Sydney Water Corporation v Erik Maranik

File Number(s): 2025/379308

Publication restriction: Nil

ex tempore JUDGMENT

1. Costs of a notice of motion dated 10 October 2025 filed by the Sydney Water Corporation (Sydney Water) are in issue.

2. The summons commencing proceedings was filed on 2 October 2025 by Sydney Water the Applicant. Sydney Water is concerned about the impact of development work proposed to be carried out in pursuit of a development consent granted in 2021 on the sewerage pipe which runs through the Respondents’ land.

3. On Friday 10 October 2025 Sydney Water gave notice to the Court registry that it intended to file a notice of motion seeking interlocutory relief and pressed for its consideration that day. The motion was heard ex parte on Friday 10 October 2025 by the duty judge at 2:00pm. In Sydney Water Corporation v Maranik [2025] NSWLEC 114 orders were made and the matter stood over for further determination by me as duty judge today. One order made restrained the Respondents from carrying out building work on their land in Seaforth. The orders made provided for the Respondents to prepare evidence and submissions on which they wished to rely at the hearing set down for today. Costs were reserved.

4. The parties have settled the question of interlocutory relief through the provision today by Sydney Water of the usual undertaking as to damages. This offer was made for the first time at the outset of the hearing of the notice of motion listed before me. It has not therefore been necessary to consider whether the interlocutory orders made last Friday ought to continue.

5. The Respondents seek their costs of the notice of motion dated 10 October 2025 as they consider that Sydney Water has behaved unreasonably in the Re Minister for Immigration and Ethnic Affairs and Another; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 (Lai Qin) sense given the history of correspondence between the parties and the filing of the urgent notice of motion heard last Friday. As recorded at pars 22‑24 of the earlier judgment Sydney Water did not offer an undertaking as to damages and one was not required in the circumstances of the limited interim relief then sought.

6. There have been dealings between the parties for years. For current purposes I was referred to correspondence between the parties’ solicitors commencing from 9 September 2025 when the Respondents’ solicitor advised that they terminated the deed with Sydney Water and intended to recommence building work at the property in October 2025. Sydney Water’s solicitor responded that the deed was not terminated and that if the Respondents did not agree to withdraw their notice of intention to commence work in October Sydney Water would without further notice apply for interlocutory relief. Reference was also made to several letters between the parties’ solicitors dated 10 September, 26 September and 29 September 2025. On 30 September 2025 Sydney Water’s solicitors wrote to the Respondents solicitors asking if they would accept service and whether the Respondents would undertake not to commence work until 9 October 2025.

7. The summons was filed and served on the Respondents’ solicitor on 2 October 2025. On 7 October 2025 the Respondents’ solicitors wrote and proposed orders which if accepted would negate the need for interlocutory relief. The Respondents agreed not to do work if Sydney Water gave the usual undertaking as to damages. Draft short minutes of order were provided with the letter. Sydney Water’s solicitors responded that Sydney Water was not required to give an undertaking as to damages for reasons stated in the letter and proposed alternative short minutes of order. The Respondents’ solicitor wrote at 9:24 am on 10 October 2025 to Sydney Water’s solicitors stating that Sydney Water’s position that it was not required to give an undertaking as to damages was not accepted and was wrong in law. The orders proposed in the 7 October 2025 letter were suggested as the appropriate course.

8. As already noted above, during the morning of 10 October 2025 Sydney Water’s solicitors moved to have the notice of motion seeking urgent interlocutory relief heard that day by the duty judge which occurred at 2:00pm. The Respondents’ solicitor was copied into the Sydney Water’s solicitors’ communication to the Court seeking to have the matter listed. The Respondents did not appear at 2:00pm.

9. The Respondents seek their costs of Sydney Water’s notice of motion as in agreeing to provide the usual undertaking as to damages today Sydney Water has capitulated. Had the orders proposed by the Respondents’ solicitor on 7 October 2025 been accepted, which are in essentially the terms now agreed, the need for the notice of motion which has caused the Respondents to have to prepare evidence and submissions urgently and at considerable cost could have been avoided. While it has not been necessary to resolve the question of whether interlocutory relief is warranted so that there is no result on that issue, the conduct is unreasonable in the Lai Qin sense identified by McHugh J at 629. The Respondents have incurred considerable legal costs which they should not have had to.

10. Sydney Water opposes the costs order sought and asks that costs be reserved. It submitted the correspondence does not show unreasonable behaviour. That the Respondents have incurred costs is because they chose not to appear at the ex parte hearing on Friday 10 October 2025 when they could have. They could have appeared and sought different orders or could have had the matter relisted to seek to vary the orders made on 10 October 2025. Reasonable notice of the intention to seek interlocutory orders was given in light of the Respondents’ intention to commence works again on the land. The ultimate issue of whether interlocutory relief ought to be granted has not been determined because of the parties’ agreement today. The provision of the undertaking was not a capitulation. The evidence prepared is not lost as it will be relevant to the substantive proceedings.

Finding

11. I agree with the Respondents that they should not have to bear the costs of Sydney Water not accepting what was offered by their solicitor on 7 October 2025 given that is what has been agreed unexpectedly today. Had that offer been accepted then there would have been no need for the urgent and extensive work carried out by the Respondents in preparation for today’s hearing. I was referred to three affidavits prepared by the Respondents which include exhibits which had to be prepared quickly. I accept the submission of the Respondents’ counsel that while these are extensive these will have to be reformulated or not relied on for the substantive hearing given that expert evidence will be necessary which will need to be prepared in conformity with the U**niform C**ivil P**rocedure R**ules 2005 (NSW) for the preparation of expert evidence. Costs have inevitably been wasted as a result of the unexpected change of position of Sydney Water in giving the usual undertaking as to damages. That the initial hearing of the notice of motion was ex parte is immaterial given the haste with which it was put on meaning with limited notice to the Respondents. The notice of motion was not filed to allow the usual 3 days’ notice nor was an order for short service of the notice of motion sought.

12. In light of all the circumstances I consider this behaviour was unreasonable in the Lai Qin sense so that an order for costs in the Respondents’ favour ought to be made.

The Court notes:

13. Upon the Applicant by its counsel giving the usual undertaking as to damages but in doing so without conceding that it will be just for this Court to order payment of compensation should the court decline to make the final orders sought by the Applicant in these proceeding, NOTE the undertaking of the Respondents not to, before the final determination of these proceedings, carry out any development on the land described as Lot 21 of DP 871376 without the consent of the Applicant or leave of the Court.

Orders

14. The Court orders:

15. the Applicant’s notice of motion filed 10 October 2025 is dismissed.

16. the Applicant to pay the Respondents’ costs of the Applicant’s notice of motion filed 10 October 2025.

17. that the name of the First Respondent be amended to Erik Maranik.

18. that the directions hearing listed for 31 October 2025 is vacated.

Points of Claim and Points of Defence

5. the Applicant file and serve Points of Claim by 29 October 2025.
6. the Respondents file and serve Points of Defence by 12 November 2025.

Lay Evidence

7. the Applicant to file and serve its lay affidavits in chief by 7 November 2025.
8. the Respondents to file and serve its lay affidavits in chief by 28 November 2025.

Expert Evidence

9. pursuant to rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (UCPR) that the parties are granted leave to rely on expert evidence in the following discipline(s):

(a) civil/ structural engineer. (b) hydraulic engineer.

10. the Applicant to file and service any expert reports on or before 26 November 2025.
11. the Respondent to file and serve any expert reports on or before 31 January 2026.
12. the experts confer under UCPR r 31.24 and prepare a joint expert report. The joint expert report is to be filed and served by 12 February 2026.

Directions hearings

13. that proceedings be listed before the List Judge on 13 February 2025.
14. that the parties hand to the Court an agreed or competing estimates of the time required for the hearing broken down in the way referred to in paragraph 7 of Schedule A to the Class 4 Practice Note.

Final Hearing

15. that the proceedings be listed for hearing on 9/3/2026 to 13/03/2026 (5 days).

Liberty

16. that parties are granted liberty to apply on 3 days notice.

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