Hunter Water Corporation v The Owners of Strata Plan 16460

[2026] NSWCA 184

NSW Court of Appeal

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Interrogate

Catchwords

1. TORTS — nuisance — private nuisance — plaintiffs’ properties affected by rupture of defendant’s water main — level of generality at which to identify purpose of use — whether purpose of use common and ordinary — whether rupture of water main was caused by a latent defect — whether defendant established that its uses of lands were conveniently done — whether s 43A of Civil Liability Act 2002 (NSW) applicable
1. COSTS — Party/Party — whether exercise of costs discretion manifestly miscarried — where primary judge apportioned costs in respect of one issue but not others — where issues and evidence overlapped

Quick Take

Under the three-stage Hunt Leather test for private nuisance, the purpose of the defendant's use of land at the second stage should not be identified with such specificity as to defeat the object of the inquiry — namely, identifying whether the use serves an interest warranting recognition in the balancing exercise at the third stage. Descending to the particular method of repair goes beyond purpose and enters upon the means of use assessed at the third stage.
Where a defendant's use of land creates a risk (rather than a certainty) of substantial interference, the 'conveniently done' assessment at the third stage requires consideration of whether the means adopted reasonably minimised that risk, having regard to the likelihood the risk will materialise, the severity of interference if it does, and the relative interests of both parties. Where the means create a real risk of catastrophic interference, the defendant must show sufficient reason for adopting those means.
Section 43A of the Civil Liability Act 2002 (NSW) requires that the defendant's civil liability be 'based on' the exercise of, or failure to exercise, a special statutory power. There is a distinction between liability 'based on' such a power and conduct merely 'involving' it; a water authority's liability for leaving an excavated pipe uncovered overnight while water pressure increased was not based on any special statutory power, as the respondents were not required to prove the exercise or non-exercise of any statutory power to complete their cause of action.