Bonnici & Anor v Ku-ring-gai Municipal Council

Supreme Court of NSW|2001-06-19|Before: Sperling J, Mr P

CITATION : Bonnici & Anor v Ku-ring-gai Municipal Council [2001] NSWSC 1190 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 13609/85 19 June 2001 21 June 2001 26 - 29 June 2001 HEARING DATE(S) : 2 - 5 July 2001 6 - 8 August 2001 10 August 2001 12 December 2001 19 December 2001 JUDGMENT DATE : 21 December 2001

Joseph Anthony Bonnici PARTIES : Sheryll Ann Bonnici Ku-ring-gai Municipal Council JUDGMENT OF : Sperling J at 1

COUNSEL : Mr P Tomasetti for the Plaintiffs Dr G Flick SC with Mr A Pickles for the Defendant SOLICITORS : Hunter Lawyers for the Plaintiffs Abbott Tout Solicitors for the Defendant CATCHWORDS : Nuisance - form of injunction - no other question of principle LEGISLATION CITED : Supreme Court Rules, Pt 51 r 15 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 CASES CITED : Kennard v Cory Brothers & Co. Ltd [1922] 1 Ch 265 Malliate v Sharpe [2001] NSWSC 1057 DECISION : See paragraph 26 of the judgment.

8 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13609/85 Bonnici & Anor v Ku-ring-gai Municipal Council

Judgment 1 His Honour: I refer to my judgment published on 12 December 2001. Paragraph numbers below relate to that judgment. 2 On 19 December 2001, counsel attended to speak to a minute of orders drafted by the plaintiffs' counsel. I have now marked that minute 12 for identification, and it will be placed with the papers.

Correction 3 First, I acknowledge the slip in paragraph [233] (5) of my judgment. The correct figure is $12,887.30 (see [229]). I have revised the edition of this judgment on the court file accordingly.

Injunction 4 In paragraph [232] I said that, subject to matters of detail and fine tuning, the plaintiffs are entitled to relief including the following: (1) An order declaring that, as at commencement of these proceedings and since, the defendant has been guilty of nuisance in causing or allowing stormwater from St Johns Avenue, Gordon, to flow, directly and indirectly, onto the plaintiffs' land, No. 48 St Johns Avenue, Gordon. (2) That the defendant, its servants and agents be restrained from causing or allowing stormwater to flow, whether directly or indirectly, from St Johns Avenue, Gordon, and from the footpath adjacent thereto onto the plaintiffs' land, No. 48 St Johns Avenue, Gordon. (3) The foregoing injunction should be suspended for 6 months. 5 The plaintiffs propose an injunction in the form of paragraph (2) above. The defendant opposes that formulation, submitting that an injunction in that form would not be capable of being complied with literally and with certainty. In particular, the defendant says that, under the proposed wording, even a drop of water would be a breach of the injunction and that the wording does not specify the standard to which abatement work should be carried out. The latter point relates to evidence received concerning various standards in relation to municipal drainage works which have been promulgated and / or observed so far as practicable, at various times, (such as, for example, sufficient to accommodate stormwater underground, arising from a storm event with an average recurrence interval (ARI) of 20 years or less, with provision for floodway accommodation above ground for a storm event with an ARI of 100 years). 6 The orders made by consent on 20 September 1985 included the following order: 1. The Defendant its servants and agents be restrained from permitting, allowing or causing the flow of water from St. Johns Avenue, Gordon and the footpath adjacent thereto onto the Plaintiff's land at No. 48 St. Johns Avenue, Gordon ("the land") so as to create a nuisance. 7 On 11 November 1986, further consent orders were made, vacating the orders of 20 September 1985, but including an order in the same terms as order 1 above. 8 A problem arising from the orders of 11 November 1986 was that there was no agreement or determination as to whether the situation existing at that time constituted an actionable nuisance. That was a contested issue in the hearing before me. I decided that it did and that the nuisance has continued despite works since carried out by the defendant. The necessary implication is that the defendant has been in breach of the injunction made by consent on 11 November 1986 from that date to the present time. 9 The wording of the 1986 injunction, insofar as it includes the qualifying words "so as to create a nuisance", is close to the conventional form for an injunction to restrain the continuation of a nuisance. The conventional formula is "so as to occasion a nuisance" which covers continuation as well as initiation with greater certainty: Seton's Forms of Judgments and Orders, 7th ed. (1912), pp 595-597; Spry, The Principles of Equitable Remedies, 5th ed. (Law Book, 1997), p 375; Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3rd ed. (Sydney: Butterworths, 1992), [21,100]; Kennard v Cory Brothers & Co. Ltd [1922] 1 Ch 265, 340; Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337, 348; Malliate v Sharpe [2001] NSWSC 1057 (Campbell J, 13 Dec 2001) at [50]-[52]. 10 The conventional formula is utilised where no more specific order is made as to what the defendant is to do or not do: see Spry 374-5; Meagher et al. at [21,100]. No more specific order is warranted in the present case. At the hearing before me, the plaintiffs did not seek a mandatory injunction that the defendant carry out any specific works (nor would any such order have been made on the available evidence). The defendant, for its part, did not, on 19 December 2001, submit a formulation limiting the defendant's obligation under the proposed injunction by reference to a particular standard, although counsel for the defendant offered to do so if the court was minded to specify a standard in principle. The plaintiffs opposed any such qualification. I do not believe that a qualification referable to such a standard would be appropriate in this case. 11 The problem arising from the conventional formulation of the injunction as ordered on 11 November 1986, namely, that it was not established whether the situation then existing constituted a nuisance, no longer persists in view of my finding and proposed declaration that it did and that the nuisance has continued to this time. 12 It is, then, a matter for the defendant to devise and carry out whatever works are necessary to abate the nuisance. Whilst I have not made any finding as to what works it is necessary for the defendant to carry out in order to prevent the nuisance from continuing, the parties have my finding that carrying out the balance of the proposed 1999 works would not do so: paragraph [159]. I now add the following observation. On the evidence before me, the extension of the in-road drainage system proposed by Mr Lucas (see paragraph 112) would be a practical solution. Upgrading of the SDL and / or of its extension may be an alternative and cheaper solution (see paragraph [216]).

13 In these circumstances, the proposed injunction should be in the conventional form.

Suspension of the injunction 14 In my judgment of 12 December 2001, I proposed that there be a suspension of the injunction for a period of six months. Speaking generally, such an order is usual, in a case such as the present, in order to give the defendant the opportunity of devising and implementing abatement work. It was submitted on behalf of the defendant that six months was insufficient. 15 In view of the proposed stay pending appeal, the question is somewhat academic. However, I would not, in any event, allow longer than six months. It is always available to a defendant, in such circumstances, to make an application to extend the time for compliance, on evidence as to precisely what needs to be done and the timetable for doing it. 16 The plaintiffs are to have judgment for the three items referred to in paragraph [233] (4)-(6). A calculation of interest has been agreed, per letter from plaintiffs' solicitors dated 20 December 2001, now marked 13 for identification and placed with the papers. 17 A single money judgment will be entered in the sum of $150,265.16 made up as follows: Proposed easement $8,000 - interest $15,079.82

Special damages $12,887.30 - interest $13,376.29

General damages $50,000 - interest $50,921.75

Costs 18 The plaintiffs' sought an order for costs of the proceedings on a solicitor and client basis. The defendant proposed an order that the defendant pay the plaintiffs' costs but limited to 65 to 70 per cent of such costs and on a party and party basis only. 19 I decline to order costs on a solicitor and client basis. On behalf of the plaintiffs, it was submitted that the proceedings were reactivated by reason of non-compliance by the defendant with the injunction ordered by consent on 11 November 1986. In view of the findings I have made, that is factually correct but the defendant had a bona fide argument that there has been no actionable nuisance and, accordingly, for the defendant's contention that the injunction did not require it to undertake any remedial measures. On behalf of the plaintiff, it was further argued that the defendant had been under an obligation to bring the matter back to the court pursuant to paragraph 17 of the consent orders of November 1986. The plaintiffs' argument in that regard proceeded, however, on a construction of the orders with which I do not agree. The order for costs in favour of the plaintiffs should, accordingly, be on a party and party basis only. 20 In support of the argument that the defendant should pay only a proportion of the plaintiffs' costs, counsel for the defendant specified respects in which it was said that the way in which the plaintiffs conducted the proceedings resulted in unnecessary costs being incurred. First, reference was made to the course of the proceedings from the reactivation by filing a notice of motion on 5 November 1998 to the commencement of the hearing before me on 19 June 2001. In that regard, I was referred to the print out from the court's computerised record of the proceeding (Exhibit 23). Orders or directions were made on more than one occasion. In some instances costs were reserved. It was submitted by counsel for the defendant that the record showed much wasted and costly action by the plaintiffs in bringing the matter to trial. I find it impossible to make that determination, one way or the other, from an examination of a computer print out. The defendant has, however, made good the argument that it has incurred costs thrown away by reason of the filing of the further amended summons and points of claim dated 20 June 2001, by reason of the substitution of an affidavit sworn by Mr Bonnici on 20 June 2001 for earlier affidavits which were not read, by reason of the adjournment of the hearing on 21 June 2001 to 26 June 2001 (occasioned by that amendment, by the substitution of the later affidavit by Mr Bonnici and by a late affidavit by Mr Lucas), and by reason of postponement to 6 July 2001 of a view, for which there was time on 5 July 2001. 21 I propose to make an order that the defendant pay the plaintiffs' costs of the proceedings commenced by notice of motion on 5 November 1998, including the hearing before me, subject to an order that the plaintiffs pay the defendant's costs thrown away in consequence of the matters which I have specified above. I will exempt from the order that the defendants pay the plaintiffs' costs of interlocutory proceedings prior to commencement of the hearing before me in relation to which costs were reserved or no order was made as to costs. Pursuant to the liberty to apply which I will grant in general terms, either side may apply to a master of the court, as they may be advised, for an order for costs in those respects.

Stay of Proceedings 22 The defendant has, at this stage, filed a holding appeal and, the court is informed, will prosecute an appeal. The defendant applies for a stay of proceedings. 23 Pursuant to Pt 51 r 15, I have power to make such an order and, according to the practice, as the trial judge, I should entertain the application rather than leave it to the Court of Appeal. The rule provides that any such order by me is subject to any direction of the Court of Appeal. 24 Counsel for the plaintiffs does not oppose a stay of the proposed injunction in principle, but submits that, in this instance, the application should be made to the Court of Appeal, thereby avoiding the need for the plaintiffs to make a separate application to the Court of Appeal for expedition. It does not seem to me that this argument justifies departure from the usual practice.

25 Of the orders which I propose to make, the only order warranting a stay is the proposed injunction. There should be a stay of proceedings in relation to that order, subject to any direction of the Court of Appeal, on the condition that the appeal is prosecuted by the defendant with due diligence.

(1) A declaration that, as at the commencement of these proceedings on 28 August 1984 and since, the defendant has been guilty of nuisance in causing or allowing stormwater from St Johns Avenue, Gordon, to flow, directly or indirectly, onto the plaintiffs' land, No.48 St Johns Avenue, Gordon.

(2) That the defendant, its servants and agents be restrained from causing or allowing stormwater to flow, whether directly or indirectly, from St Johns Avenue, Gordon, and from the footpath adjacent thereto onto the plaintiffs' land, No.48 St Johns Avenue, Gordon, so as to occasion a nuisance.

(3) That the forgoing injunction be suspended for 6 months from today's date.

(4) Judgment for the plaintiffs in the sum of $150,265.16.

(5) That the defendant pay the plaintiffs' costs of the proceedings commenced by notice of motion on 28 August 1984, including the hearing which commenced on 19 June 2001, on a party-and-party basis, but not including the costs of interlocutory proceedings in relation to which costs were reserved or no order was made as to costs.

(6) That the plaintiffs pay the defendant's costs thrown away, on a party-and-party basis, by reason of - (a) the filing of the further amended summons and points of claim dated 20 June 2001, (b) the substitution of an affidavit sworn by Mr Bonnici on 20 June 2001 for earlier affidavits which were not read, (c) the adjournment of the hearing on 21 June 2001 to 26 June 2001, and (d) the postponement of a view from 5 July 2001 to 6 July 2001.

(7) That, subject to any direction of the Court of Appeal, the proceedings are stayed in relation to the order 2 above, pending determination of the defendant's appeal.

Last Modified: 12/24/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Judgment (23 paragraphs)

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