David Peter Buckley v David Francis Timbury & Anor

Judgment 1This is my second judgment in these proceedings. In the Court's principal judgment the Court found an actionable interference by one of the defendants, Mr Timbury, to the plaintiff's easement over the defendant's property: David Peter Buckley v David Francis Timbury & Anor [2013] NSWSC 1009. 2In the principal judgment (at [116] and [117]) the Court directed the parties to put on written submissions about issues of costs and to forward short minutes of order to the Court to give effect to the reasons in the principal judgment. The parties have been unable to agree upon short minutes of order and have advanced competing submission about issues of costs. This judgment resolves those two remaining issues. Events, matters and things are referred to in this judgment in the same way as they are in the Court's principal judgment. This judgment and the Court's principal judgment should be read together. The findings in the principal judgment are not repeated here.

Orders for removal of rocks 3In the principal judgment (at [110]) the Court found that Mr Buckley was entitled to relief restraining Mr Timbury from "placing rocks in or near the subsoil drains under the roadway on the easement or in a position where they are likely to wash into the drains during times of rain". The Court did not find any evidence that Mrs Timbury was involved in any such activity and the Court did not see any basis to grant an injunction against her on that ground: principal judgment at [110]. The defendant submits that a declaration rather than an injunction is the appropriate form of relief in respect of this issue of the blocked drains. The defendant advances a number of reasons in support of this conclusion. 4First, the defendant says that injunctive relief in relation to the placement of rocks was not sought in the plaintiff's summons. But this is not an answer to granting injunctive relief. The issues of placing rocks in drains was clearly in contest at the trial on both sides. It was equally clear that Mr Buckley was seeking such relief as the Court thought appropriate in respect of that issue. Moreover, in modern litigation, particularly where the parties have been in contest about an issue during trial and where it is unmistakable (as it is here) that some kind of remedy is being sought about that issue by the plaintiff, the absence of a precise or specific claim in the originating process is not an obstacle to relief. Uniform Civil Procedure Rules 2005 r 36.1 ("UCPR") specifically authorises the Court to make orders "as the nature of the case requires", whether or not a claim for relief extending to that judgement or order "is included in any originating process or notice of motion". This is not an obstacle to granting of an injunction: Mr and Mrs Timbury were well aware of this part of Mr Buckley's claim at trial and that some relief was being sought in respect of it. 5Secondly, Mr and Mrs Timbury say that granting an injunction is more likely to exacerbate than to quell the existing controversy. Drawing upon observations of McClelland J in Zenere v Leate (1980) 1 BPR 9300 at 93089 ("Zenere") and observations of the Victorian Supreme Court in Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507at [121] - [125], Mr and Mrs Timbury say that the appropriate relief in the circumstances is a declaration that the plaintiff be permitted to remove from the drains under the right of way any rocks that are reasonable likely to cause flooding of the right of way during times of rain. In Zenere McClelland J did emphasise (at 9308) where parties have been neighbours for many years it is undesirable to have "their future relationship carried on under the shadow of permanent injunctions...with the ever present threat of proceedings for contempt of Court in respect of the slightest deviation". His Honour was particularly loath to make such orders in circumstances where the injunctions could only be expressed in "very general terms". 6But I am not persuaded that the principles stated in Zenere are applicable in this case. An injunction will only be granted in one area which is only a very small part of the parties' relationship and which has been the subject of deliberate conduct on Mr Timbury's part in the past. This is not a case where accidental conduct could be misconstrued as a breach of the Court's orders. The injunction can be framed with sufficient precision to avoid problems. 7Thirdly, the Timburys criticise Mr Buckley's proposed form of injunction to give effect to the principal judgment (at [10]), as "overly broad and general". Specifically it is said to restrain the placement of any rock in a position where it is likely to wash into the drains, without specifying any relationship with flooding, which is the basis for the relief. Mr Timbury does not wish to be exposed to the prospect of contempt proceedings if he places a rock somewhere, which then happens to be washed into a drain during times of ordinary rain. 8But Mr Timbury's argument on the generality of the orders sought can be taken into account to a limited extent. The orders proposed by Mr Buckley can be tightened to reflect the fact that Mr Timbury should not place rocks in a position where they are likely to wash into the drains during flooding or heavy rain. I see no reason to restrain Mr Timbury from doing this. He is quite at liberty to install fence-mesh down into the depressions under his fence or to secure any rocks that he places in those depressions to prevent them being washed away in floods using some kind of gabion structure or by planting grass, or other vegetation that better secures any rocks that he needs to place there. 9Fourthly, Mr Timbury says that an injunction should not be granted in circumstances where Mr Buckley has not yet paid the defendants the sum in respect of the encroaching brick structure conveyed under the consent orders of August 2012 (CB10). 10I agree with the Timburys on this matter. The commencement of the injunction should be conditional upon Mr Buckley paying this $15,000 for the conveyance of the land under the pillars from the Timburys to Mr Buckley. The payment will no doubt only occur in the context of conveyance of the land. Making the injunction spring up only after this conveyancing transaction is completed will not only serve the principle of "he who seeks equity must do equity" but will have another advantage. It will reduce a potential sense of grievance on Mr Timbury's part that he has been subjected to an injunction in circumstance where Mr Buckley has not yet performed the August 2012 consent orders. The Court has drafted orders to reflect the conditional nature of the injunction in this respect. If there is any difficulty with the form of these orders then the parties have liberty to apply to better effect their implementation.