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Lord v McMahon (No. 3)

Lord v McMahon (No. 3)

Case [2016] NSWSC 1686 1 December 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Lord v McMahon (No. 3) [2016] NSWSC 1686
Hearing dates: 19 and 31 August 2016, 15 September 2016
Date of orders: 01 December 2016
Decision date: 01 December 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Parties agree on method of abatement of nuisance caused by the table drain. Orders made for final relief to abate the nuisance caused by a dam runoff based on defendant’s methodology to abate the nuisance.

Catchwords: NUISANCE – in the first judgment in the proceedings the defendant found responsible for a nuisance occasioned to the plaintiff’s land by dam constructed on the defendant’s land – disputes remain about the scope of the works required to abate the nuisance – whether the plaintiff’s or the defendant’s proposed solution to abate the nuisance should be adopted – other issues considered about the method of abatement of a nuisance caused by table drain.
Cases Cited: Kennard v Cory Brothers & Co Ltd [1922] 1 Ch 265
Lord v McMahon [2015] NSWSC 1619
Lord v McMahon (No. 2) [2016] NSWSC 1153
Thompson – Schwab v Costaki [1956] 1 WLR 335
Morris v Redlands Bricks Ltd (1970) AC 652
Tobacco Institute (Aust) Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1
Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths)
Category: Principal judgment
Parties: Plaintiff: Heather Lord
First Defendant: Stephen McMahon
Representation:
Counsel:
Plaintiff: C.A. Vindin
Defendant: G. Waugh
Solicitors:
Plaintiff: Glenn Henniker
Defendant: Grant John Hodgson

File Number(s): 2013/223473
Publication restriction: No

Judgment

This is the Court’s third judgment in these proceedings. The Court gave its first judgment on 24 November 2015 in which the plaintiff, Mrs Lord, had some success in an action which she brought in trespass and nuisance: Lord v McMahon [2015] NSWSC 1619 (“the first judgment”). Matters were reserved for further contest at a hearing as to the form of final relief and to other consequential matters.
The outcome of the proceedings was summarised at the conclusion of the first judgment (at [316] to [320]), as follows:

“316. The result of these proceedings on the Summons and the Cross Summons may be shortly summarised. The plaintiff, Mrs Lord, has failed to prove that the dam wall that the defendant placed on Lot 2 in 2000 is either a trespass or a continuing trespass upon her land. But she has been successful on one aspect of her nuisance claim associated with the dam wall that straddles the boundary of Lot 2 and Lot 3: she has established that overflows of water from the dam onto her property cast excessive water and some debris upon it, thereby eroding Lot 2 and reducing the quality of her pasture on Lot 2. But some of that debris on Lot 2 is also the product of her own unsuccessful attempts to abate any nuisance emanating from the dam on Lot 3. Given the complexities of this…

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.

Continue reading Lord v McMahon (No. 3)

Details

AGLC: Lord v McMahon (No. 3) [2016] NSWSC 1686
Case: [2016] NSWSC 1686
Decision Date: 01 December 2016

CaseChat Overview and Summary

The case of Lord v McMahon (No. 3) involved the plaintiff, Lord, and the defendant, McMahon, who were engaged in a dispute regarding a nuisance caused by a dam constructed on the defendant’s land that affected the plaintiff’s property. The matter was before the court to determine the scope of the works required to abate the nuisance and to decide which party’s proposed solution should be adopted. Additionally, the court had to consider other issues related to the method of abatement of a nuisance caused by a table drain.

The primary legal issue before the court was to ascertain the appropriate measures to be taken to alleviate the nuisance and to determine whether the plaintiff's or the defendant's proposed solution was the most suitable. The court had to weigh the practicalities and effectiveness of each proposed method, ensuring that the solution adopted would adequately address the nuisance without causing further harm or inconvenience. Moreover, the court needed to consider the implications of the table drain and its impact on the plaintiff's land, ensuring that the method of abatement was both lawful and equitable.

The court carefully examined the evidence and submissions from both parties, taking into account the technical details of the proposed solutions and the broader implications for the surrounding environment and property. After thorough deliberation, the court concluded that the defendant's proposed solution was more appropriate to abate the nuisance effectively. The court found that this method was better suited to address the issues caused by the dam and the table drain, ensuring that the nuisance would be resolved in a manner that was both practical and fair to both parties. The court’s decision provided clarity on the required works and outlined the specific steps that the defendant needed to undertake to abate the nuisance.

In light of the court’s findings, the final orders mandated that the defendant undertake the specified abatement works within a set timeframe. The court also directed both parties to cooperate in the implementation of the solution and to monitor the effectiveness of the abatement measures. The court’s decision aimed to provide a definitive resolution to the ongoing dispute, ensuring that the nuisance was adequately addressed and that the rights and interests of both parties were protected.

Orders