Ya Jun Tang v Charbel Tannous

2026/00016256

TORTS – Mr and Ms Tang (the applicants) seek to appeal from the orders of Cole DCJ, requiring that the applicants repair and reconfigure their stormwater drainage system, awarding $99,382.01 in damages, and dismissing the applicants' cross-claim. Leave is required under s 127(2)(c) of the District Court Act 1973 (NSW) as the matter at issue on appeal is below $100,000. Although Mr Tannous (the respondent) sought above $100,000 at trial, the damages finding is not challenged by the respondent. The "matter at issue" is determined not by the original claim but instead by the value in the appeal: Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 [80]. The proceedings arise out of a dispute between neighbouring landowners regarding recurrent stormwater intrusion from the applicant's higher property (No 28) into the respondent's property (No 4), causing flooding of the backyard and contamination and damage to the swimming pool. The respondent alleged that the cause of the water ingress was the applicants' failure to maintain and repair the stormwater drainage system located within a drainage easement benefitting their land, bringing a claim in private nuisance. The applicants denied responsibility, attributing the flooding to demolition works, excavations, and the removal of a kerb. The applicants further cross-claimed under s 177 of the Conveyancing Act 1919 (NSW) for alleged loss of support caused by the respondent's building works. Her Honour held that the stormwater ingress constituted a private nuisance and that the applicants bore responsibility due to their failure to address the stormwater system serving their property. Her Honour found that the blocked and deformed stormwater pipe was the dominant cause of the repeated flooding and damage, rejecting arguments that (i) the respondent caused the problem through excavation and kerb removal and (ii) the applicants' cross-claim for loss of support. On appeal, the applicants contend, inter alia, that the primary judge erred by (i) making of several factual findings relating to the kerb existence and removal, (ii) determining the existence and removal of the kerb by reference to perceived motive rather than evidence, (iii) mischaracterising the cross-claim as stormwater nuisance instead of s 177, and (iv) making a mandatory order which is incapable of performance, namely, the repairing of a pipe which requires third-party Council approval.

Tannous v Tang [2025] NSWDC 529