Bonnici v Ku-Ring-Gai Municipal Council

The plaintiff, Mr Bonnici, brought proceedings against Ku-Ring-Gai Municipal Council, the defendant, in the Land and Environment Court of New South Wales. The plaintiff alleged that the stormwater system constructed by the defendant had caused an incursion of water onto his property, resulting in a private nuisance. The plaintiff sought an injunction, special and general damages, and payment for the use of his land. The defendant argued that the court was functus officio by reason of earlier consent orders in the proceedings, that the plaintiff had unreasonably delayed in exercising his liberty to apply, and that any nuisance was not attributable to the defendant. The defendant also raised the defence of statutory immunity.

The court had to determine whether the court was functus officio by reason of the earlier consent orders, whether the plaintiff had unreasonably delayed in exercising his liberty to apply, whether there was a nuisance for which the defendant was responsible, whether the defence of statutory immunity was available to the defendant, and whether an injunction should be granted. The court also had to decide whether the plaintiff was entitled to special and general damages and payment for the use of his land.

The court found that the earlier consent orders did not render the court functus officio and that the plaintiff had not unreasonably delayed in exercising his liberty to apply. The court found that the defendant was responsible for the nuisance and that the defence of statutory immunity was not available to the defendant. The court granted the plaintiff an injunction to prevent further incursion of water onto his property. The court awarded the plaintiff special damages of $32,000 and general damages of $5,000. The court declined to award payment for the use of the plaintiff's land, finding that there was no basis for such a claim. The court ordered the defendant to pay the plaintiff's costs of the proceedings.