Love v Thwaites (No 3)

[2003] VSC 60

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON DIVISION

PRACTICE COURT

No. 4505 of 2003

THOMAS JAMES LOVE	Plaintiff
v
THE HONOURABLE JOHNSTON WILLIAM THWAITES and Ors	Defendants

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JUDGE:	NETTLE, J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2003
DATE OF JUDGMENT:	6 March 2003
CASE MAY BE CITED AS:	Love v Thwaites (No.3)
MEDIUM NEUTRAL CITATION:	[2003] VSC 60

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Acquisition of land – equity injunction – undertaking as to damages – security for undertaking – balance of convenience favoured grant of injunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr C L Pannam QC with Mr  H R Carmichael	James T Stevens
For the first and second Defendants	Mr N J Tweedie	Victorian Government Solicitor
For the third Defendant	Mr S R Morris QC	Phillips Fox

HIS HONOUR: 

1. This matter was last before me last Friday afternoon.  I said then that if it were later demonstrated by more precise drafting and cogent evidence that certainty and the avoidance of damage were possible, I might be prepared to make the sort of order which was sought. 

1. It is now apparent from an affidavit sworn by the plaintiff on 5 March 2003 that following that indication a great deal of work has been undertaken in a very short period of time to define with complete precision the area of the Clonnard complex which it is sought to make the subject of an injunction restraining destruction or damage by Roads Corporation.

1. There has also been filed in support of this further application for injunction an affidavit of 6 March 2003 sworn by Thomas Richard Brock who, according to his curriculum vitae, is a highly qualified civil engineer with a wealth of experience in the construction of road projects like the Hume Freeway extension near to Clonnard.  Based upon his knowledge of the design and construct contract process infrastructure, Mr Brock has deposed that it would be possible to retain significant parts of the Clonnard Homestead complex (which parts he identifies as being those within a plan which is exhibited to Mr Love's affidavit as Exhibit 13) with no impact on the bypass works, and without compromising the required construction activities.  The affidavit also sets out in considerable detail the sorts of considerations and difficulties which might arise in the course of Abigroup developing and completing its design for the construction of the project, and records in tabular form three possible scenarios and what is likely to occur if one or other of those scenarios comes to pass.

1. In short, Mr Brock’s affidavit projects the impression that until and unless Abigroup formulates a design which makes it necessary to transgress onto the part of Clonnard which is identified in the plan in Exhibit 13, there is no immediate risk of damage to Roads Corporation if enjoined from destroying or damaging Clonnard.

1. This application has come on for hearing very quickly with little opportunity for notice to be given to Roads Corporation, and even less opportunity for them and their counsel to prepare to oppose the application.  No one is to be criticised for that.  Roads Corporation has a responsibility to press on with the development of the project as it sees it and Mr Love has had to move with speed in order to have any chance of succeeding in this further application.  But the consequence is that Roads Corporation is not as well prepared to meet Mr Brock’s affidavit as it might like to be.

1. George Mavroyeni has, however, sworn a further affidavit of 6 March 2003 in opposition to the application and in addition to what is there deposed I have been told that there are a number of other problems which would concern Roads Corporation if an injunction were granted. 

1. The first of those problems is said to be that while Mr Brock has assumed that the horizontal and vertical alignment of the road as designed will follow the concept plan prepared by Roads Corporation, it is distinctly possible that Abigroup will come up with another design solution.

1. The second problem, it is said, is that although Mr Brock has attempted to deal with a proposed bike path which comes within the contract works, by suggesting that it can be accommodated without impinging upon the area sought to be protected, the concept plan shows that the bike path does indeed impinge significantly upon the protected area and therefore there is a distinct possibility that the path as designed will so impinge. 

1. The third problem is that the concept plan of the road design calls for the construction of “swale” drains (which are “high class” drainage channels in which native trees are planted in order to filter storm water), and it is distinctly possible that as the drains are finally designed they will directly impinge upon the area sought to be protected or have the effect, amongst other things, of pushing out the batters so as to impinge upon the protected area.

1. Fourthly, it is observed that whereas Mr Brock has deposed that he sees no reason for the very wide area of land between the proposed freeway and the eastern boundary of the right of way, it is possible that all of it or a substantial part of it will be required for the construction of permanent “high class” wetlands the subject of a contract requirement and also on a temporary basis for the construction of sedimentation basins used to deal with dust and other by-products during the course of construction. 

1. Fifthly, it is said that there is within the contract a requirement for the construction of an additional drain of significant proportions, and although nothing has been determined about where finally it should go, common sense and the fall of the land and flow of water in the area dictate that it be constructed somewhere immediately north to the Tributary 447 as shown on the plan which is Exhibit 13 and to the east of the proposed motorway.  In that event it would stand a fair chance of impinging to some extent on the area sought to be protected.

1. Sixthly, it is said that if injunction were to go there would be a real risk of Roads Corporation being caused some delay in reaching agreement with Abigroup on its proposals and in making available to Abigroup access to so much of the area sought to be protected as might be necessary for Abigroup to construct the project in accordance with its proposals and that, whilst it is one thing to say that such damages are quantifiable and could be satisfied out of any appropriately secured undertaking as to damages, there are the other more nebulous or amorphous possibilities of contractors treating  the injunction as an excuse to extend time or make demands in other directions.

1. I accept that each of these six considerations are matters for concern.  One way or another there is a real possibility that once the design is determined by Abigroup it may impinge directly upon the area sought to be protected, or at least necessitate impingement upon the area sought to be protected.  If that comes about, Roads Corporation could be caused some delay in reaching agreement with Abigroup on what it proposes and, to that extent, be put at risk of a claim for damages or compensation, and perhaps also claims of the more amorphous or nebulous kind to which Mr Morris referred.

1. But having said that, the evidence given by Mr Brock remains compelling to this extent: I now have before me the opinion of a highly qualified and experienced engineer, which is not in principle sought to be contradicted by the Roads Corporation, that, depending upon the design which is ultimately adopted, the project could be constructed without impingement or at least significant impingement upon the area sought to be protected.

1. Consequently, although there is a real possibility of Roads Corporation suffering some loss if Abigroup comes forth with a design which necessitates, or if Abigroup otherwise requires to impinge upon or damage Clonnard, in view of Mr Brock’s affidavit I do not think that loss is inevitable or if it occurs that there need be a great deal of loss.  I say that because if injunction goes and if thereafter the plaintiff does not agree to such reasonable demands as may be made by Abigroup through Roads Corporation, it will be open to the Roads Corporation to come back on short notice to the court and obtain a variation of the order to accommodate what has occurred.

1. I am inclined to think therefore that provided an undertaking as to damages is given and it is adequately secured, the balance of convenience now favours the grant of injunction in the terms which are sought.

1. Mr Morris submitted, and for the reasons I expressed last Friday I am inclined to agree, that the case which is made by the plaintiff for final relief is not strong.  But in my opinion it remains an arguable case.  Mr Morris also submitted, and again I am inclined to agree, that if I make the order which is sought I will thereby create the risk of further dispute and significant loss to his client.  But as I say, I think that such risk as is reasonably likely to occur can be guarded against by an appropriately secured undertaking as to damages.  In that event the balance of convenience so much tips in favour of the plaintiff as to mean that injunction should go. 

1. The plaintiff by his counsel has offered the usual undertaking as to damages and also an undertaking, in terms read out by Dr Pannam in the course of his submission in reply, that he will not seek an advance payment from VicRoads of the compensation or any part of it which is payable or may be payable in respect of the compulsory acquisition of so much of the plaintiff's property as constitutes the Clonnard area.  Evidence was given on the day of the ex parte application that the amount of that compensation is in the order of $2m.  That  figure has today been confirmed by Mr Morris on behalf of the Roads Corporation and Mr Morris has also told me, very frankly and helpfully, that provided Roads Corporation is able to get back to the court quickly and obtain such variation of the order as may prove to be needed, the security of $2m would likely hold the Roads Corporation safe.

1. In all the circumstances, I am persuaded that I should grant an injunction, conditioned on the two undertakings which have been proffered, substantially in the terms which are set out in the summons.

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