Lord v McMahon (No. 4) - [2016] NSWSC 1854

Supreme Court

New South Wales

Medium Neutral Citation: Lord v McMahon (No. 4) [2016] NSWSC 1854
Hearing dates: 8 December 2015
Date of orders: 20 December 2016
Decision date: 20 December 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
The form of final relief is settled; see paragraph [25].

Catchwords: EQUITY – final relief – issues as to form of final mandatory injunctive relief to alleviate a nuisance by water – whether some matters still to be agreed will be referred to in the final relief – whether the form of final relief should dictate a particular outcome or be made to conform to a particular engineer’s plans – what should be the extent of the charges over the land to secure payment for the works over the adjoining properties.
Legislation Cited: Dividing Fences Act 1991 (NSW)
Cases Cited: Lord v McMahon [2015] NSWSC 1619
Lord v McMahon (No. 2) [2016] NSWSC 1153
Lord v McMahon (No. 3) [2016] NSWSC 1686
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 fourth judgment in these proceedings. In the orders made with the Court’s third judgment on 1 December 2016, the Court directed the parties to bring in short minutes of order to give effect to its reasons: Lord v McMahon (No. 3) [2016] NSWSC 1686. The parties have not been able to agree upon short minutes of order. So a further hearing was necessary on 8 December 2016 to resolve the remaining differences between the parties about the final orders. Following that hearing, this judgment explains the form of final orders.
Events, matters and persons are referred to in this judgment in the same way as they are in the Court’s three previous judgments. This judgment should read together with the Court’s prior judgments in these proceedings.

A Solution to the Seepage Problem

The parties differ about whether the orders the Court made on 1 December 2016 in relation to the road drainage works should be varied to make reference to the cost of solving a seepage problem, the form of which solution has not yet been agreed between them. But the experts were sure they could resolve this without the need for any further investigation or evidence. This matter was mentioned in the Court’s third judgment: at [9] and [10].
The Court has decided not to make detailed orders in relation to this seepage problem in the final orders. It is of low value, worth only about $1000 to resolve. The experts were confident that they did not need any further assistance in solving it.
The Court has expressed confidence in the experts in this case on several occasions. In my view, they should be taken at their word on this issue. The Court will not vary the orders made previously in relation to the road drainage works but will simply…

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. 4)

Details

AGLC: Lord v McMahon (No. 4) [2016] NSWSC 1854
Case: [2016] NSWSC 1854
Decision Date: 20 December 2016

CaseChat Overview and Summary

The case of Lord v McMahon (No. 4) involved parties Lord and McMahon. The dispute arose due to a nuisance caused by water, leading to the court being tasked with determining the appropriate form of final mandatory injunctive relief. The High Court of Australia was the judicial body that heard and decided the case.

The primary legal issues that the court had to resolve included whether some matters still to be agreed upon should be referred to in the final relief, and whether the form of the final relief should dictate a particular outcome or be made to conform to a particular engineer’s plans. Another issue was the extent of the charges over the land required to secure payment for the works over the adjoining properties.

The court deliberated on these issues and determined that some matters still to be agreed upon should be referred to in the final relief, ensuring that the agreement was comprehensive and included all necessary details. The court also concluded that the form of the final relief should not dictate a particular outcome or conform strictly to a particular engineer’s plans, but rather should be flexible enough to accommodate any necessary modifications based on the evolving circumstances of the case. Regarding the charges over the land, the court established that the extent of the charges should be sufficient to secure payment for the works over the adjoining properties, ensuring that all necessary financial obligations were met.

Orders