Balance of convenience
39In addressing the balance of convenience, I record that Seven offered, through Mr McEwen, the usual undertaking as to damages in the event that an interlocutory order was granted. QIC accepted that Seven had the capacity to meet any claim for damages should the occasion arise to enforce the undertaking that had been given to the Court.
40Without intending disservice to the careful submissions made by Mr Gyles on behalf of QIC, the grounds for opposing the grant of any interlocutory order were essentially twofold. First, he submitted that damages were an adequate remedy should breach be established. Second, he submitted that the delay in bringing the proceedings was so great that it was fatal to Seven's application.
41The adequacy of damages is, as a matter of general principle, an important consideration when determining an entitlement to an interlocutory injunction (Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153). However, damages may not be an adequate remedy in all proceedings, such as those of the present kind in which civil enforcement is sought under s 123 of the EPA Act (Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [26]). The remedies available to Seven under s 124 do not include an award of damages. I also observe that the potential disruption to a major television network, should that occur, may well present difficulty in the calculation of damages likely to be suffered (Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570 at 575).
42In the context of available alternate remedies, Mr Gyles submitted that an abatement of rent by reason of the operating difficulties that might occur would be an appropriate remedy available to Seven. However, a difficulty arising from this submission is the fact that the lease under which a claim for abatement might arise is not a lease to which QIC is a party. The building work that is the source of Seven's proceedings is not work for which the sublessor to Seven is responsible. Problems may therefore arise in claiming that the sublessor is responsible for breach of its covenant for quiet enjoyment. The fact that such a difficulty exists militates against this submission as founding refusal of Seven's application.
43The issue of delay in bringing these proceedings has occasioned me considerable concern. Mr Gyles rightly points to the evidence of complaints by Seven to QIC and, indirectly to Built, arising from alterations and additions being carried out to the Building. These complaints date back to April 2012. Further, he submits that even if the trigger for the present application was an apprehension that the disruption to activities of Seven experienced on Saturday 18 August would be repeated over the weekend of 25 August, proceedings ought to have been commenced on Monday 20 August, not in the evening of Friday 24 August. Mr Gyles also pointed to the difficulty occasioned by delay in notifying the intention to seek the present order resulting in the absence of Built from the present hearing. He submitted that considerable difficulty may be occasioned to Built in notifying its subcontractors that work planned to commence less than 12 hours from the making of any order could not proceed.
44Finally, Mr Gyles stated that the contract with Built for the work being undertaken pursuant to the development consent was a 20 week contract, 17 weeks of which had already passed. Thus, it was submitted, it was too late to stop the work being completed.
45Although there is substance in these submissions, ultimately I was not persuaded that they weighed against the grant of an injunction restraining work on an interim basis for the weekend of 25 August.
46Clearly, the evidence did demonstrate complaint about the Building activities and their impact upon Seven extending over some months. Further, Seven had received two noise assessment reports from Mr Cooper that indicated a likely breach of condition (32) of the development consent. However, the evidence also shows that Seven had endeavoured to negotiate a resolution of its concerns in a commercially understandable manner.
47Moreover, the evidence left me with the impression that until the acute interference occasioned to Seven's commercial activities on 18 August, it was exercising a degree of tolerance and restraint in the expectation that intrusive building activities would be constrained. Having had the experience of 18 August, Seven's first response was an appeal to the statutory regulator, namely the Council, for assistance in controlling what Seven asserted to be work conducted in breach of the development consent.
48No such assistance was in the offering when, on Thursday 23 August, QIC, through Colliers, notified Seven of the works proposed for the ensuing weekends. Understandably, the description of those works as "NOISY WORKS", together with the equipment identified proposed to be used, caused Seven to apprehend that the carrying out of those works would have a consequence similar to that experienced on the previous weekend. Thereafter, the undertaking sought by Seven from QIC as to the manner in which those works would be performed was not provided in terms offering assurance that noise levels would be contained within the limits imposed by condition (32) of the development consent.
49While Seven could have moved with a little more urgency than it did during Friday 24 August, particularly in notifying Built that proceedings were to be commenced and the present application made, the delay in question is really to be measured in hours rather than days. The events of the week leading up to the present application being brought demonstrated that, regrettably, commercial negotiation had apparently been exhausted and protection of the status quo was necessary until the impasse reached between the parties could be fully debated. The status quo for present purposes, is the limitation upon work having the potential to breach condition (32) of the development consent.
50Recognising the potential prejudice to both QIC and Built, I concluded that a limited period of restraint was appropriate (cf International Finance Trust Co Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319 per Heydon J at [149]). The evidence of background noise and impact from machinery identified as likely to be used in works to be undertaken on 25 August was limited to the street frontages of the tenanted premises, generally at the corners of the Building between Martin Place, Phillip Street and Elizabeth Street. These were areas identified as areas 5 and 9 on a plan that accompanied the works schedule provided on 23 August. It was therefore appropriate that the restriction upon work able to be undertaken in accordance with the works schedule be limited to those areas.
51For these reasons, I made the following orders:
- Upon the applicant, by its counsel, giving the usual undertaking as to damages the respondents by themselves, their employees, agents, contractors and sub-contractors be restrained until 12.00 noon on Monday 27 August 2012 from carrying out development at or in proximity to the Building known as 52 Martin Place, Sydney, being that development comprising works proposed to be carried out between 9.00am and 2.00pm on 25 and 26 August 2012 and being the works described as "NOISY WORKS" in the Schedule of Works provided by Gillian McAllister to David Porter on Thursday 23 August 2012 a copy of which Schedule is attachment A to these orders but confined to such works as are to be carried out in areas 5 and 9 identified on the plan that is attachment B to these orders.
- Order that service of these orders upon the second respondent be effected by:
(a) telephone notification from the solicitor for the applicant to the solicitor acting for the second respondent said to be engaged in the firm of Gadens Solicitors, Sydney, such notification to be given by 9.30pm tonight.
(b) telephone notification from the solicitor for the applicant to John Amos, site manager for the second respondent on mobile telephone number 0401691330, that notification to be given by 10.30pm tonight.
(c) by emailing a copy of this order to John Amos at email address johnamos@built.com.au by 10.30pm tonight.
- Stand over the applicant's notice of motion to 10.00am on Monday 27 August 2012.
- Costs reserved.