Written by Sindri Bergsson
Enkelmann v Stewart [2026] QCA 67 and the Post-Hunt Leather Landscape for Insurer Recoveries.
The Facts
A farmer (Enkelmann) builds a levee on his land to keep floodwater off his cotton crop. It also redirects that water onto his neighbour’s land, causing erosion. The neighbour brought proceedings in nuisance (and negligence) against the Enkelmanns. The primary judge found in favour of the neighbour (Stewart). The Enkelmanns appealed to the Queensland Court of Appeal.
He argued that he was simply protecting his own property in the ordinary way that farmers do.
That argument failed before the Queensland Court of Appeal in Enkelmann v Stewart [2026] QCA 67. It failed because of a fundamental shift in how Australian courts now approach claims for private nuisance, following the High Court’s landmark decision in Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53.
The onus of proof in nuisance claims has changed, and this is the first decision applying the new law.
The Old Approach
Private nuisance has always been available where a defendant’s use of land causes a substantial and unreasonable interference with a neighbouring occupier’s use and enjoyment of their land. In theory, it was a natural fit for many property damage recovery scenarios: water ingress from a neighbour’s blocked drain, runoff redirected by landscaping, or structural damage from encroaching tree roots.
However, as a result of the High Court’s decision in Hunt Leather in December 2025, establishing liability in nuisance claims now operates as follows:
- Step One — The plaintiff establishes substantial interference with their ordinary use and enjoyment of land, caused by the defendant’s use of other land. Generally, if the incident caused damage to property this will be enough to establish ‘substantial interference’.
- Step Two— The onus then shifts to the defendant to prove a lawful ground of justification or excuse. To discharge this onus, the defendant must establish both that:
- its use of land was common and ordinary (judged by the locality and the objectively reasonable expectations for land use in that area); and
- that use was “conveniently done” — that is, undertaken with proper consideration for the interests of the plaintiff, using means that reasonably minimised the extent of the interference.
The Court of Appeal’s Analysis
The Court of Appeal dismissed the appeal, applying the Hunt Leather framework at each stage.
Substantial interference: The Court confirmed that the substantial interference test is a question of fact involving a qualitative assessment. Critically, it does not require the plaintiff to prove financial impact in quantified terms. On the facts, physical interference with the Stewarts’ land by way of ongoing erosion and silt deposition over years readily satisfied this threshold.
Common and ordinary use: The Court accepted that building a levee to mitigate flooding was, in the context of cotton farming, a common and ordinary use of rural land. This concession by the Court was not, however, enough to save the Enkelmanns. The inquiry moved to the second limb.
Conveniently done: This was the determinative issue. The Court found that the Enkelmanns’ construction and maintenance of the levee was not directed at minimising harm to the Stewarts at all. Rather, the evidence showed their conduct was “exclusively directed at minimising the imagined harm to themselves”. There was no evidence that the Enkelmanns had turned their minds to the impact on their neighbours, let alone that they had taken steps to minimise it. Without that, they could not establish that the levee was “conveniently done”.
The appeal was dismissed. The Enkelmanns were liable in nuisance.
What This Means for Insurer Recoveries
A recovery investigation should focus on:
- Documenting the nature, extent and duration of the interference with the insured property (photographs, expert reports, drainage assessments, records of damage).
- Establishing causation — that the interference to the insured’s land was caused by the defendant’s use of its land.
- Gathering evidence that the defendant took no, or inadequate, steps to consider the impact on the insured’s property — as in Enkelmann, this can be highly significant on the “conveniently done” question.
The combined effect of Hunt Leather and Enkelmann is that nuisance is now a more viable recovery pathway in property damage claims involving water damage, flood redirection, drainage failures, tree encroachment, and construction interference.
Insurers should be taking a more aggressive approach with their potential nuisance claims.
If you wish to discuss any of the above, please call Sindri Bergsson on 02 9044 3263 or one of the Ligeti Partners team members on 03 9947 4500.
