Body Corporate for Ocean Pacifique CTS 8379 v Body Corporate for Orchid 17 CTS 11906 [2026] QSC 84

SUPREME COURT OF QUEENSLAND CITATION: Body Corporate for Ocean Pacifique CTS 8379 v Body Corporate for Orchid 17 CTS 11906 [2026] QSC 84 PARTIES: BODY CORPORATE FOR OCEAN PACIFIQUE CTS 8379 (applicant) v BODY CORPORATE FOR ORCHID 17 CTS 11906 (respondent) FILE NO/S: BS 5963/22 DIVISION: Trial division PROCEEDING: Claim ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 28 April 2026 DELIVERED AT: Brisbane HEARING DATE: 20-21 October 2025 JUDGE: Cooper J ORDER: 1. The applicant’s claims are dismissed. 2. On the counterclaim, there be judgment for the respondent in the amount of $33,197.21, inclusive of interest. CATCHWORDS: TORTS – NUISANCE – PRIVATE NUISANCE – PARTICULAR CASES – WATER RELATED – where the applicant is the body corporate under a community title scheme – where the applicant alleges that water and contaminated material leaked from the respondent’s neighbouring property through a retaining wall in the basement of the applicant’s property – where the basement retaining wall is located on the applicant’s side of the common boundary with the respondent’s property – where the applicant alleges that the leaking of water and contaminated material has caused physical damage to the applicant’s property – where the applicant claims damages – where the applicant also seeks relief in the form of mandatory injunctions to compel the respondent to take steps to address the issues alleged to cause or contribute to the water leakage – where the respondent denies liability – whether the respondent is liable in nuisance for the entry of water into the basement of the applicant’s property -- 1 of 18 -- 2 TORTS – NUISANCE – DEFENCES – TAKING OF REASONABLE PRECAUTIONS – where the respondent took steps recommended in reports on the water leakage which the applicant provided to the respondent – whether the applicant is estopped, either in law or in equity, from asserting that remedial works recommended in the reports were not reasonable and adequate to prevent further leakage of water TORTS – NEGLIGENCE – GENERALLY – where the applicant alleges that the respondent owed the applicant a duty to take reasonable care to ensure that water and contaminated material did not leak through the basement retaining wall into the applicant’s property – whether the respondent’s alleged failure to take steps amounted to a breach of duty of care owed to the applicant – whether the respondent is liable in negligence for the entry of water into the basement of the applicant’s property PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CROSS CLAIMS: SET-OFF AND COUNTERCLAIM – COUNTERCLAIM – COUNTERCLAIM IN PARTICULAR CASES – where the respondent counterclaims for the payment of money it alleges is due under a deed the parties executed to resolve the issue of the water leakage – whether the respondent is entitled to payment from the applicant pursuant to the deed – where the respondent also seeks payment of half of the fees charged by a joint expert who investigated and reported on the source of the water leakage – where the parties agreed to be jointly liable for the fees of the expert engaged – where the applicant submits that it is not liable to contribute to the joint expert’s fees because the expert’s report was deficient – where the respondent subsequently paid the applicant’s share of the expert’s fees – whether the respondent is entitled to payment from the applicant for the loss suffered by paying the applicant’s share of the expert’s fees Civil Liability Act 2003 (Qld), ss 9, 11 Civil Proceedings Act 2011 (Qld), s 58 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48, applied Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245, applied Body Corporate for Ocean Pacifique CTS 8379 v Pugliese [2022] QSC 246, cited Body Corporate for Ocean Pacifique CTS 8379 v Body Corporate for Orchid 17 CTS 11906 [2025] QSC 260, cited Elston v Dore (1982) 149 CLR 480; [1982] HCA 71, cited -- 2 of 18 -- 3 Gartner v Kidman (1962) 108 CLR 12; [1962] HCA 27, cited Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58, cited Hargrave v Goldman (1963) 110 CLR 40; [1963] HCA 56, cited Lawrence v Fen Tigers Ltd [2014] AC 822, cited State of Queensland v Michael Vincent Baker Superannuation Fund Pty Ltd [2019] 2 Qd R 146, cited Sedleigh-Denfield v O’Callaghan [1940] AC 880, cited Thompson v Palmer (1933) 49 CLR 507; [1933] HCA 61, cited Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7, cited COUNSEL: MD Martin KC with G Radcliff for the applicant A Crowe KC with M Bland for the respondent SOLICITORS: MBA Lawyers for the applicant QBM Lawyers for the respondent Introduction [1] The applicant (Ocean Pacifique) is the body corporate under a community title scheme registered for a building at 19 Orchid Avenue, Surfers Paradise. It alleges that water and contaminated material has leaked, and continues to leak, from the neighbouring property at 17 Orchid Avenue through a retaining wall in the basement of 19 Orchid Avenue causing physical damage. The respondent (Orchid 17) is the body corporate under a community title scheme registered for the building at 17 Orchid Avenue. [2] The basement retaining wall is located on 19 Orchid Avenue’s side of the common boundary with 17 Orchid Avenue, adjacent and parallel to that common boundary. At the rear of 17 Orchid Avenue, and adjacent to the common boundary, is a concrete courtyard area where a grease trap and a stormwater drain are located. [3] Ocean Pacifique alleges that the leakage of water and contaminated material arose because the grease trap in the courtyard area overflowed from about May 2019. It says the leakage continued after that time because Orchid 17 has allowed a restaurant business which operates from the ground floor of 17 Orchid Avenue to wash kitchen waste, including fat and grease, into the stormwater drain causing it to become blocked and to overflow during periods of rain. It claims damages for nuisance or negligence, and also seeks relief in the form of mandatory injunctions which would compel Orchid 17 to take steps to address the issues which, on Ocean Pacifique’s case, have caused or contributed to the leakage of water and contaminated material. [4] Orchid 17 denies liability. It accepts that water, but not any contaminated material, leaks through the retaining wall into the basement of 19 Orchid Avenue. It says that basement was designed and constructed to admit water through the retaining wall, and that ingress of water into the basement of 19 Orchid Avenue is caused by the flow of rainwater down the six-storey southern wall of the building on 19 Orchid Avenue -- 3 of 18 -- 4 (which is constructed above the basement retaining wall) flooding the rear courtyard area of 17 Orchid Avenue and causing the stormwater drain to surcharge. [5] Orchid 17 also accepts that kitchen waste has entered the stormwater drain from time to time, but says that has been done by staff of the restaurant business over which it has no control. It also says that, after repairs to the stormwater drainage system, any waste will not leak from the stormwater drain or through the retaining wall. [6] By way of further defence, Orchid 17 pleads that Ocean Pacifique is estopped from asserting that steps recommended in reports on the water leakage which Ocean Pacifique provided to Orchid 17, and which Orchid 17 followed, were not reasonable and adequate to prevent the water leakage. [7] To determine Ocean Pacifique’s claims for nuisance and negligence, it is first necessary to consider the following issues: (a) was the basement of 19 Orchid Avenue designed and constructed in a way which would allow water to enter through the retaining wall? (b) has water or contaminated material leaked through the retaining wall into the basement of 19 Orchid Avenue? (c) what is the source of any leakage? [8] Orchid 17 counterclaims for payment of money it says is due under a deed the parties executed to resolve the issue of the water leakage, and for payment of half of the fees charged by a joint expert who investigated and reported on the source of the water leakage. [9] For the reasons that follow: (a) Ocean Pacifique’s claims must be dismissed; (b) Orchid 17 is entitled to recover the amounts it seeks on its counterclaim. Was the basement retaining wall designed to be waterproof? [10] Having regard to the various engineering reports in evidence, I am satisfied that the basement retaining wall in 19 Orchid Avenue was designed and constructed as a “wet wall” which was not intended to be waterproof. [11] Ocean Pacifique obtained a report on water ingress into 19 Orchid Avenue from Jeffrey Hills & Associates dated 10 June 2019 (JHA report), which stated: “An inspection of the basement revealed the foundation design of the exterior of the building is bored piers. These piers when constructed are not designed to be watertight and as such a wet basement is part of the design. This means a perimeter spoon drain is usually built into the concrete floor slab with falls to a sump. Water is then pumped from this sump to the above ground stormwater system.” [12] The parties subsequently appointed a civil engineer, Mr Aldrich of KMA Consulting Engineers Pty Ltd, as a joint expert. In his report dated 13 November 2023 (KMA report), Mr Aldrich said: -- 4 of 18 -- 5 “The foundations of 19 Orchid Avenue consist of bored piers. The system adopted appears to be a Tangent pile wall where the axial distance between the piles is equal to their diameter. … Tangent pile walls are not watertight. Due to their construction methodology water is able to flow freely between the piles. Typically, any water that flows between these types of piles would typically be collected in some form of drainage system and pumped out to the council stormwater drain.” [13] The parties also appointed a hydraulic engineer, Mr Maxwell of OSKA Hydraulic Consultants Pty Ltd, as a joint expert. In his report dated 15 April 2024 (First OSKA report), Mr Maxwell stated: “As the basement wall (on #19’s property and owned by #19) between 19 and 17 Orchid Avenue is not waterproofed there is nothing to stop it from leaking then, now or in the future. … the water could come from anywhere i.e. there is no requirement for #17 to have anything built adjacent to #19 e.g. If #17 was a vacant site, there would be no reason that rain that lands adjacent to the basement wall does not seep into the soil and then through the wall.” [14] Ocean Pacifique later engaged its own civil engineer, Mr Cillekens of ADG Engineers (Aust) Pty Ltd. In his report dated 29 January 2025 (First ADG report), Mr Cillekens stated: “The basement wall along the common boundary with 17 Orchid consists of a combination of block retaining walls, concrete retaining walls and contiguous pile retaining walls.” And later: “The cause of the basement wall leakage at 19 Orchid is primarily due to the basement walls not being waterproof. … Water can reasonably be expected in the sand layer behind the retaining wall at times. The basement retaining walls are not waterproofed hence can be described as “wet wall”. Wet walls will leak when in contact with wet soils.” [15] I accept this evidence concerning the design and construction of the basement retaining wall. Has water leaked through the retaining wall? [16] Ocean Pacifique tendered videos showing water entering the basement of 19 Orchid Avenue through the retaining wall. This evidence is consistent with the engineering evidence. [17] The JHA report stated: -- 5 of 18 -- 6 “The besser block external wall has obvious signs of water staining and efflorescence due to water entering the wall. The concrete floor had water staining and a number of items in the area were water saturated.” [18] The JHA report concluded that water ingress had occurred into the basement of 19 Orchid Avenue. [19] The First ADG report stated: “The contiguous pile retaining basement wall shows loss of sand and evidence of fluid ingress. … The block and concrete retaining walls show evidence of fluid ingress for the entire extent of the wall. The block wall at the junction with the contiguous piled wall has holes where there is evidence of more significant fluid ingress. … All basement walls were dry at the time of inspection but showed evidence of leakage. The basement wall appears to leak only under major rainfall periods.” [20] When Mr Cillekens conducted tests with low water flows over the paved area at the rear of 17 Orchid Avenue, he found those water flows did not induce leakage through the basement retaining wall of 19 Orchid Avenue. [21] I accept Mr Cillekens’ evidence that the retaining wall does allow water to enter the basement of 19 Orchid Avenue, but that this only occurs during major rainfall periods. Has contaminated material leaked through the retaining wall? [22] Ocean Pacifique obtained a report dated 18 May 2019 from Dial-A-Plumber (Plumbing report), which stated that the grease trap at the rear courtyard of 17 Orchid Avenue was not working, and this had caused wastewater, grease and oils from 17 Orchid Avenue to back up and leak into the basement of 19 Orchid Avenue. [23] The author of the Plumbing report is not identified. Nor is the basis for that person’s opinion that wastewater, grease and oils from 17 Orchid Avenue leaked into the basement of 19 Orchid Avenue. In those circumstances, I give no weight to the Plumbing report as evidence that contaminants emanating from 17 Orchid Avenue leaked through the retaining wall into the basement of 19 Orchid Avenue. [24] On 28 August 2022, Ocean Pacifique obtained a report from Mr Pickering of Biodec Pty Ltd (Biodec report). Mr Pickering has qualifications and experience in detecting the presence of biological pollutants in buildings and assessing their effects on occupants, as well as undertaking remediation works to rectify such issues. His report addresses the presence of mould in the basement of 19 Orchid Avenue and the steps required to remove that mould. -- 6 of 18 -- 7 [25] In the Biodec report, Mr Pickering states as follows under the heading “Background Information”: “The basement has experienced water penetration through the south elevation wall due to a defect in the neighbouring property trade waste sump. The organic load of the water source along with the resultant moisture has prompted mould growth to the plasterboard lining and framing along the south wall and visible mould has now appeared on other surfaces including contents.” [26] It is not clear whether this statement constitutes a conclusion that Mr Pickering has reached or simply records background information provided to him by Ocean Pacifique. If it is the former, Mr Pickering does not explain the basis for concluding that the water penetration through the retaining wall was due to a defect in the trade waste sump on 17 Orchid Avenue, or that the water entering the basement of 19 Orchid Avenue had an organic load that contributed to the growth of mould. For those reasons, I give no weight to the Biodec report as evidence that contaminants emanating from 17 Orchid Avenue leaked through the retaining wall into the basement of 19 Orchid Avenue. [27] The JHA report recommended that a sample of water in the sump in the basement of 19 Orchid Avenue be tested for grease and fat solids to substantiate the statements made in the Plumbing report. [28] In the First ADG report, Mr Cillekens stated that the stormwater drainage pit adjacent to the grease trap contained water and grease, indicating that, at times, grease – most likely from the grease trap – enters the stormwater system on 17 Orchid Avenue. Mr Cillekens also said this could be verified by testing the residue found in the basement of 19 Orchid Avenue, and in the rear courtyard of 17 Orchid Avenue. [29] Ocean Pacifique engaged Mr Butler of Precise Environmental Pty Ltd as a site contamination specialist to analyse water samples collected from the stormwater drain adjacent to the grease trap on 17 Orchid Avenue and water samples collected from the bottom of the retaining wall in the basement of 19 Orchid Avenue. [30] In a report dated 3 April 2025 (First Precise Environmental report), Mr Butler recorded the following under the heading “Outcome and Recommended Actions”: “The sampling and analysis of water from the stormwater gully pit in 17 Orchid Avenue returned results that confirm contamination with oil and grease, nutrients, biochemical oxygen demand, and electrical conductivity in the brackish to saline range. This may have occurred from the direct overtopping of the grease trap and/or the manual discarding of kitchen grey water or other liquid waste to the immediate ground area and drain. Oil and grease staining visible on the concrete pavements and up the site building walls … indicate the possibility of localised flooding of the area which may in turn have flooded the grease trap and caused overtopping via that mechanism. The side wall staining may also be a result of rain drop splash. -- 7 of 18 -- 8 In contrast, the results from the collected water at the bottom of the basement wall in 19 Orchid Avenue had no detectable oil and grease, nutrients generally >4 times lower and electrical conductivity indicative of freshwater. It is possible that sand surrounding the basement wall and stormwater pipe trenching is inhibiting the migration of oil and grease and that other freshwater (e.g. rainwater ingress) inputs are diluting / mixing with water that is making its way through the basement wall. It is also possible that the differences in chemical signature between the two water samples may infer limited to no connection between the ‘contaminated’ stormwater within the gully pit in 17 Orchid Avenue and water entering the basement at 19 Orchid Avenue.” [31] Mr Butler took further samples and repeated his analysis. The analysis of those further samples is provided in a report dated 7 July 2025 (Second Precise Environmental report). The results of that analysis were the same as in the earlier report. [32] Based on the analysis performed by Mr Butler, I am not satisfied that contaminants emanating from 17 Orchid Avenue have entered, or are continuing to enter, the basement of 19 Orchid Avenue through the retaining wall. What is the source of the water leakage? [33] Following the delivery of the First OSKA report, the parties jointly appointed Mr Maxwell to clean and test the stormwater drainage pipes and the general sanitary drainage system at 17 Orchid Avenue. Mr Maxwell performed that work on 30 September 2024 and 14 October 2024. He set out the results of his assessment and the conclusions he drew as to the cause of water leakage in a further report dated 24 October 2024 (Second OSKA report). [34] On 30 September 2024, Mr Maxwell cleaned the stormwater pipe system on 17 Orchid Avenue, noting that there was significant debris and greasy build up present in those pipes. He also observed that the pipes were not laid to a consistent grade. He stated that the pipes hold water due to a lack of grade, even after cleaning. [35] When Mr Maxwell hydrostatically tested the same pipework, by capping and filling the pipework with water, he observed that the water did not remain in the pipes but leached out into the soil and sand in the ground around the pipes and up through the concrete slab at the rear of 17 Orchid Avenue. Mr Maxwell recorded that on that occasion there was only slight evidence of water leaking through the basement retaining wall in one location under 19 Orchid Avenue. [36] Mr Maxwell attempted to undertake smoke testing on the stormwater pipes to identify locations where water might be leaking. That smoke testing was unsuccessful. [37] On 14 October 2024, Mr Maxwell repeated the smoke testing of the stormwater pipe system on 17 Orchid Avenue. On this occasion that testing showed that smoke escaped from the pipes and up through the cracks in the concrete slab. There was also evidence of smoke coming through the basement retaining wall in one location under 19 Orchid Avenue. -- 8 of 18 -- 9 [38] Mr Maxwell pumped out and cleaned the grease trap before subjecting it to a hydrostatic pressure test. That test demonstrated that the grease trap and associated pipe work did not leak water into the surrounding ground. [39] Mr Maxwell also stated that the stormwater drainage system on 17 Orchid Avenue did not meet existing standards in terms of its capacity to discharge stormwater during rain events. [40] Mr Maxwell set out his conclusion in the Second OSKA report as follows: “Based on the site inspection it was my conclusion that water that emanates through the non-waterproof wall (of #19 Orchid Avenue) originates in part from wind driven rain that runs down the southern building wall of #19 Orchid Avenue and in part from rainwater drainage through unsealed pipework, stormwater gullies and cracks/joins in concrete of #17 Orchid Avenue. It is also concluded that the source of the water does not originate from the grease trap but rather the greasy nature of debris found in the stormwater system (originating from mop buckets and the like poured into the stormwater gully adjacent to the grease trap). For the reasons outlined above it is therefore my opinion that if the stormwater system of #17 Orchid Avenue was upgraded to meet current Australian Standards the basement wall of #19 Orchid Avenue would or could still potentially leak.” [41] The “southern building wall of #19 Orchid Avenue” which Mr Maxwell referred to is a six-storey wall constructed above the basement retaining wall along the boundary with 17 Orchid Avenue. [42] Mr Cillekens also referred to the southern wall of the building on 19 Orchid Avenue in the First ADG report, noting that wind from the south drives rain onto that wall resulting in additional runoff onto the rear courtyard on 17 Orchid Avenue. Wind and weather events from the south are the predominant major weather events on the Gold Coast. The additional run-off from the southern wall of 19 Orchid Avenue impacts the performance of the stormwater drainage system on 17 Orchid Avenue. That system, in common with older buildings, is not designed to drain major rainfall events. In those circumstances, surcharging of the system is to be expected during periods of high rainfall. The additional runoff from the southern wall of 19 Orchid Avenue causes extra surcharge of the system. When the system surcharges, water travels through cracks in the concrete slab on 17 Orchid Avenue and infiltrates the sands behind the basement retaining wall on 19 Orchid Avenue. [43] Mr Cilleken recommended that the rainwater runoff from the southern wall should be captured and managed within the boundary of 19 Orchid Avenue to prevent additional surcharging of the stormwater drainage system on 17 Orchid Avenue. There is no evidence that Ocean Pacifique acted on this recommendation. [44] In paragraphs 60 to 62 of the First ADG Report, Mr Cilleken provided the following responses to questions about the source of the water entering the basement: “60. What is the source of the water ingress into Orchid 19? -- 9 of 18 -- 10 Response – The water ingress to 19 Orchid is generated due to wet sands behind the No 19 Orchid retaining walls. The wet soils are due in part by the surcharging and ponding of the 17 Orchid stormwater system. Other contributions to the wet sands are due to natural infiltration to the water table of any surrounding properties. 61. Does the water ingress originate solely from Orchid 17? Response – The water ingress is not solely originating from 17 Orchid’s site. Some of the ingress is due to the runoff from 19 Orchid’s six-level boundary wall which has no visible rainwater management system. Some water could be due to natural infiltration from other properties. … 62. Does the water ingress originate from some other source or sources? Response – The water ingress is due to major rainfall events causing surcharge of the 17 Orchid’s drainage system and other adjacent property natural ground water infiltration.” [45] Mr Cillekens also stated in the First ADG report that greasy contaminants were evident in the stormwater drainage system on 17 Orchid Avenue. Those contaminants appeared to originate from the grease trap which was not watertight or gastight. [46] In a further report dated 23 June 2025 (Second ADG report), Mr Cillekens explained that the stormwater drainage system on 17 Orchid Avenue is “limited by low falls, pump duty-point, pinched rising main and submerged exit lines”. The system has a discharge capacity of approximately 8 litres per second. This is not sufficient to accommodate a 1 in 1 year rainfall event which requires a discharge capacity of approximately 16 litres per second. Consequently, the stormwater drainage system is subject to regular surcharge. [47] Mr Cillekens also noted in the Second ADG report that the stormwater drainage system on 17 Orchid Avenue had been repaired to prevent leakage, but that the stormwater pipe near the grease trap was full of greasy turbid water. The stormwater pipes contained blockages of fatty grease and the pipes leading into in the stormwater pump out pit at the rear of 17 Orchid Avenue were covered in fatty grease. Mr Cillekens observed that the lid of the grease trap was broken and required replacement. He stated that the courtyard area adjacent to the grease trap was being used as a rubbish bin wash down area. A hot water pressure line was affixed to the wall near this wash down area. Washdown effluent was being discharged to the stormwater drainage system. [48] In the Second Precise Environmental report, Mr Butler also referred to the presence of the hot water hose and kitchen waste bins in the courtyard area near the stormwater gully pit. He expressed the view that the contamination of water samples taken from the stormwater gully pit in 17 Orchid Avenue was most likely due to hot water wash down of kitchen equipment and waste bins. [49] The evidence from Mr Cillekens and Mr Butler concerning the discharge of washdown effluent to the stormwater drainage system on 17 Orchid Avenue is supported by videos which appear to show wastewater from the restaurant being deposited into the stormwater gully pit. -- 10 of 18 -- 11 [50] I accept the evidence that washdown effluent from the restaurant at 17 Orchid Avenue has been discharged to the stormwater drainage system. However, I am not satisfied that this contributes to the leaking of water from 17 Orchid Avenue into the basement of 19 Orchid Avenue. [51] Instead, I am satisfied on the evidence set out above that during periods of high rainfall the limited capacity of the stormwater drainage system, combined with the additional run-off from the southern wall of the building on 19 Orchid Avenue, results in water pooling in the rear paved area of 17 Orchid Avenue. The pooled water seeps through cracks in the concrete slab into the ground below, adjacent to the basement retaining wall on 19 Orchid Avenue. From there, along with groundwater from other adjacent properties, it enters the basement of 19 Orchid Avenue because the retaining wall was not designed or constructed to be waterproof. [52] The evidence does not satisfy me that this pooling of water would have been avoided if washdown effluent from the restaurant on the ground floor of 17 Orchid Avenue had not been discharged to the stormwater drainage system. Nor is there any evidence that the discharge of washdown effluent to the stormwater drainage system has increased the frequency or extent of this pooling of water. Is Orchid 17 liable in nuisance? [53] A nuisance can be defined as an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.1 In general, an unlawful interference is an unreasonable interference with the land.2 The action, or failure to act, that is said to give rise to the nuisance must cause an interference with the claimant’s reasonable enjoyment of its land.3 The test is what is reasonable according to the ordinary usages of people living in a particular society.4 [54] Ocean Pacifique’ case in nuisance is that Orchid 17 has allowed the stormwater drains on its property “to be regularly blocked with kitchen waste”. It submits that the low discharge capability of the stormwater drainage system on 17 Orchid Avenue, and Orchid 17’s resistance to upgrading that system, make it important that waste does not find its way into the stormwater system because “[w]hen this occurs [Orchid 17]’s property floods causing water to enter [Ocean Pacifique]’s property”. [55] I do not accept those submissions. The references in the engineering reports to the presence of grease and other contaminants in the stormwater drainage system of 17 Orchid Avenue (see [34], [45], [47] and [48] above) are not a sufficient basis to find that Orchid 17 has allowed the stormwater drains to be regularly blocked with kitchen waste. Nor is there a basis in the evidence to find that Orchid 17’s property floods when the stormwater drains become blocked with kitchen waste (see [52] above). [56] As I have already explained, Orchid 17’s property floods when the stormwater drainage system surcharges during periods of high rainfall, including because of additional runoff from the southern wall of 19 Orchid Avenue. I am satisfied that would still occur if kitchen washdown effluent was not discharged to the stormwater 1 Gartner v Kidman (1962) 108 CLR 12, 22; Hargrave v Goldman (1963) 110 CLR 40, 59. 2 State of Queensland v Michael Vincent Baker Superannuation Fund Pty Ltd [2019] 2 Qd R 146, 188 [193]. 3 Lawrence v Fen Tigers Ltd [2014] AC 822, 830 [3]. 4 Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903; Elston v Dore (1982) 149 CLR 480, 488. -- 11 of 18 -- 12 drainage system. This finding means that, even if I was to accept Ocean Pacifique’s submission that Orchid 17 has “allowed” the operator of the restaurant to discharge kitchen washdown effluent to the stormwater drainage system, that conduct cannot be said to give rise to the claimed nuisance. Consequently, it is unnecessary to resolve the issue as to whether Orchid 17 has control over the stormwater gully pit or the restaurant’s kitchen staff. [57] Given my findings at [51]-[52] above, the only basis upon which Ocean Pacifique’s claim in nuisance could succeed is if Orchid 17 is shown to have acted unreasonably in failing to upgrade the stormwater drainage system to abate the pooling of water in the courtyard area during periods of high rainfall. That is not Ocean Pacifique’s case. Shortly before trial Ocean Pacifique applied for leave to amend its statement of claim, including to plead Orchid 17’s failure to upgrade the stormwater drainage system and the grease trap to comply with relevant building standards or local government regulations as a basis for the claim in both nuisance and negligence. Leave to amend to plead that case was refused.5 [58] In any event, it is difficult to see how Orchid 17 could be found to have acted unreasonably in failing to upgrade the stormwater drainage system when regard is had to: (a) the building on 17 Orchid Avenue, including the stormwater drainage system, having been constructed before the building on 19 Orchid Avenue; (b) the southern wall of the building on 19 Orchid Avenue contributing to the pooling of water in the courtyard area of 17 Orchid Avenue; (c) the basement retaining wall in 19 Orchid Avenue having been designed and constructed as a “wet wall” which was not intended to be waterproof. [59] In the First ADG report, Mr Cilleken said it is reasonable to expect that there would be water in the sand layer behind the basement retaining wall at times. Many basement walls in Gold Coast buildings are constructed as wet walls and leak when the retained soils behind the walls are wet. The property owner is responsible for the performance of their building. If a dry basement is required, it is the owner’s responsibility to ensure that the basement retaining wall is waterproofed. I agree with those statements. To my mind, they reflect what is reasonable according to the ordinary usages of people today. [60] Ultimately, I am not satisfied that Orchid 17 has caused an unreasonable interference with the land at 19 Orchid Avenue. The real cause of the entry of water into the basement is Ocean Pacifique’s failure to waterproof the basement retaining wall. Ocean Pacifique’s claim in nuisance fails. [61] For completeness, I briefly address Ocean Pacifique’s claim that the water which leaked through the retaining wall caused physical damage to 19 Orchid Avenue.6 5 Body Corporate for Ocean Pacifique CTS 8379 v Body Corporate for Orchid 17 CTS 11906 [2025] QSC 260. 6 Noting that physical damage to the plaintiff’s land is not an element of the cause of action in private nuisance: Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245, 248. -- 12 of 18 -- 13 [62] The only property of Ocean Pacifique affected by the water was the basement retaining wall itself, that being common property of the community titles scheme. [63] In the KMA report, Mr Aldrich notes the existence of gaps and cracks between the piers of the basement retaining wall and at the interface between the end of the section of piers and the block section of the retaining wall. He stated that the gaps and cracks between the piers are due to the construction process and typical deterioration over time; the gaps between the end of the section of piers and the block section is typical of minor differential movement and minor differential expansion and contraction between dissimilar construction elements. Mr Aldrich’s opinion is that the gaps and cracks are not caused by water leaking from 17 Orchid Avenue. [64] Mr Cilleken expressed the same opinion in the First ADG report – that because the basement retaining wall is a “wet wall” that is designed to allow water penetration, any water entering the basement would not cause any damage other than what the designers of the wall envisaged. [65] In those circumstances, there would have been no basis to find that (if it constituted a nuisance) the water leaking through the basement retaining wall caused physical damage to property of Ocean Pacifique. Is Orchid 17 liable in negligence? [66] Ocean Pacifique alleges that Orchid 17 owed it a duty to take reasonable care to ensure that water and contaminated material did not leak through the basement retaining wall into 19 Orchid Avenue. That duty is said to arise from the facts that: (a) the retaining wall ran along the common boundary; and (b) it was reasonably foreseeable that Ocean Pacifique would suffer loss and damage if Orchid 17 did not take reasonable steps to: (i) ensure that the grease trap on 17 Orchid Avenue did not overflow; (ii) otherwise ensure that water and contaminated material did not enter 19 Orchid Avenue from 17 Orchid Avenue; (iii) prevent kitchen waste being washed into the stormwater gully pit on 17 Orchid Avenue. [67] Accepting that Orchid 17 owed such a duty, Ocean Pacifique must also establish that Orchid 17 breached the duty and that this breach was a cause of the damage suffered. [68] A person does not breach a duty to take precautions against a risk of harm unless that risk was both foreseeable and not insignificant, and that a reasonable person in that person’s position would have taken the precautions. In deciding whether a reasonable person would have taken precautions against the risk of harm, the court is to consider (among other relevant things) the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm.7 7 Section 9, Civil Liability Act 2003 (Qld). -- 13 of 18 -- 14 [69] The determination whether a breach of duty caused particular harm is divided into two elements.8 The first element is factual causation, meaning that the breach of duty was a necessary condition of the occurrence of the harm. This element is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred?9 The second element is that it is appropriate for the scope of the liability of the person in breach to extend to the harm caused. [70] In this case, I am not satisfied that any failure by Orchid 17 to take steps to ensure that the grease trap on 17 Orchid Avenue did not overflow, or to prevent kitchen waste being washed into the stormwater gully pit, amounted to a breach of duty. [71] For the reasons set out in addressing the claim in nuisance, the risk of harm in this case was not entry of water into 19 Orchid Avenue resulting from the grease trap overflowing or from kitchen waste being washed into the stormwater drainage system. The relevant risk of harm was pooling of water in the rear paved area of 17 Orchid Avenue due to the stormwater drainage system’s limited discharge capacity resulting in it surcharging during periods of high rainfall. [72] Even if a failure to prevent the grease trap overflowing, or to prevent kitchen waste being washed into the stormwater gully pit, was found to be a breach of duty, neither would satisfy the element of factual causation. I am satisfied that if Orchid 17 had taken reasonable steps to prevent the grease trap overflowing, and to prevent kitchen waste being washed into the stormwater gully pit, water would still have pooled on the courtyard area of 17 Orchid Avenue during periods of high rainfall due to the limited discharge capacity of the stormwater drainage system. [73] That leaves Ocean Pacifique’s more general allegation that Orchid 17 breached its duty by failing to take any adequate steps to prevent water and contaminated material from escaping 17 Orchid Avenue and entering the basement of 19 Orchid Avenue. [74] On the engineering evidence I have accepted, the only adequate step that Orchid 17 could have taken was to upgrade the stormwater drainage system to increase its discharge capacity and prevent water pooling in the rear courtyard during periods of high rainfall. It was not Ocean Pacifique’s case that Orchid 17’s duty to take reasonable steps extended to upgrading the stormwater drainage system (see [57] above). [75] In any event, if that case had been raised, I would not have concluded that a reasonable person in orchid 17’s position would have upgraded the stormwater drainage system. Nor would I have concluded that it would be appropriate to extend the scope of any liability of Orchid 17 arising from a failure to upgrade the stormwater drainage system to extend to damage caused by water entering the basement of 19 Orchid Avenue in circumstances where, as previously explained, runoff from the southern wall of 19 Orchid Avenue contributes to the surcharging of the stormwater drainage system and the basement retaining wall was designed and constructed as a “wet wall” which was not intended to be waterproof. [76] For these reasons, Ocean Pacifique’s claim in negligence also fails. 8 Section 11, Civil Liability Act 2003 (Qld). 9 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 440 [45]. -- 14 of 18 -- 15 Orchid 17’s estoppel defences [77] I deal with this matter briefly as Ocean Pacifique has failed in its claims in nuisance and negligence. [78] Had it been necessary to decide, I would not have found that Ocean Pacifique is estopped, either in law or in equity, from asserting that remedial works recommended in the Plumbing report and the JHA report were not reasonable and adequate to prevent further leakage of water from 17 Orchid Avenue to 19 Orchid Avenue. [79] It is common ground that Mr Duffy (the chairman of Ocean Pacifique) provided copies of those reports to Mr Pugliese (the chairman of Orchid 17). [80] In cross-examination, Mr Duffy accepted that he and Mr Pugliese discussed that if all the steps recommended in those reports were completed the leakage problem in the basement of 19 Orchid Avenue would be solved. [81] It is also common ground that Orchid 17 undertook works that correspond with the recommendations in the reports. [82] Nevertheless, I am not satisfied that an estoppel arose. [83] In terms of estoppel in pais,10 the statement that the recommended works would solve the problem was not a representation of fact. At most, they were a statement of Mr Duffy’s belief after reading the advice set out in the reports. Mr Pugliese was not called to give evidence, but I infer from the fact that Orchid 17 undertook the works that he shared Mr Duffy’s belief. As events transpired that belief turned out to be wrong. But a shared belief that works will solve a problem is not the same as an assumption of fact that, whether the belief proves to be correct or not, the works were reasonable and adequate to prevent further water leakage. On the evidence, I am not satisfied that Orchid 17 adopted that assumption of fact (as Mr Pugliese did not give evidence to that effect), or that Mr Duffy’s statement caused Orchid 17 to adopt that assumption. [84] As to estoppel in equity,11 I am not satisfied that Mr Duffy’s statement led Mr Pugliese to assume or expect that if Orchid 17 undertook the works recommended in the reports, Ocean Pacifique would accept the works as being reasonable and adequate and not subsequently contend to the contrary, even if those works did not solve the water leakage. Mr Pugliese did not give evidence that he made such an assumption or held such an expectation. Even if that evidence had been given, I would not have accepted that Mr Duffy’s statement of belief induced Mr Pugliese to adopt the assumption or expectation. Conclusion on Ocean Pacifique’s claim [85] Ocean Pacifique has failed to establish that Orchid 17 is liable, in nuisance or negligence, for the entry of water into the basement of 19 Orchid Avenue. Its claims for damages for loss alleged to have been suffered by reason of that water entry, and 10 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641, 674-676; Thompson v Palmer (1933) 49 CLR 507, 547. 11 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 428-429. -- 15 of 18 -- 16 for mandatory injunctive relief compelling Orchid 17 to take steps to address the water leakage, must be dismissed. Orchid 17’s counterclaim Is Ocean Pacifique liable to repay $17,831 to Orchid 17? [86] This aspect of the counterclaim concerns a deed dated 19 July 2019 between Ocean Pacifique and Orchid 17. [87] Clause 3 of the deed recorded that Orchid 17 had paid the sum of $17,831 to Ocean Pacifique to replace a pump and fire equipment. [88] Importantly, clause 3.4 provided that if minutes of a meeting of Ocean Pacifique ratifying the deed were not provided within 90 days, Ocean Pacifique would repay the $17,831 within three days of written demand. [89] The deed was the subject of earlier proceedings,12 in which I found: (a) an adjudicator from the Office of the Commissioner for Body Corporate and Community Management had declared that the general meetings of the members of Ocean Pacifique at which the question whether to ratify the deed was considered were void for irregularity; (b) the members of Ocean Pacifique did not lawfully resolve to ratify the deed by reason of the irregularities which led the adjudicator to declare void the general meetings and all resolutions passed at those meetings; (c) in those circumstances, the minutes of those general meetings that were provided to Orchid 17 did not satisfy the requirement of clause 3.4 of the deed. [90] Those findings were not challenged or disturbed on appeal. [91] The solicitors for Orchid 17 wrote to the solicitors for Ocean Pacifique on 17 June 2022 demanding repayment of the sum of $17,831. [92] Ocean Pacifique has not repaid that amount. It accepts that the trigger mechanism for repayment under cl 3.4 of the deed has been engaged. However, it asserts that the $17,831 represents a loss it suffered because of water entering the basement of 19 Orchid Avenue which should be set off against the same amount claimed by Orchid 17 under the deed. As Ocean Pacifique’s claims in nuisance and negligence have failed that submission cannot be accepted. [93] Orchid 17 is entitled to payment of $17,831 under clause 3.4 of the deed. That sum became due and payable on 20 June 2022, three days after Orchid 17’s demand for payment was made. Orchid 17 is also entitled to interest in the amount of $5,184.83 up to the date of judgment.13 12 Body Corporate for Ocean Pacifique CTS 8379 v Pugliese [2022] QSC 246. 13 Section 58(3), Civil Proceedings Act 2011 (Qld). -- 16 of 18 -- 17 Is Ocean Pacifique liable to pay $9,286.20 for Mr Maxwell’s fees? [94] On 29 August 2024, the parties agreed to jointly appoint Mr Maxwell to clean and smoke test the stormwater drainage system and the general sanitary drainage system at 17 Orchid Avenue (see [33] above). Clause 4 of that agreement provided that the parties were to be equally liable for Mr Maxwell’s fees and expenses. [95] After this appointment, Mr Maxwell suggested that he also carry out hydrostatic tests of both systems. [96] On 18 September 2024, the solicitors for the parties exchanged emails agreeing to permit Mr Maxwell to undertake hydrostatic tests of the stormwater drainage pipes and the general sanitary drainage system at 17 Orchid Avenue if the smoke tests failed. [97] As already explained at [33]-[40] above, Mr Maxell performed that work and delivered the Second OSKA report. [98] On 24 October 2024, OSKA issued tax invoices to each of Ocean Pacifique and Orchid 17 for $9,286.20, being half of Mr Maxwell’s fees and expenses. [99] When Mr Maxwell delivered the Second OSKA report, it did not comply with r 429H of the Uniform Civil Procedure Rules 1999 (Qld). The report was not addressed to the court and Mr Maxwell did not confirm the matters set out in r 429H(4). [100] Mr Maxwell then delivered a revised version of the Second OSKA report which cured those non-compliances. [101] On 1 November 2024, Ocean Pacifique applied to adjourn a previous trial listing on the basis that the Second OSKA report would be of little or no assistance to either party or the court. Ocean Pacifique also sought leave to obtain further expert evidence. Kelly J adjourned the trial listing and granted the leave sought by Ocean Pacifique. In his reasons for making those orders, Kelly J made some criticisms about the Second OSKA report. [102] On 11 November 2024, Mr Duffy sent an email to OSKA stating that the Second OSKA report did not comply with the requirements for a report to the court so that OSKA’s invoice was invalid. [103] On 20 December 2024, Ocean Pacifique served a notice to admit facts on Orchid 17 which stated that Ocean Pacifique proposed to prove facts set out in the Second OSKA report and sought Orchid 17’s admission of those facts. It is difficult to reconcile the service of that notice with Ocean Pacifique’s earlier application for leave to obtain further expert evidence and Mr Duffy’s email to OSKA refusing to pay Ocean Pacifique’s share of the fee for the Second OSKA report. [104] On 23 December 2024, Orchid 17 provided its response to the notice to admit facts. The covering letter from Orchid 17’s solicitors stated that, having served the notice to admit facts, Ocean Pacifique had no basis to refuse to honour its obligation under clause 4 of the agreement to jointly appoint Mr Maxwell. The letter informed Ocean Pacifique that if it did not pay its half of the fee by 31 December 2024, Orchid 17 -- 17 of 18 -- 18 would pay Ocean Pacifique’s share to OSKA and amend its counterclaim to add a claim for contribution. [105] On 10 February 2025, Orchid 17 paid $9,286.20 to OSKA in satisfaction of the invoice issued to Ocean Pacifique. [106] Ocean Pacifique submits that it is not liable to contribute to Mr Maxwell’s fees because the Second OSKA report failed to achieve its purpose as a joint expert report. It relies on deficiencies in the report identified by Kelly J leading to the vacation of the earlier trial dates and the grant of leave for it to obtain further expert evidence from Mr Cillekens. It submits that Orchid 17 should bear the entire liability for Mr Maxwell’s fees because Orchid 17 continued to rely on the Second OSKA report. [107] I do not accept Ocean Pacifique’s submissions. [108] Nothing said by Kelly J in vacating the earlier trial dates and granting Ocean Pacifique leave to obtain further expert evidence altered the parties’ agreement as to how Mr Maxwell’s fees were to be paid. [109] Further, there was no total failure of consideration. Although Ocean Pacifique was dissatisfied with the Second OSKA report, it did not instruct Mr Cillekens to repeat the testing which was the subject of that report. In any event, the opinions expressed by Mr Cillekens as to the source of the water leaking into the basement of 19 Orchid Avenue (see [42]-[46] above) did not differ to any significant degree from the opinions which Mr Maxwell had expressed in the Second OSKA report. In any event, Ocean Pacifique relied on the content of the Second OSKA report in both its written opening and its closing submissions. [110] In those circumstances, Ocean Pacifique’s refusal to pay its half share of Mr Maxwell’s fees and costs breached clause 4 of the agreement made on 29 August 2024. [111] Orchid 17 has suffered loss because of that breach after it paid Ocean Pacifique’s share of the fees. It is entitled to recover that loss of $9,286.20 from Ocean Pacifique. It is also entitled to interest in the amount of $895.18 up to the date of judgment.14 Orders [112] The orders will be as follows: 1. The applicant’s claims are dismissed. 2. On the counterclaim, there be judgment for the respondent in the amount of $33,197.21 inclusive of interest. [113] I will hear the parties as to costs. 14 Section 58(3), Civil Proceedings Act 2011 (Qld). -- 18 of 18 --