Federal Airports Corporation v Makucha Developments P/L

[1993] FCA 603

G03 Ct3

JUDGMENT No. ........ ........ .. I ...,........

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No 184 of 1993
)
GENERAL DIVISION	1

BETWEEN	F E D E R A L	A I R P O R T S	L
CORPORATION
Apphcant
I
AND	MAKUCHA	DEVELOPMENTS	P -
PTY LTD

F~rst Respondent

;;

VANESHA PTY LIMITED

I.

Second	Respondent	I
' .

PAULMAKUCHA

Third Respondent

BETWEEN:	MAKUCHA	DEVELOPMENTS
PTY LTD

F~rst Applicant

PAUL MAKUCHA

Second Applicant

AND.	F E D E R A L	A I R P O R T S
CORPORATION
Respondents

Dav~es J.

REASONS FOR DECISION

EX TEMPORE

This 1s an application seeking an order that the first and third respondents

be restrained from entering upon or using Lot 1 in Deposited Plan 787029 to obtain

access to and egress from Lot 20 in Deposited Plan 747023 otherwise than in accordance with the licence agreement between the parties, and wthout the consent of the applicant. In my view, the facts do not presently show that there is any apprehension of a trespass. Whilst there is evidence that there was a trespass upon the Federal Airport Corporation's ("FAC") land in May, on the evidence that is before me, such trespass ceased when the Makucha Interests were instructed so to do.

I am of the op~nion that I should not add an injunction as sought to the

order for relief given. There has been an order for relief against forfelture in respect of the licence agreement and the Makucha interests are aware of the limitations of that agreement, so that should they commlt some breach of it in the future, FAC will

be entitled to take any action to which it is entitled by reason of that breach.	It
seems to me to be qu~te	unnecessary and undesirable to trammel the relationships

between the parties further by adding an order for an injunction.

Finally, I think it would be most improper for this Court to grant such an

injunction in the circumstance that it may be seen as a means by which FAC can demand very substantial sums from the Makucha interests for the purpose of crossing

FAC's land.

This is a case in which there is neither a present trespass, nor any presently

apprehended trespass and consequently no cause for the Court to grant an injunction. Further, I would not lend the Court's authority to any course of action by which FAC

may demand a very large sum for the purpose of crossing its land, particularly as there is no clear evidence in these proceedings that it is not in the public interest that this land should be developed and made available for the general use of the community. I would not wish to make an order which might give any indication to the contrary.

For these reasons, the application for an injunction as sought by the

applicants will be refused.

I certify that this and the 2 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Mr Justlce Davies.