AGL HP1 Pty Ltd v Alanvale Pty Ltd - [2012] VSC 192

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. SCI 2055 of 2012

AGL HP1 PTY LTD & ORS	Plaintiffs
V
ALANVALE PTY LTD & ORS	Defendants

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2012
DATE OF JUDGMENT:	9 May 2012
CASE MAY BE CITED AS:	AGL HP1 Pty Ltd v Alanvale Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VSC 192

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REAL PROPERTY – Easement in gross under Electricity Industry (Residual Provisions) Act 1993 (Vic) – Certainty of intended purpose – Application of Land Compensation and Acquisition Act 1986 (Vic).

INJUNCTIVE RELIEF – Application by holder of easement to restrain defendants from denying access to land – Serious question to be tried – Balance of convenience – Relevance of absence of an undertaking as to damages by defendants.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr CM Scerri, one of Her Majesty’s Counsel, with Ms KJD Anderson	Norton Rose Australia
For the Defendants	Mr MK Moshinsky of Senior Counsel with Dr A Hanak and Mr D Morgan	Earl & Associates

HIS HONOUR:

The plaintiffs are AGL HP1 Pty Ltd, AGL HP2 Pty Ltd and AGL HP3 Pty Ltd, which I will hereafter describe collectively as AGL. They are wholly owned subsidiaries of AGL Energy Ltd. On 1 December 2010, the first defendant, Alanvale Pty Ltd, granted an easement over its land to AGL, authorising entry on to its land for the purpose of erecting and laying power lines, poles and associated infrastructure required to transmit electricity from a wind farm at Macarthur to a substation at Tarrone. The transmission lines were to cross seven properties. All property owners had granted easements to AGL. Alanvale, and two other landowners now refuse entry to AGL at a time when work is well advanced on the four other properties. The other landowners in dispute with AGL are the second defendant, Brendon Leonard Blohm, and the third and fourth defendants, Andrew Kitchener North and Lynne Frances North. The Norths executed a grant in favour of AGL in about June 2011 and Mr Blohm at around the same time.

AGL commenced this proceeding by writ on 11 April 2012, and applied by summons of the same date for urgent interim relief to restrain the defendants from preventing access to their properties pursuant to AGL’s asserted rights under each grant. Interim injunctions were granted by consent on 14 April 2012 and extended on 23 and 27 April so as to permit works to commence.

The proceeding has been referred to the Commercial Court and a trial is to commence on 12 June 2012, on an estimate of four days. In the meantime, AGL has sought a further extension of the injunctions until the commencement of the trial or further order. Its application is opposed by Alanvale. Mr Blohm also opposes the application unless undertakings in an acceptable form are given by AGL, including an undertaking to reinstate the land should a permanent injunction not be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] VSC 192
Decision Date: 9 May 2012

CaseChat Overview and Summary

The case of AGL HP1 Pty Ltd versus Alanvale Pty Ltd involved a dispute over the existence and scope of an easement in gross under the Electricity Industry (Residual Provisions) Act 1993 (Vic). AGL HP1 Pty Ltd, the holder of the easement, sought an injunction to prevent Alanvale Pty Ltd from denying access to their land. The dispute centred on the certainty of the intended purpose of the easement and whether it complied with the statutory requirements of the Act. The case was heard in the Supreme Court of Victoria, where the court had to determine whether the easement was valid and enforceable.

The court was required to address two primary legal issues. Firstly, whether the easement in gross was sufficiently certain in its intended purpose, as required by the Act. Secondly, whether the applicant had demonstrated a serious question to be tried and whether the balance of convenience favoured the grant of an injunction. The defendants argued that the easement lacked certainty and that the applicant had not provided an undertaking as to damages, which could be relevant in the balance of convenience assessment.

The court held that the easement was sufficiently certain in its intended purpose, as it was intended to allow for the maintenance and operation of electrical infrastructure. The court also found that a serious question to be tried was made out, and the balance of convenience favoured the grant of an injunction. The absence of an undertaking as to damages by the defendants did not preclude the court from granting an injunction, as the applicant had demonstrated that the easement was necessary for the operation of the electrical infrastructure and that the defendants' actions were likely to cause significant harm to the applicant if access was denied.

The court granted an interlocutory injunction, restraining Alanvale Pty Ltd from denying AGL HP1 Pty Ltd access to their land for the purposes of maintaining and operating the electrical infrastructure. The court further directed that the matter proceed to a final hearing to determine the extent of the easement and any other relevant issues. This outcome ensured that the applicant could continue to maintain and operate the electrical infrastructure, while the defendants had the opportunity to present their case at the final hearing.

Orders