Illawarra Golf Club Pty Ltd v Integral Energy Australia

[2009] NSWSC 1317

CITATION:	Illawarra Golf Club Pty Ltd v Integral Energy Australia [2009] NSWSC 1317
HEARING DATE(S):	27 November 2009
JUDGMENT DATE :	27 November 2009
JUDGMENT OF:	Harrison J
EX TEMPORE JUDGMENT DATE:	27 November 2009
DECISION:	Application for mandatory injunction refused. Costs reserved.
CATCHWORDS:	INJUNCTION – where power pole on plaintiff's golf club premises damaged by collision with truck - where defendant disconnected power supply to plaintiff's golf club for safety reasons following the damage - where plaintiff obliged to repair the pole – where defendant refuses to reconnect power until pole repaired - application for mandatory order for restoration of disconnected power - where dispute exists concerning current condition and safety of the damaged pole - where evidence at interlocutory stage inadequate to establish either the existence or the nature of the issue(s) to be tried – where balance of convenience in any event favours refusal of application
CATEGORY:	Procedural and other rulings
PARTIES:	Illawarra Golf Club Pty Ltd (Plaintiff) Integral Energy Australia (Defendant)
FILE NUMBER(S):	SC 15360 / 2009
SOLICITORS:	Plaintiff in person Middletons (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

27 November 2009

15360/2009 Illawarra Golf Club Pty Ltd v Integral Energy Australia

JUDGMENT – EX TEMPORE

1 HIS HONOUR: This is an application by Illawarra Golf Club for a mandatory injunction that the defendant, Integral Energy Australia (incorrectly described as Integral Energy Australia Limited) reconnects the power supply to the Illawarra Golf Club forthwith until further order. Although proceedings have been commenced by notice of motion, it will in due course be necessary for the plaintiff to file either a summons or preferably a statement of claim outlining its cause of action and claiming such further or additional relief as it may be advised.

2 Mr David Hawkins appears today on behalf of the plaintiff and gives personal undertakings that an appropriate initiating process will in due course be filed and that any fee, where applicable to the filing of that document, will be paid by him. The notice of motion is supported by Mr Hawkins' affidavit made today. Briefly the position is as follows. The plaintiff, for relevant purposes, is the proprietor of a golf club. Located upon the golf course are three significant buildings. Between these buildings and the Princes Highway there are 18 power poles on the land from which are suspended cables providing power to the golf club. One of those poles was damaged recently when a prime mover on the golf course property collided with it. The power lines were dislodged although not severed and were ultimately reinstated to the position that they previously occupied by an electrical contractor retained by the plaintiff.

3 There appears to be some considerable history concerning the status of this pole on the plaintiff's property. So much is evidenced by the terms of a letter dated 3 November 2009 from the defendant to the plaintiff. That document is sub-headed "Report of Inspection No 80653 for defective power pole 87 Princes Highway, Helensburgh." The letter is in the following relevant terms:

"Integral Energy has written previously requesting you to replace a power pole on your property. To date Integral Energy has not been advised that this work has been carried out.

If this work has been carried out please notify Integral Energy. In this regard it was necessary for your electrical contractor/accredited service provider to submit the applicable form … and this form should have been faxed to the Bowenfels office on [telephone number given].

Integral Energy is required by law to ensure that matters are attended to within a reasonable time. If this work has not already been completed you are now asked to arrange for the work to be carried out by 25 November 2009.

Although Integral Energy is reluctant to cause you any inconvenience, instructions have been given for the installation to be reinspected on 26 November 2009.

If at that time the defective pole has not been replaced, Integral Energy's representative may have no alternative but to disconnect the supply without further notice."

4 In the events that occurred the power supply to the golf club was disconnected. That occurred this morning at approximately 10 o'clock.

5 Mr Hawkins' affidavit deposes to a number of matters including that the golf club has substantial bookings for the whole of the coming weekend, which should net approximately $8,000. He further says that it is not possible to postpone or delay these bookings, as contact numbers are not available. The plaintiff will have to stand down all staff if the golf club is not able to trade. Mr Hawkins deposes that the existence of the power pole would not cause a danger to anyone employed or to any member of the public using the golf club. That statement was objected to on this application by the defendant upon the basis that Mr Hawkins has no qualifications to make it. Mr Hawkins goes on to say that since the notice was apparently first issued on 21 April 2008 concerning this pole, there has been no deterioration to it or any other power poles on the golf course.

6 Although the events of this morning mean that the reconnection of the power from the plaintiff's point of view is an urgent matter, the events that have ultimately resulted in the disconnection of the power this morning are of relatively long standing. The issue at hand appears to be a combination of a proper objective assessment of the integrity of the power pole in the first place and the extent of any danger associated with a failure to rectify this, if rectification be needed, in the second place. These issues have remained unresolved for some considerable time but significantly for present purposes from as recently as 3 November 2009 as indicated by the letter to which I have referred.

7 There seems to be an acceptance on the part of the plaintiff that it bears the responsibility to maintain and make good any defects in the pole in question. To that extent the plaintiff relies upon a report presumably from a licensed electrical contractor, Andrew Dove, whose letter dated 27 November 2009 is attached to Mr Hawkins' affidavit, and indicates the following:

"Car park power pole. I attended this property recently after some aerial cables had been brought down by a semi-trailer. All damage was sustained at the point of attachment, ie the workshop building. It appears the pole has not sustained any further damage.

Respectfully yours, Andrew Dove."

8 Doing the best I can, that would seem to suggest that the wires became disconnected from the workshop as a result of tension applied to them at the time when the prime mover collided with the pole so that the force upon the cables exceeded the ability of the apparatus attaching them to the workshop to retain them at that point. Mr Dove has prepared a report that presumably extends no further than his apparent expertise as an electrician to suggest that the electrical integrity of the wire is currently not under threat. As far as I can determine however, upon the basis of the material deposed to by Mr Hawkins, there remains a more fundamental concern about the fitness of the power pole generally. That may be either directly or only indirectly connected to this issue of whether or not the power supply is otherwise safe, as distinct from concern about the integrity of the pole in particular. As far as I can determine it seems to me that the current dispute derives from competing opinions about whether or not the pole itself now requires replacement or repair.

9 Annexed to Mr Hawkins' affidavit is a letter apparently sent by facsimile prepared by him and addressed to the defendant. It was dated 5 November 2009. Its terms reveal that the plaintiff denies that the power pole in question is defective and that it has had its own inspection undertaken. Mr Hawkins expressed the view in his letter that upon the basis of that inspection the owners are satisfied that the power pole is and will be fit for its purpose for at least 12 months and possibly more. Mr Hawkins somewhat ironically cites as evidence of the fitness of the power pole the fact that the large truck recently ran into it and, despite what he refers to as a substantial impact, the pole remained intact.

10 Mr Hawkins also said the following:

" The owners have sold the property and the property will be redeveloped in February 2010 and as such they are not inclined to incur any unwarranted expenses.

If you have a contrary view then please forward a copy of your written assessment as we intend to have our lawyers engaged if this matter escalates.

Any disruption to power will cause loss and damage to our business and as such we will hold Integral Energy accountable for such losses given what we are advised is an unwarranted request for removal of this single pole on our property."

11 The plaintiff does not contradict the role performed by the defendant in the provision and maintenance of an electrical supply to the plaintiff's property or deny the significance of its ultimate responsibility for the safety of the electricity it supplies. It goes without saying that the frailty or otherwise of power poles supporting power lines falls within the defendant's remit.

12 The evidence is at this stage unfortunately incomplete although both parties appear to be operating upon an assumption that in due course the defendant will furnish evidence if required, proffering a view, to suggest that the pole in question is unsafe and that it disconnected the power for that reason.

13 It seems that the plaintiff, for commercial reasons that are both obvious and reasonable, is disinclined to spend money to rectify a pole, which it says requires no work. The intended future commercial use of the premises suggests that expenditure to rectify it, if required, will either be unnecessary or wasted when the use of the property changes.

14 Mr Hawkins has offered an undertaking as to damages and informs me from the bar table that he understands the consequences of that undertaking. Mr Webster, who appears for the defendant, is concerned that no evidence is available concerning Mr Hawkins' capacity to meet an undertaking if called upon at some time to make it good. It seems to me that the appropriate resolution of this issue ultimately will require expert opinions about the status of the pole and reinstatement of it if it is found to be defective as soon as possible. The state of the evidence on one view does not permit me at this stage to identify whether or not there is an appropriate issue to be tried, or if there is, how to determine where the balance lies in the absence of competing scientific or expert evidence to assist me in doing so.

15 It seems to me, having regard to the relatively modest sums that may be lost by the plaintiff if the injunction is not granted, bearing in mind the obvious solvency of the defendant, that damages are an adequate remedy, particularly if the proceedings can be determined promptly. In my opinion it would not be appropriate at this stage to grant a mandatory injunction on an interlocutory basis of the sort claimed by the plaintiff. The balance of convenience does not favour such a course and damages appear to me to be an adequate remedy in any event.

16 Subject to anything that the parties wish to say, I consider that the matter should be relisted at 10.00am before the duty judge on Friday of next week. In the meantime I direct the plaintiff to file and serve such further evidence as it proposes to rely upon by 4.00pm on Tuesday 1 December 2009 and I direct the defendant to file and serve any evidence upon which it intends to rely by no later than 4.00pm on Thursday 3 December 2009. Costs of today should be reserved.

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