calculated and were consistent with her Honour’s factual findings. [124]-[126]
(13) Contrary to the argument advanced by the applicants, the respondent’s claim in nuisance for stormwater damage was not barred by s 177(8) of the Conveyancing Act. [127]-[129]
PAYNE JA: This is a case involving a challenge to detailed findings of fact made in the District Court of New South Wales: Tannous v Tang [2025] NSWDC 529. The trial, before Cole DCJ, was heard between 5 and 7 May 2025, 10 June 2025 and between 23 and 24 June 2025. Judgment was delivered on 17 December 2025. Both parties agree that no issue of law arises for determination.
To succeed, Mr and Mrs Tang accept that they must make good a challenge to numerous findings of fact made by the primary judge after a 10-day trial. Despite this, the applicants failed to comply with the Uniform Civil Procedure Rules 2005 (NSW) in mounting the myriad factual challenges advanced in various ways during the course of the appeal.
UCPR 51.36(2) requires in every appeal a statement to be filed accompanying the written submissions identifying the findings of fact which are challenged and the alternative findings contended for. The terms of this rule are clear:
(2) Submissions raising any challenges to findings of fact must include a statement in narrative form (not exceeding 2 pages) at the end of the submission setting out only the following:
(a) the findings challenged and supporting references to the judgment of the court below,
(b) the findings contended for and supporting references to the transcript and other evidence in the court below.
“[53] The purpose of this rule, as explained by Beazley JA (as her Honour then was and with whom Giles and Whealy JJA agreed) in Hamod v State of New South Wales [2011] NSWCA 375 at [774], was separately to identify “substantial challenges made to primary facts found by the trial judge”. In South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [135], Leeming JA (with whom Basten and Meagher JJA agreed) remarked that it was:
“ … not for this Court, in order to resolve a factual challenge advanced by an appellant, to trawl through the entirety of the record in order to collect and then evaluate the relevant evidence … Based on the limited submissions advanced on appeal, I would not conclude that the finding of the primary judge is one which should be disturbed on appeal.”
[54] Most recently, in Best v Rosamond [2020] NSWCA 90 at [21], Payne JA (with whom Leeming JA and I agreed) noted the absence of a statement by the appellant identifying the findings of fact which were challenged and the alternative findings contended for, observing that that was an “important omission in the present case as the appellant's challenge essentially rests on overturning numerous findings of fact, including demeanour based credit findings.” See also Namrood v Ebedeh-Ahvazi [2017] NSWCA 310 at [61].
[55] It is of particular importance, especially in a fact intensive matter such as an appeal involving an attempt to set aside a contract under the Contracts Review Act, that the procedure required by the UCPR is adhered to. That procedure does not represent a procedural option. Adherence to it is important for at least three reasons.
[56] First, it serves to focus the mind of the lawyer drafting the submissions on precisely what factual errors are relied upon to underpin the appeal, and whether there is a proper basis in the evidence to challenge that finding or those findings. Secondly, adherence to the rule is important as a means of putting the respondent on fair notice as to the level of detail at which the decision at first instance is to be challenged. Thirdly, adherence to the procedure is vitally important in delineating this Court's task on appeal and assisting the Court with all relevant evidentiary references. The high volume of appellate work conscientiously undertaken by this Court demands that practitioners who should have the closest familiarity with the evidentiary record in a given matter, frequently running to thousands of pages of documentary evidence and transcript, assist the Court with precise and accurate references to that record, as required by the rules, in respect of those findings of primary fact which are sought to be challenged.”
The applicants and the respondent own neighbouring properties in Yagoona. The respondent, Mr Tannous, resides in 4 Nobbs Road, Yagoona which occupies land to the east. The applicants own and rent out the adjoining property, 2B Nobbs Road. No 2B enjoys a drainage easement over the land at No 2 in the same street, which contains a stormwater pipe. The easement requires the applicants to maintain the stormwater drainage system and requires the stormwater to be discharged onto the kerb of Nobbs Road.
The claim at first instance was one in nuisance. In the District Court, the respondent claimed that the applicants had caused damage to the respondent’s adjacent property due to stormwater escaping from the applicant’s land. By a statement of claim filed on 13 March 2023, the respondent claimed the intrusion of water caused the following damage to No 4:
Staining, cracking, and damage to the marble paving;
Damage to the structural integrity of the pool.
The respondent also claimed loss of enjoyment of the land due to:
Water carrying dirt and debris into the pool, requiring it to be drained and cleaned;
Water carrying dirt and debris onto the ground.
The respondent’s essential claim was that the applicants had failed to maintain the stormwater drainage system as designated in a drainage plan approved by the Council, which led to overflows of stormwater onto their land.
The applicants resisted the respondent’s claim by arguing that the respondent had himself caused the stormwater drainage issues by removing a drainage “kerb” that ran at some time in the past between points A and B on No 2B along the fenceline between No 2B and No 4. It was alleged the respondent did so when undertaking renovations in 2017. It was also alleged that the respondent caused the stormwater drainage issues by failing to provide an adequate retaining wall during those same renovations.
A site plan in evidence demonstrated where points A and B on No 2B were located:
Although, as I will explain, the first applicant’s evidence changed in some fairly dramatic ways in the course of the trial, his basic case was that he created a “kerb” by placing brick paving around the boundary of his property (shown in pink below) and had created a separate “concrete kerb” between points A and B (shown in green).
It was the applicants’ case that the respondent removed the kerb feature from the existing concrete downturn at some time in 2017.
By cross-claim filed on 21 July 2023 and amended on 2 June 2025, the applicants sought damages against the respondent pursuant to s 177 of the Conveyancing Act 1919 (NSW), which creates a statutory duty of care related to support of adjacent land, for an alleged breach of a duty of care. It was alleged the respondent:
Experts for both sides gave evidence on the issues. The respondent relied on the evidence of a building consultant, a stormwater engineer, and a structural engineer. The applicants relied on the evidence of a building expert, a structural engineer and a geotechnical engineer.
Lay evidence was given for both sides, particularly on the critical issue of the alleged removal of the kerb between points A and B by the respondent.
The applicants were found to be liable in nuisance for damage to the respondent’s property and were subsequently ordered to remedy the nuisance by repairing and reconfiguring the stormwater drainage system in accordance with the drainage plan approved by Bankstown Council. The applicants were also ordered to pay the respondent damages of $99,382.01. The applicants’ cross-claim was dismissed.
“[59] I accept the evidence … that the stormwater system is almost completely blocked by the deformation and blockages in the pipe and that only a small trickle of water goes through the pipe to the public drainage infrastructure in the street during a rain event. During a sustained or heavy rain event, the pipe rapidly fills and water floods the right of way and flows over the boundary from No 2B and the right of way to the backyard of No 4 in large quantities.”
“[60] I accept that some of the water which travelled from No 2B and the right of way to No 4 did not fall as rain on No 2B and the easement, but travelled overland to No 2B and the easement from one or more upstream properties. However, were the drainage system in the easement working as it was designed to do, much, if not all, of the water entering No 2B and the easement overland would also be captured by Pit 1A (the grating across the right of way) and travel to the street via the stormwater pipe in a rain event up to a one in ten year rain event, though I accept that the area has been built up to a larger extent than it was when the stormwater system was designed, and a larger capacity might now be appropriate on account of the increase in run-off. Certainly, a much larger amount of the water arriving overland from upstream would be drained from the site if the stormwater pipe was not blocked and deformed.”
“[66] It has not been established on the balance of probabilities that the works on No 4 caused the deformation of the stormwater pipe in the easement or the blockage of the pipe.”
“[73] The Tangs lease No 2B to tenants for residential purposes. They do so in the knowledge that the stormwater drainage and disposal system in the easement on the western boundary of the easement has not operated sufficiently well to avoid the entry of a large amount of water into No 4 from No 2B and the easement up to eight times per year since 20 March 2021. The land division plans approved and deposited for No 2 in about 1995 provide No 2B with the benefit of the easement in the expectation that No 2B will be used for residential purposes and that the stormwater disposal infrastructure in the easement will be maintained by the owner of No 2B. The use of No 2B for residential purposes involved the building of a house and the paving of some of the land, including the right of way. This substantially reduced the capacity of the land to absorb stormwater and gave rise to the need to install a stormwater drainage system. In the context of private nuisance, the Tangs’ dereliction in the repair, maintaining and renewing of the stormwater infrastructure is an abrogation of their responsibility to No 4 to provide for adequate stormwater drainage of No 2B in a manner sufficient to avoid damage and loss to No 4.”
“[67] As I have discussed at [17] to [28] above, it was alleged that part of a kerb on the boundary between No 4 and No 2A and 2B was removed by builders during the construction of the improvements on No 4. There is no direct evidence that this occurred. There is no kerb between points A to B on the boundary. There is a kerb between points B and C, with the possibility that fence post construction on top of the kerb may have compromised its ability to keep water on No 2B. However, there is agreement among the engineers that the vast majority of water which has flowed across the boundary from No 2B and the easement to No 4 has flowed between points A and B; from the southwestern corner of No 2B to just north of Pit 1.”
“[26] … It has not been established, on the balance of probabilities, that any such removal occurred at the direction of Mr Tannous or anyone associated with the construction works on No 4. The expression of a belief to the contrary by lay and expert witnesses is speculation and without an evidentiary basis.”
“[68] It has not been established on the balance of probabilities that the flow of water into No 4 from No 2B is attributable to any failure of the plaintiff to comply with a requirement to build a retaining wall or by any action on the plaintiff’s behalf to remove any part of the downturn to the slab on No 4. There is no evidence that any part of the downturn has been removed.”
“[91] I have set out, above, my finding, based upon Mr Appleyard’s opinion, which I accept, that the zone of influence of the excavation for the pool and other improvements on No 4 did not extend into No 2B or the easement by more than 300mm. There is no evidence that any subsidence on No 2B occurred during the construction works. The finished level of No 4 is not relevantly different from the level of No 4 prior to the construction works. It is the evidence of Mr Appleyard, which I accept, that the present conditions on No 4 are not causing any damage to No 2B…”
“[93] Mr Tang accepted, in cross-examination, that some subsidence was occurring on No 2B at least eight years before the redevelopment of No 4 for Mr Tannous. He also accepted that there was some cracking in his driveway prior to the building work at No 4. He thought that the level of subsidence and cracking was consistent with the age of the surfaces at the time. It was clear from his evidence, and I accept, that the subsidence and cracking have worsened over the last eight years.”
Related to the above, Her Honour found that the theory that subsidence caused by the stormwater build-up was more likely than the theory that it was caused during the respondent’s building work.
Her Honour found that although it was a contestable interpretation of the development approval document for No 4 that a retaining wall was required, the applicants had failed to establish that the absence of such a wall caused damage:
“[99] Both Mr Willows and Mr Webster interpreted the Development Approval for the dwelling on No 4 as imposing a requirement for a retaining wall to be built by Mr Tannous. This interpretation of the Development Approval is contestable. In any event, in this matter, to succeed in that part of their claim which concerns the absence of a retaining wall, the cross-claimants need to prove that the absence of a retaining wall on the boundary between the properties has caused damage to No 2B. This causation has not been established on the evidence, on the balance of probabilities.”
Her Honour found that the water ingress events alleged by the respondent had occurred. Her Honour found that many of the marble pavers around the swimming pool at No 4 became discoloured as a result of being deluged with muddy water from No 2B. The respondent did not ultimately pursue the claim that there was a causal connection between the water ingress and the cracks in the pool shell.
The following damage was found to have been caused by the overflowing of the stormwater system, along the western boundary of No 2B and 2A:
“[70] …
- repeated contamination of the water of the pool with muddy stormwater,
- damage to the pool filtration system,
- repeated soiling of the tiles around the pool, and
- subsidence of the pool tiles.”
The dominant cause of the above-mentioned damage was found by the primary judge to be the deformation and the blockage of the stormwater pipe in the easement appurtenant to No 2B. Her Honour noted the precise cause of the deformation was unknown but was caused partly by the presence of objects and materials in the pipe.
Her Honour, after a close analysis of the evidence about the cost of rectification, made a total allowance for the replacement of the tiles at No 4 of $69,489 (varying the amount given in the estimate to account for some “excessive” charges). An amount of $9,393.01 for addressing the work required to clean the pool and its surrounds was allowed. The amount of $8,500 was allowed for the replacement of the pool pump and filter in accordance with the evidence provided and $12,000 in total was awarded to compensate the diminution of amenity since 20 March 2021. The total damages were therefore calculated at $99,382.01.
Her Honour made the following orders on 17 December 2025:
“[106] The following orders will issue:
(1) Judgment and verdict for the plaintiff on the plaintiff’s claim.
(2) The defendants shall forthwith remedy the nuisance caused by stormwater escaping from the defendants’ land at 2B Nobbs Road, Yagoona, New South Wales (the land) and the drainage easement over 2 Nobbs Road, Yagoona, New South Wales (the easement) by the defendants repairing and reconfiguring the stormwater drainage system on the land and the easement so that it is in accordance with the drainage plan being Reference Number 51056/95-29814 dated 16 March 1995 approved and stamped by Bankstown Council in relation to Development Application 2002/95.
(3) The defendants shall pay to the plaintiff damages in the sum of $99,382.01.
(4) Judgment for the plaintiff on the defendants’ cross-claim, and the defendants’ cross-claim is dismissed."
An additional cause of considerable confusion about the applicants’ case in this Court was that the draft notice of appeal annexed to the summons seeking leave to appeal dated 6 March 2026 did not conform to the identified grounds of appeal in the applicants’ written submissions.
In addition, the seven “grounds” identified in the draft notice of appeal were, in fact, 20 separate complaints grouped loosely as grounds for some purposes (but not others). The highly unsatisfactory course taken by the applicants was productive of much additional work.
I will set out, if only for comparison purposes, the grounds of appeal identified in the draft notice of appeal:
GROUND 1 – Kerb Existence and removal
- The primary judge erred at [J21] in finding that there was no benefit in removing the boundary kerb and that, if present, it would not have impeded installation of the fence
2. That finding was not open on the evidence, having regard to:
(a) photographic evidence demonstrating the existence of a concrete kerb prior to redevelopment (Exhibits D2 and photograph in Affidavit of Ooapu Tato p. 142 Court Bundle);
(b) physical saw-cut markings consistent with deliberate removal during the fence works (Exhibit D3 photographs 1 and 2);
(c) alterations to paving consistent with installation of fence posts/cutting back the paving to allow the construction of the fence posts (Agreed issue B9 conclave report p.291 Court Bundle);
(d) evidence of the Respondent and the Appellant concerning kerb removal (in particular Exhibit D1).
- The primary judge ought to have found that a concrete kerb existed prior to redevelopment and was removed during the course of the fence works by the Respondent.
GROUND 2 – Error of Law in the reasoning Process
4. The primary judge erred in law in determining kerb existence and removal by reference to perceived absence of benefit or motive.
5. The error consisted of:
(a) misdirecting the fact-finding task by introducing a speculative consideration not required by the issues for determination;
(b) substituting conjecture for objective assessment of the physical and expert evidence.
GROUND 3 – Causation of Damage to No 4
6. The primary judge erred at [J70]-[71] in finding that damage to No 4 was caused by overflow and deformation of the stormwater pipe.
7. That finding was not open on the evidence, having regard to:
(a) the joint expert conclave findings (Conclave p 10, F1-F5. P. 294-295 Court Book)
(b) evidence of the Respondent regarding overland flow at the location where the kerb had been removed;
(c) evidence of the Appellant of rainwater never crossing an intact kerb;
(d) evidence that the drainage system had functioned for many years prior to removal of kerb.
- The primary judge ought to have found that removal of the kerb materially altered surface water flow onto the Respondent’s property but did not cause any damage.
GROUND 4 – Order Requiring payment for rectification of paving
9. The primary judge erred at [J86] in ordering the Appellants to pay for rectification of the Respondent’s paving, a sum of $99,382.01.
10. The order was made in circumstances where the evidence was:
(a) That the alleged damage to the swimming pool being cracking at the interface between the pool shell and the capping was not caused by the actions of the Appellants but by defective construction (Conclave p.10, F1 CB 294).
(b) The alleged cracking of the pool tiles surrounding the pool was not caused by the Appellants (conclave p. 10, F2 CB 294).
(c) The discoloration of the pool paving would be a maintenance matter (F3 CB 295).
(a) Sediment disposition was caused by the failure of the Respondents to provide adequate construction on the boundary in the form of a retaining wall with subsoil drainage to control sediment erosion from no.2B (conclave p.10 F3, CB 295).
11. The order was not open to make and was therefore legally defective.
GROUND 5 – Order Requiring Repair of Pipe
12. The primary judge erred [J106(2)] in ordering the Appellants to repair and reconfigure the stormwater drainage system.
13. The order was made in circumstances where:
(b) the stormwater pipe is located on the easement connecting the pipe to Council infrastructure;
(c) compliance requires third-party approval of Council;
(d) the Appellants lack unilateral legal authority to perform the works.
14. The order was therefore legally and practically defective.
GROUND 6 – Mischaracterisation of Cross-Claim and Finished Levels
15. The primary judge erred in characterising the cross-claim as stormwater nuisance rather than withdrawal of support under s 177 of the Conveyancing Act 1919 (NSW).
16. The primary judge further erred at [J33] in finding that finished levels on No 4 were comparable to pre-development levels.
17. That finding was not open on the undisputed evidence, having regard to the DA and CC plans demonstrating excavation and level changes along the boundary, photographs and borehole logs (Plans: p.50-68 Court Book; Geotechnical Engineer reports at p864-988 Court Book in particular Site Plan – Stormwater Layout and Conditions at Common Boundary at p.912 Court Book).
18. The primary judge ought to have found that the redevelopment altered boundary levels and engaged principles of withdrawal of support.
GROUND 7 – Retaining Wall, Soil Erosion and Causation
- The primary judge erred at [J93] and [J99] in dismissing the cross-claim and in finding that no clear causal connection was established between the works on No 4 and damage to No 2B.
20. The primary judge ought to have found that absence of an adequate retaining structure as required under the DA led to soil erosion and consequent subsidence affecting No 2B.”
“(a) The finding that the dominant cause of overflow was the compromised pipe was not open on the evidence (Ground 1).
(b) The finding that no kerb existed or had been removed between Points A and B was not open on the evidence (Ground 2).
(c) Her Honour erred in law by introducing absence of motive as a positive reason to accept the Respondent's denial of kerb removal — a reasoning error that was the operative cause of the kerb finding (Ground 3).
(d) The injunction is legally and practically defective (Ground 4).
(e) Her Honour mischaracterised the cross-claim as stormwater nuisance rather than withdrawal of support under s 177, and erred in finding finished levels were unchanged — a finding based on a methodologically invalid survey comparison (Ground 5).
(f) The dismissal of the cross-claim was not open on the evidence and misapplied s 177 (Ground 6).”
Despite the confusing and completely unsatisfactory way the issues were addressed by the applicants, I will seek to deal with the applicants’ case in the same order and under the same headings as the applicants’ written submissions.
The applicants’ central thesis in writing was that the appeal turned on three findings made by her Honour that it was submitted “[could not] rationally stand together”:
“(i) all four experts agreed the concrete between Points A and B had been cut by a circular saw to accommodate the Respondent's fence posts;
(ii) approximately 90% of stormwater entering No 4 did so through the gap between A and B (conceded by the Respondent himself, T1/D1); and
(iii) the stormwater pipe had been compromised and was blocking water flow.”
(internal references omitted)
According to the applicants, “If the concrete was sawn, something was there to saw. If 90% of water flows through the sawn gap, the gap is the dominant cause. And if the gap was created by the Respondent’s contractors, the nuisance was the Respondent’s own doing – not the [applicants’]”.
As will become clear, I reject this central thesis. Shortly put, the applicants’ case in this Court was based on little more than assertion. To a significant extent it relies on misstatements about the evidence below and conclusions which simply do not follow from the proven facts.
As to the three “central” issues advanced by the applicants, it may be observed at this stage that none of these “central” issues assists the applicants:
the first applicant himself admitted that he had caused circular saw cuts to the concrete between Points A and B;
the fact that 90% of stormwater entering No 4 did so through the gap between A and B is at the heart of the respondent’s case and provides no support for any ground of appeal; and
the stormwater pipe had been compromised and was blocking water flow. This was the applicants’ responsibility to remedy. Her Honour accepted, as I will explain, that even if the “kerb” the first applicant says he built between points A and B had been in place, stormwater would still have entered No 4 between points A and B.
“[70] On the basis of the evidence of Mr Tannous, Mr Smith, Mr Appleyard, Mr Webster and Mr Xue, I find that the following damage was caused to No 4 by the overflowing of the stormwater system in the easement along the western boundary of No 2B and No 2A and the ingress of dirty water into No 4 during and after storm events:
- repeated contamination of the water of the pool with muddy stormwater,
- damage to the pool filtration system,
- repeated soiling of the tiles around the pool, and
- subsidence of the pool tiles.
[71] I find that the dominant cause of the damage set out in [70], above, is the deformation and blockage of the stormwater pipe in the easement appurtenant to No 2B. The precise cause of the deformation of the pipe is unknown. The blockage is partly caused by the presence of objects and material in the pipe and is partly unknown.”
As the respondent correctly points out, “Ground 1” in the applicants’ written submissions corresponds with “Ground 3” in the draft notice of appeal and, in truth, comprises grounds 6, 7 and 8 set out at [38] above.
Ground 6 of the draft notice of appeal alleged that the primary judge erred in “finding that damage to No 4 was caused by overflow and deformation of the stormwater pipe”.
Ground 7 complains that four identified categories of evidence rendered the primary judge’s findings “not open”.
Ground 8 asserts that “the primary judge ought to have found that removal of the kerb materially altered surface water flow onto the Respondent’s property but did not cause any damage”.
As to the complaint in ground 6, I have set out at [19] above the primary judge’s acceptance of the evidence from both of the respondent’s experts and one of the applicants’ experts that the stormwater system was almost completely blocked by the deformation of the pipe together with objects blocking the pipe. No error was shown in her Honour’s conclusion. To the contrary, the conclusion was inevitable on the expert evidence.
As to ground 7, the four identified categories of evidence that purported to render the primary judge’s findings “not open” were as follows:
“The respondent conceded 90% of water came through the kerb gap”;
“All four experts agreed the missing kerb was the primary cause”;
“Mr Smith’s decisive concession”; and
“Water never overlapped the intact 150 mmm hob”.
These four assertions are a serious misstatement of the evidence.
First, there was no concession by the respondent about any alleged “kerb gap”. The respondent agreed that water travelled into his property between points A and B (as described by the parties in identifying the layout of No 4). This is consistent with the primary judges finding at PJ [67] (set out at [24] above) that most of the water flowed through points A and B.
Secondly, the applicants asserted that “all four experts agreed the missing kerb was the primary cause”. The experts did no such thing. The experts stated that “the absence of a kerb on the No. 2[B] land in accordance with the Burton and Field Pty Ltd plan allows surface water to flow directly over the boundary from the high side on No. 2[B] to the low side on No. 4.” No “joint finding” was made about any kerb being “missing” or that it was the “primary cause” of anything relevant.
Thirdly, Mr Smith’s so-called decisive concession was not a concession at all. Mr Willows, the applicants’ expert, said that:
“WITNESS WILLOWS: … Gordon Tang did draw a picture of what he compared in his affidavit. He compares the two curves, the one he describes he built and the one that he describes was adjacent, and he shows them two different heights, and by scale, one is shown to be 150 high, and I’ve sketched it, and I come up with about 90 millimetres high. He describes it as anywhere between 80 and 100 millimetres high, which you might say is half to two thirds the height of the design kerb. So, the answer to the question is it would overtop in a smaller rain event with less flooding, but it’s not a certainty. There are gaps in that paving, there is a gap at the boundary, there is a pit. So, the pit itself may drain to the road, even if it’s slow.”
“LUITINGH: … Assume, for the moment, that there was a hob of only 90 or 100 mil in the sections A to B. Is it your view that, in those circumstances, the water would flow over that hob if it was 100 mil, or that the water would be directed to the pits, and potentially take more time to drain to the street?
WITNESS SMITH: I would believe, with the compromised pipe, the - doesn’t matter how high the kerb is. I would say it would eventually find its lowest point and - and - and run into number 4.
LUITINGH: Yes, I think that that is very reasonable, and it’s very logical.
WITNESS SMITH: Yes.
LUITINGH: That’s not my question.
WITNESS SMITH: Right.
LUITINGH: My question, firstly, was put to you earlier. Did you think that the water would ever flow over the 150 mil kerb? And as I understand your answer, it was, no, it was unlikely to do that.
WITNESS SMITH: That’s correct.
LUITINGH: Now, I’m asking you the same question--
WITNESS SMITH: Yep.
LUITINGH: --but I’m saying, assume that the kerb was only 100. Would you change your opinion on that?
WITNESS SMITH: If you’re talking about the section from Nobbs Road to point A, probably 100 mil hob would suffice. In the section from A to B, though, whether the kerb is 100 mil high or 150 mil high, with a compromised pipe, the water would still flow over.
LUITINGH: To what extent? How do you know that? Are you able to give us a scientific reasoning to what extent it is likely to do that?
WITNESS SMITH: Just looking at the levels of - in the Ross Robinson Consulting survey, I - I can see - I can see where the low point is likely to be. And see, the - the kerb - running a kerb from where it terminates at - at the moment, at point A, to pit 1 is part of the story. You - the kerb then needs to wrap around pit 1 in accordance with the Burton & Field design. So there’s a number of scenarios here, but with a compromised pipe, even with the kerb running around the back of pit 1 in accordance with the design, the water would run over the kerb and into number 4.” (emphasis added)
That is to say, on the applicants’ own case, assuming the kerb the size the first applicant himself describes was built, and was not removed, that “water would still flow over”.
Fourthly, the applicants’ assertions about a “150 mm hob” are inconsistent with the first applicant’s evidence, which the applicants’ own expert Mr Willows described as “about 90 millimetres high”, and expert evidence led by the applicants’ counsel (set out at [59]) which was accepted by the primary judge.
As to ground 8, it appears that the applicants principally rely on the evidence of their expert witness Mr Willows. Mr Willows’ evidence on critical issues was carefully considered and rejected by the primary judge. Her Honour was correct to do so.
First, Mr Willows made clear in his evidence that “…[i]t is unknown what construction techniques were used to provide ‘protection and support…’”. Her Honour correctly found:
“[64] Mr Willows’ evidence amounts to a theory in circumstances where the factual basis for that theory has not been established on the evidence and there are other competing theories of a higher order of probability which are consistent with the known conditions on the land.
[65] In cross-examination during the concurrent evidence session at the trial, Mr Appleyard said that Mr Willows’ idea about soil piping is not relevant in this matter (T p 219). I accept Mr Appleyard’s evidence. It was clear in oral evidence that Mr Willows’ fears for the stability of No 2B were based upon assumptions about what might have happened during the excavation for the swimming pool on No 4 which are not based on fact.”
Secondly, the applicants’ repetitive claim that the pipe had functioned for 19 years “without complaint” is without foundation. The clear evidence, including from one of the applicants’ experts, was that the pipe was deformed and was blocked with objects and material. In the absence of evidence that subsidence ‘squashed’ the pipe, her Honour concluded that the reason for damage to the pipe was partially unknown.
Her Honour did not enter into speculation or conjecture as to the unknown cause of the damage including whether a 19-year-old pipe might degrade naturally over time without proper maintenance. Once Mr Willows’ speculative evidence was rejected, there was no affirmative evidence as to the cause of the agreed damage to the pipe.
No error in the decision of the primary judge has been shown.
Ground 1 (in truth grounds 6, 7 and 8 of the draft notice of appeal) should be rejected.
Ground 2 as advanced in the written submissions most closely corresponds with ground 1 of the draft notice of appeal and in truth comprises grounds 1–3 (inclusive) of the draft notice of appeal.
Ground 2 identifies the following paragraph as the subject of challenge:
“[21] The fence built for No 4 is located next to the concrete slab with the downturn and not on top of it. There would have been no benefit to No 4 for the contractor or Mr Tannous to remove any kerb. Had a kerb been present, it would not have impeded the installation of the fence.”
The applicants submitted that “[e]very objective piece of evidence” pointed to the existence (at one time) of a concrete kerb between points A and B and the removal of that kerb by the respondent. Before addressing this “objective evidence” it is well to remember that a central plank of the applicants’ case, photographic evidence, must be approached with caution. The limitations on the use to be made of such photographs as these, particularly on appeal, has been reiterated many times by this Court: Pledge v Roads and Traffic Authority [2004] HCA 13; 78 ALJR 572; Blacktown City Council v Hocking [2008] NSWCA 144; Aust Torts Rep 81-956 at [170]; Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298 at [25]; Boateng v Dharamdas [2016] NSWCA 183; 77 MVR 151.
The positive evidence of the kerbs’ “existence and removal” is said to comprise:
The first applicant’s affidavit evidence;
Three photographs, allegedly taken in 2001, 2010 and October 2016;
A 2015 Dancom survey;
A neighbour, Mr Tato’s, evidence;
Expert witness Mr Wallace’s evidence; and
Expert witness Mr Webster’s evidence.
Evidence contrary to the “existence and removal” of the kerb was said to be unreliable, comprising:
The wife of the respondent, Ms Boulos’ affidavit which allegedly “contradicts itself”;
The respondent’s affidavit which allegedly contained an admission;
The owner of No 2A, Mr Taychouri’s evidence which was alleged to be evidence only of non-recollection;
The so called “loose bricks theory” which was not pleaded and had “no evidentiary support”; and
A Jones v Dunkel (1959) 101 CLR 298 inference which it was said should have been drawn by reason of the failure to call the contractor who constructed the fence on No 4 in 2017.
I reject ground 2. The primary judge did not determine the matter solely or primarily on the absence of an apparent motive. In any event, the primary judge was correct to conclude there would have been no demonstrable benefit in the respondent removing any kerb. Simply put, there was no reason shown for the respondent to go onto the applicants’ land and remove any kerb (if one existed) between points A and B. The primary judge was plainly correct to conclude that the fence built for No 4 is located next to the concrete slab with the downturn and not on top of it. There would have been no benefit to No 4 for the contractor or the respondent to remove any kerb. Had a kerb been present, it would not have impeded the installation of the fence.
“As shown in my diagram below, the kerb that I built on the boundary edge of 2B Nobbs Road was narrower than the kerb along the right of carriage way and not as high as the one along the boundary edge of 2 Nobbs Road. The kerb I constructed on 2B Nobbs Rd is smaller than the kerb on 2 Nobbs Rd but is enough for stormwater purposes.”
“Q. --the diagram on the left, where you have the curb and the concrete slab over the downturn being cut away so that Mr Tannous can put his fence on top of the downturn. You agree that that doesn’t represent what’s actually happened either; is that right?
A. [Mr Tang through an interpreter]: Correct.
Q. That, in fact, Mr Tannous’ fence was built next to your downturn and not on top of it?
A. INTERPRETER: Correct.
Q. Where Mr Tannous has put in a wall with bricks with holes in them, he’s put in that wall next to your downturn, isn’t it right?
A. INTERPRETER***: Correct***. Yeah.” (emphasis added)
Contrary to the applicants’ assertions in this Court, the evidence of the first applicant strongly supported the primary judge’s conclusion that the fence built for No 4 was located next to the concrete slab with the downturn and not on top of it.
The three photos allegedly showing the kerb existing between points A and B in 2016 showed no such thing. The first photograph is a cogent demonstration of the caution which must attend fact finding based on photos. Despite the later affixed assertion that a “concrete slab” exists at the point of the red arrow, I am not in a position to determine precisely what it is that this photo shows.
The next photograph, said by Mr Tato, the lessee of No 2B to have been taken in October 2016, although a little clearer, suffers from different problems. It will be recalled that the first applicant’s evidence (at [12] above) was that he placed bricks around most of his property to act as a “kerb” and built a “concrete kerb” between points A and B. This photograph may or may not depict an area between points A and B: it is entirely unclear. Even assuming it does, it appears to show bricks laid side by side, which, according to the first applicant, was not the method by which he constructed the putative missing kerb.
The next photograph, which appears to be a colour version of the exact same photo above, makes even clearer that it depicts bricks laid side by side. No safe conclusion about any contested question of fact in this case could be drawn on the basis of this photograph.
The 2015 Dancom survey contains a single notation, “top of kerb” at one point along the boundary between No 2B and No 4. The Dancom document appears to be a survey drawing which identifies the levels of various parts of the property. It does not appear that the length or composition of the kerb was a matter addressed by the survey. The notation tells the reader nothing about whether in 2016–2017 there was a kerb between points A and B.
The affidavit evidence of the tenant of No 2B, Mr Tato, that he saw evidence of the kerb when he was moving in and that it was gone after the fence was installed was tentative, shown to be unreliable in cross-examination and was rejected by the primary judge. Mr Tato’s evidence supported the theory that the fence built by the respondent was “at the position where the kerb used to be”. This was the theory abandoned by the first applicant in his evidence and by Mr Webster immediately before the trial. The primary judge was correct to conclude that “[f]or Mr Tato to be correct, the kerb would have had to have been on part of the old concrete slab which protruded into No 4, and which was cut off in order for Mr Tang to build the downturn”. Mr Tato’s evidence was rightly rejected.
Affidavit evidence given by Mr Wallace that the respondent had allegedly admitted to removing the kerb to install the fence was undermined, fatally, in cross-examination:
“Q. Now, you say in your notes, Mr Tannous, I think, “stated removed kerb on boundary to enable fence to be built”.
A. Yes.
Q. That’s one of the things that you say in this page of notes?
A. Yes.
Q. That’s just a summary that you made quickly in the car afterwards?
A. Yes.
Q. You’re not sure if he talked about removing loose bricks with cement render, or if he phrased it in some different way. Is that right?
A. Yeah, I can’t confirm that.
Q. And when you say in your affidavit that you recall a conversation, in paragraph 6 of your affidavit, with Mr Tang and Mr Tannous to the following effect, and then, “Me: What happened to the kerb? Mr Tannous: I removed it. Me: Why did you do that? Mr Tannous: So I could install the fence,” you were just coming up with some plausible conversation that might’ve happened, consistent with your note. Is that right? Rather than recalling--
A. I - I wouldn’t agree that it--
Q. --the way it was phrased?
A. I didn’t agree that it was plausible, like, as what you’re saying. It was to the best of my knowledge.
Q. And Mr Tannous - you might’ve asked him, “What happened to the kerb here?”, and he might’ve said, “There were just some loose bricks, and they got removed when the fence was constructed.” Is that right***?***
A. I don’t know whether it was in those same words, but it was to enable the fence to be installed. So he might’ve mentioned loose bricks. I can’t - I can’t recall exactly.” (emphasis added)
The respondent’s structural engineer, Mr Webster’s evidence that “the kerb originally constructed by [the applicant] is not present” and that “both longitudinal and transverse overrun saw cuts are visible in the residual portion of the pavement indicating its original construction” – was assumption and not evidence. It takes the applicants’ case on these issues no further.
The contrary evidence, led by the respondent, was compelling:
The evidence of Ms Boulos, that the kerb is the same length now as it was in 2016–2017, was essentially unchallenged: “I’ve only ever seen that driveway, that hob, to be the exact same as it is now”;
The respondent’s affidavit did not contain any admission. It is a perverse reading of the statement “I was required to install… metal flashing to cover the gap between the fence and the slab, where the hob was missing” to claim it is an admission. In truth, the respondent’s evidence was powerful evidence contradicting the allegation that he had removed the kerb;
The evidence given by the resident of No 2A, Mr Taychouri, was consistent with the respondent’s case and the alleged deficiencies of that evidence are a gross exaggeration.
I reject the submission that there should be a Jones v Dunkel inference drawn by reason of the failure to call the builders engaged by the respondent on a project a decade ago. There was evidence of a failed attempt to contact the relevant contractors. The absence of the contractor from evidence was not “unexplained”: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63].
Whatever slight evidence there was in favour of the existence of a kerb of some kind at some point, by 2016 (the relevant date) it was overwhelmed by evidence to the contrary. There was no reliable evidence that the respondent removed any “kerb”.
The primary judge was correct to conclude:
“[26] A number of possibilities exist with respect to the fate of the kerb on the land at No 4 between Points A and B. It may never have existed, in the form of a concrete kerb. Had it been constructed by means of concrete poured on top of the slab, its removal would have left marks. It may have been a line of bricks removed at any time between the photograph taken in 2010 (and included in Mr Tang’s affidavit of 28 January 2025) and 2021, when the water ingress was first reported into No 4. If that is what occurred, the removal could have been undertaken by any number of people, for any number of reasons. It has not been established, on the balance of probabilities, that any such removal occurred at the direction of Mr Tannous or anyone associated with the construction works on No 4. The expression of a belief to the contrary by lay and expert witnesses is speculation and without an evidentiary basis.”
Ground 3 corresponds with what is described as “ground 2” in the draft notice of appeal and in truth comprises grounds 4 and 5 of the draft notice of appeal.
The applicants submitted that the primary judgment at [21] (which I have set out at [67] of this judgment) demonstrated that “the motive reasoning was the load-bearing legal error”. It was submitted that her Honour erred in concluding that the respondent had no motive to remove the alleged kerb on two bases: “First – motive is legally irrelevant to whether a physical act occurred”. It was submitted that motive was not a criterion that can override direct evidence and expert finding that the act occurred: cf Nominal Defendant v Clements (1960) 104 CLR 476 at 479. Secondly, the applicants submitted that in any case “[t]he premise was factually wrong; the Respondent had a direct and obvious motive[.]”
That motive was characterised in the applicants’ submissions as the fact that the respondent “wanted a straight … fence” in alignment with No 4’s lower ground level.
These arguments are without merit. The criticism of the primary judge, that she permitted a finding about motive to “override direct evidence and expert finding that the act occurred”, is unwarranted assertion. As I have said, her Honour’s findings in the impugned paragraph were plainly correct.
Further, the suggested motive to “remove” the kerb to construct “a straight Colourbond fence running in a straight horizontal alignment” was demonstrably untrue.
This photograph, taken from the applicants’ own expert evidence depicts the area between points A and B. It shows the fence, at the critical point, not being “a straight Colourbond fence running in a straight horizontal alignment…”
Ground 3, corresponding with what is described as “ground 2” in the draft notice of appeal and in truth comprising grounds 4 and 5 of the draft notice of appeal, should be rejected.
Ground 4 corresponds with what is described as “ground 5” in the draft notice of appeal and in truth comprises grounds 12, 13 and 14 of the draft notice of appeal.
The order challenged in this ground is as follows:
“[106] The following orders will issue:
[…]
(2) The defendants shall forthwith remedy the nuisance caused by stormwater escaping from the defendants’ land at 2B Nobbs Road, Yagoona, New South Wales (the land) and the drainage easement over 2 Nobbs Road, Yagoona, New South Wales (the easement) by the defendants repairing and reconfiguring the stormwater drainage system on the land and the easement so that it is in accordance with the drainage plan being Reference Number 51056/95-29814 dated 16 March 1995 approved and stamped by Bankstown Council in relation to Development Application 2002/95.
[…]”
The applicants submitted, in the written submissions in chief, that the order to remedy the nuisance was unjust in circumstances where there were no findings as to access, consent or approval for the undertaking which required access to a third party’s land (putatively through the easement over No 2) and required Council approval. It was argued that an order compelling acts requiring third party consent and statutory approval, “which the party does not have legal authority to perform”, was oppressive and legally impermissible. It was argued to be additionally unjust that there was no apportionment in the responsibility for the remedy and that sole responsibility to repair the drainage system was allocated to the applicants.
In reply, the applicants’ argument changed. It was conceded that access to the adjoining property was given as of right pursuant to the easement, and that there was an outstanding Council order directing the applicants to make the necessary repairs to the storm water system.
The applicants submitted that, nonetheless, they should not be required to correct the damage allegedly caused by the respondent as to do so would improperly place a burden on the applicants to do more than what is indicated to repair the drain that constitutes the easement.
Each of the applicants’ arguments must be rejected:
The access point is without merit. There is an existing easement permitting access;
The consent point is equally meritless. The Council had, on 27 March 2023, issued an order under s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) requiring the applicants to reinstate the drainage system and bring it into compliance with the 1995 Council drainage plan. The applicants had thus far refused to do so. The Council had therefore not only consented to the work but positively required it;
The so-called “unchallenged” expert evidence from Mr Willows was nothing of the sort. The primary judge examined in detail and rejected Mr Willows’ opinion:
“[64] Mr Willows’ evidence amounts to a theory in circumstances where the factual basis for that theory has not been established on the evidence and there are other competing theories of a higher order of probability which are consistent with the known conditions on the land.
[65] In cross-examination during the concurrent evidence session at the trial, Mr Appleyard said that Mr Willows’ idea about soil piping is not relevant in this matter (T p 219). I accept Mr Appleyard’s evidence. It was clear in oral evidence that Mr Willows’ fears for the stability of No 2B were based upon assumptions about what might have happened during the excavation for the swimming pool on No 4 which are not based on fact.”
Amongst her Honour’s reasons for rejecting the evidence of Mr Willows was the adoption of competing evidence (from Mr Appleyard) that the “zone of influence” of excavations did not extend into the area in which the applicants’ pipes were present. Mr Willows’ opinion was based on, substantially, mere speculation about the construction process.
Ground 4, corresponding with what is described as “ground 5” in the draft notice of appeal and in truth comprising grounds 12, 13 and 14 of the draft notice of appeal should be rejected.
“[33] Subsequently, in a document prepared by him on 4 May 2025, Mr Webster conceded that a comparison of the Dancom Builders Pty Ltd survey drawing of 28 August 2015 with the Ross Robinson Consulting Survey drawing dated 12 December 2023 shows that the works on No 4 did not cause any significant change in levels between the two properties. Mr Webster cavilled with the location of the data points on the Dancom Builders Pty Ltd survey because they are up to 1 metre from the boundary, but I reject that reservation. Mr Webster also advanced a theory based upon the photograph prior to 2005 which is included in his report, and which shows a door lying on its side by the boundary next to the carport on No 2B. Mr Webster assumes that the door is lying on the ground, assumes its width and extrapolates a view that No 4 has been lowered since the photograph was taken. I prefer the evidence on the survey plans to Mr Webster’s evidence. Mr Appleyard relied on the survey plans and his opinion was that there has been no significant change in the levels between the two properties. I accept that evidence. I find that the finished levels on No 4 were comparable to the levels prior to the building works. I also find that there was a downturn on the concrete slab on No 2B adjacent to the boundary. In these circumstances, the lack of an adequate retaining wall under the new boundary fence is not significant in the context of the claim. It is clear that about 90% of the water flowing onto No 4 from No 2B is flowing overland.”
This ground alleged a mischaracterisation of the cross-claim that “was wrong in law and infected the entire analysis of the cross claim”. The cross-claim, invoking 177(2) of the Conveyancing Act, was argued by the applicants to have been mischaracterised by her Honour as a “stormwater nuisance claim”.
This ground also challenged the findings of her Honour as to the respective ground levels of No 4 and No 2B after excavation. This finding was that the levels were generally comparable. The applicants submitted this finding was not available as the survey comparison used to make that finding was methodologically invalid (as the two surveys placed data points in different areas, and therefore the surveys were measuring different physical locations). In addition, the applicants referred to evidence of the photo of a door, tendered in relation to the kerb issue, which was argued to demonstrate that the excavation “created a differential that did not previously exist”. It was argued that “[f]inished levels after that excavation cannot be comparable to pre-Redevelopment levels unless all excavated materials were fully reinstated…” and there was no evidence that this occurred.
I reject the applicants’ submission that the primary judge misconstrued the nature of the cross-claim. This matter was squarely addressed by the primary judge who explicitly characterised the cross-claim as one under s 177 of the Conveyancing Act in contrast to one in private nuisance:
“[41] I reject the defendants’ contention that the plaintiff’s claim is a claim pursuant to s 177 of the Conveyancing Act 1919 (NSW). The plaintiff’s claim is a claim for private nuisance at common law and is not a claim in relation to the right of support for land. The defendants’ cross-claim is, however, a claim under s 177 of the Conveyancing Act 1919 (NSW).” (emphasis added)
Her Honour set out at [87] the details of the cross-claim, and in doing so again referred to s 177. Her Honour considered the evidence related to retaining walls, vibrations, and excavation that might have caused subsidence. Her Honour made an explicit finding that the respondent had a statutory duty under s 177 of the Conveyancing Act but that nothing that was done breached that duty of care under s 177.
The primary judge’s findings were correct. Her Honour did not misconstrue the nature of this claim. Ground 15 is rejected.
Grounds 16, 17 and 18 all concern a supposedly erroneous finding that the level of the respondent’s land after the respondent’s development of that land were comparable to predevelopment levels.
The applicants in written submissions contended that “the finding that finished levels after the Redevelopment were comparable to pre-development levels was not open where the Respondent himself conceded major excavation had occurred at and adjacent to the boundary”. No reference is given as to where this supposed concession was made. In any event, the fact that excavation did occur on parts of the respondent’s land in order to construct his house and swimming pool does not support a conclusion about the “finished levels” of the respondent’s land after that excavation concluded.
The conclave between Messrs Willows, Webster, Appleyard and Smith concluded that “there was no appreciable change in surface levels adjacent to the common boundary”. This is a profoundly unpromising basis for the applicants’ challenge. There was no error in the trial judge adopting the unanimous conclusion on this topic of the experts in conclave.
I reject Grounds 16, 17 and 18.
Ground 6 corresponds with what is described as “ground 7” in the draft notice of appeal and in truth comprises grounds 19 and 20 of the draft notice of appeal.
The paragraphs the subject of attack under this ground provided as follows:
“[93] Mr Tang accepted, in cross-examination, that some subsidence was occurring on No 2B at least eight years before the redevelopment of No 4 for Mr Tannous. He also accepted that there was some cracking in his driveway prior to the building work at No 4. He thought that the level of subsidence and cracking was consistent with the age of the surfaces at the time. It was clear from his evidence, and I accept, that the subsidence and cracking have worsened over the last eight years.
[…]
[97] Mr Willows believes that the construction works on No 4 began a process of soil piping, or subsurface erosion which undermines the structures on No 2B. Mr Willows based some of his opinion upon the belief that a kerb was in existence between Points A and B and that the kerb was removed during the building work on No 4. As I have said, this has not been established on the evidence. Mr Willows did not address the fact that the levels have not changed significantly in the course of the building work, based upon the survey plans referred to in [91] above. The competing theory, set out above at [96] is a more likely explanation for the cracking of pavement on No 2B.”
It was submitted that it was not open to her Honour to dismiss the cross-claim on the basis there was no causal connection established between the works on No 4 and damage to No 2B because:
A photo of the pre-redevelopment ground levels purportedly shows that the pre-redevelopment levels were similar on both sides of the boundary;
The measurement gap between the 2015 and 2023 surveys (the survey comparison was therefore argued to have been incapable of refuting the evidence of Mr Willows because they were “silent” on the area where there was purported progressive soil erosion, and “silence is not a contradiction”); and
Mr Willows’ “uncontradicted” soil erosion evidence and Mr Willows’ conclusion that stormwater pipes do not crush under the weight of a concrete driveway unless surrounding soil has eroded away.
Each of the applicants’ propositions should be rejected.
The photograph relied upon by the applicants does not establish that No 4 “provided lateral support to No 2B before the redevelopment”. This question was litigated in the evidence at first instance and the applicants failed to establish this proposition.
I have already addressed this photograph in another context. Its poor quality makes it a most unpromising source for an attack on the primary judge’s findings. If ever there was a photograph providing a demonstration of the caution required in using photographs to make findings of fact about critical issues, this is it. I do not accept that this photograph provides support for the proposition that No 4 “provided lateral support to No 2B before the redevelopment”.
Secondly, the survey measurement gap between the 2015 and 2023 surveys supported the respondent’s case and not the applicants’.
Thirdly, and critically, the entire thesis underpinning the applicants’ cross-claim was the evidence of Mr Willows which was comprehensively discredited in cross-examination and correctly rejected by the primary judge. The applicants’ repetitive assertion that Mr Willows’ evidence was “uncontradicted” is not correct. It was no more than a thesis that Mr Willows himself accepted was based on speculation.
As I have said, the expert evidence about this subject correctly accepted by the primary judge was a complete answer to the applicants’ cross-claim:
“YOUNG: Can you explain what a zone of influence is and its importance?
WITNESS APPLEYARD: It’s a - yes. It’s a - it’s a construct, if you like; it’s not a physical thing. It’s a construct. It’s the - it’s sometimes referred to, loosely, as the angle of repose of different materials. It varies according to the geological properties of the materials. Mr Willows was correct when he talked about sands, and he talked about rock and clay, and so on. The National Construction Code does indeed give some guidance to that, but it’s - it’s the angle that an engineer will adopt when designing a structure that is going to into the ground by excavation first. And then, he uses that angle to say, “Well, this is likely to have some sort of impact on the adjacent property or, indeed, on other features or services,” or whatever the case may be. That’s what it is.
YOUNG: So if there is digging within the zone of influence, that could influence the neighbouring property, and if the digging is outside the zone of influence, it won’t influence the neighbouring property; is that right?
WITNESS APPLEYARD: Generally speaking, that’s exactly right, yes.
YOUNG: And was the construction of number 4 Nobbs within or outside the zone of influence?
WITNESS APPLEYARD: It’s outside the zone of influence. The zone of influence intersected the ground line at the junction of the properties. You can’t be too precise, because it’s a varying figure, anyway, along the property line boundary, but only by perhaps 200 millimetres, or something like that; it’s an insignificant amount.”
Consistently with the haphazard way this appeal was presented on behalf of the applicants, no written submissions were advanced in chief on grounds 9, 10, and 11 of the draft notice of appeal and these grounds were only tangentially addressed in written submissions in reply.
The applicants submitted, in essence, that the attribution by the primary judge of causation to the stormwater pipe did not account for and was inconsistent with three of the damage components (pool clean up, pool pump rectification, diminution in amenity) being “referable to sediment disposition rather than pipe overflow”.
I do not agree that the damages awarded by the primary judge were “referable to sediment disposition rather than pipe overflow”. No error was shown in the conclusion of the primary judge. Grounds 9, 10, and 11 on the draft notice of appeal must be rejected.
The applicants advanced written submissions (but no ground of appeal) to the effect that the respondent’s claim of private nuisance was not available pursuant to s 177(8) of the Conveyancing Act*.* It was argued that s 177(8) makes clear the statutory provisions in s 177 are to be the exclusive mechanism of determination for a dispute of this type.
I reject this submission. The respondent did not, in the proceedings below, assert any claim which was barred by s 177(8). That was the subject of a positive (and correct) finding by her Honour at [41].
The primary judge’s factual finding was that there was no loss of support (subsidence), and the cause of the nuisance was the applicants’ failure to maintain the stormwater drainage system. That is a complete answer to the applicants’ point.
The so-called threshold issue must be rejected.
Despite the unsatisfactory way the applicants advanced this case I would grant leave to appeal, but would dismiss the appeal. I propose the following orders:
Grant leave to appeal;
The draft notice of appeal contained in the Red Book at p 99 to be treated as the Notice of Appeal;
Dismiss the appeal;
Appellants to pay the respondent’s costs.
MITCHELMORE JA: I agree with Payne JA.
HARRISON AJA: I agree with the reasons of Payne JA and with the orders he proposes.
**********
Tang
Tannous
[2011] HCA 11
(1959) 101 CLR 298
(2011) 243 CLR 361
(1960) 104 CLR 476
(2018) 97 NSWLR 513
Leave to appeal granted; the draft notice of appeal in the Red Book at p 99 treated as the Notice of Appeal; appeal dismissed; appellants to pay the respondent's costs.
Undertook improper excavation along the common boundary;
Failed to build a retaining wall in accordance with development consent; and
Removed 16 meters of kerb that had been constructed to protect the boundary and subsoil surface, which undermined the stormwater system.
The applicants’ case in relation to the retaining wall also underwent some dramatic changes. In particular, immediately before the trial, one of the applicants’ experts, Mr Webster, changed his position about the retaining wall completely. Mr Webster, contrary to the applicants’ claim, concluded that the applicants’ retaining wall was still in place standing adjacent to the respondent’s wall (rather than replacing it).
This photograph, taken from Mr Webster’s expert report prepared for the applicants, shows that the fence was not constructed on top of any formerly existing “kerb”. Ground 1 of the draft notice of appeal must be rejected.
Further, grounds 2(a), 2(b), 2(c) and 3 of the draft notice of appeal, which advance the claim that it was demonstrated that the respondent removed the kerb in 2017, must be rejected for these additional reasons.
The sworn evidence of the first applicant did not establish that there was any kerb between points A and B in 2017. The first applicant’s evidence changed dramatically, as the expert Mr Webster changed his evidence immediately before the trial: