Background
Helen and Frederick Maybury occupied unit 342 in the Contessa Condominiums, with Helen having purchased it in 2018. Gregory and Grietha Brodie owned units 341 and 351, including the unit above unit 342, which contained a swimming pool. The Mayburys alleged that alterations to the pool area and construction of a staircase between the Brodies’ units breached a waterproof membrane, allowing water to enter unit 342 and cause mould and other damage.
Although leaks had occurred before the purchase, the Mayburys alleged that they were told the historical problem had been fixed and did not learn of an ongoing leak until November 2020. They commenced proceedings in 2023, advancing claims in negligence, breach of statutory duties and private nuisance. The primary judge entered summary judgment against the negligence and statutory-duty claims and struck out parts of the nuisance pleading.
The Court’s Holding
The Court of Appeal unanimously allowed the appeal and set aside the challenged orders. It held that the Brodies had not established the clear case required for summary judgment on the ground that the negligence claim was filed outside Queensland’s six-year limitation period. The pleadings arguably alleged a continuing breach in failing to drain the pool and keep it empty, and disputed questions about the source, nature and timing of the damage required a trial.
The Court also held that summary judgment should not have been entered on the statutory-duty claims. Questions concerning s 167 of the Body Corporate and Community Management Act 1997 (Qld), the applicable by-law and s 115Q of the Land Title Act 1994 (Qld) had not been adequately explored and overlapped factually with the claims that would proceed to trial. Although the Court inclined to the view that s 115Q did not impose a positive repair obligation on the owner of the burdened lot, it did not finally determine the statutory claims.
The primary judge also erred by requiring the Mayburys to plead “fault” as an element of private nuisance. Applying the High Court’s formulation in Hunt Leather Pty Ltd v Transport for NSW, the Court held that a claimant must plead substantial interference with the ordinary use of land; lawful justification or excuse is then a matter for the defendant. The nuisance allegations therefore should not have been struck out for failure to plead fault.
Key Takeaways
- Summary judgment based on a limitation defence is appropriate only where the relevant damage and accrual facts can be determined clearly without a trial.
- A court applying Queensland’s summary-judgment rule must separately consider both whether the claim lacks a real prospect of success and whether there is no need for a trial.
- A private-nuisance claimant need not plead “fault” as an additional element once substantial interference with the ordinary use of land is alleged; justification or excuse is for the defendant to establish.
Why It Matters
The decision reinforces judicial caution when limitation periods depend on contested facts about latent building defects, continuing conduct and the time at which actionable damage arose. The existence of overlapping claims requiring trial may also weigh strongly against disposing summarily of one claim based on substantially the same facts.
For strata and property disputes, the judgment clarifies how private nuisance should be pleaded after Hunt Leather and leaves potentially important questions about civil liability under Queensland body-corporate legislation and community-management by-laws for determination at trial.