Ocean Pacifique is a residential building at 19 Orchid Avenue, Surfers Paradise.
Water was getting into the basement. Its body corporate claimed the neighbouring ground floor restaurant at 17 Orchid Avenue was to blame due to blocked stormwater drainage, a grease trap and kitchen washdowns that sent water through the shared boundary retaining wall.
Unable to resolve the dispute in a neighbourly fashion, Ocean Pacifique resorted to a legal claim in negligence and in nuisance by which it was required to show an unreasonable ongoing interference with its use or enjoyment of its land.
There was no dispute that water could enter the basement during major rainfall. The real question was where it came from, and whether Orchid 17 was legally responsible for it.
Engineering evidence showed the retaining wall on the 19 Orchid Avenue side of the boundary was a “wet wall”: it permitted water to pass through and was not intended to be waterproof.
The Supreme Court accepted that water ingress occurred, but found it was consistent with that design.
The Court also accepted that Orchid 17’s older stormwater system could surcharge in heavy rain.
Yet the pooling near the rear of Orchid 17 was not solely a neighbour problem. Runoff from the southern wall of the Ocean Pacifique building added to it, and water could also arrive from surrounding properties and natural ground-water infiltration.
Water samples showed grease and other contaminants in Orchid 17’s drainage system, and washdown effluent from the restaurant had been discharged there.
But the Court was not satisfied that this caused the water to enter the Ocean Pacifique basement or that such contaminants had in fact entered it through the wall.
In the absence of that evidence, Justice Sean Cooper concluded Orchid 17 could not be held to have caused any ingress of water to the basement.
Neither had it acted unreasonably by not upgrading a pre-existing stormwater system, when an upgrade could not be proved it would have removed the effect of the non-waterproof wall and other sources of water.
Ocean Pacifique’s negligence claim failed for similar reasons, i.e. there was insufficient evidence that any conduct relating to the grease trap or restaurant washdown; or that any increase in the Orchid 17 drainage system’s discharge capacity had caused the water penetration.
