Muhibbah Engineering (M) BHD v Giuseppe Vartuli - [2009] NSWSC 265

CITATION: Muhibbah Engineering (M) BHD v Giuseppe Vartuli [2009] NSWSC 265

HEARING DATE(S): 9 March 2009

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 9 March 2009

DECISION: Plaintiff to pay defendant compensation of $72,116.25.

CATCHWORDS: EASEMENT - easement for drainage of water - quantum of compensation to be paid – land liable to flood affected in part – heads of compensation – whether allowance for “blot on title” appropriate

LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 88K(1), s 88K(4), Schedule 4A, Part 3

CATEGORY: Principal judgment

CASES CITED: 117 York Street Pty Limited v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504; (1998) 8 BPR 15,917
Goodwin v Yee Holdings Pty Limited (1997) 8 BPR 15,795
Khattar v Wiese [2005] NSWSC 1014; (2005) 12 BPR 23,235
King v Carr-Gregg [2002] NSWSC 379
Mitchell v Boutagy [2001] NSWSC 1045; (2001) 10 BPR 19,187
Swann v Spiropoulos [2006] NSWSC 860
Tregoyd Gardens Pty Limited v Jervis (1997) 8 BPR 15,845
Wengarin Pty Limited v Byron Shire Council [1999] NSWSC 485; (1999) 9 BPR 16,985

PARTIES: Muhibbah Engineering (M) BHD (plaintiff)
Giuseppe Vartuli (defendant)

FILE NUMBER(S): SC 5023/08

COUNSEL: Mr G Sirtes SC (plaintiff)
Mr D Allen (defendant)

SOLICITORS: Gray & Perkins (plaintiff)
V L Macri Lawyers (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 9 March 2009

5023/08 Muhibbah Engineering (M)BHD v Giuseppe Vartuli

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff Muhibbah Engineering (M) BHD is the registered proprietor of land at 28 Yarrunga Street, Prestons comprised in folio identifier 2/XXX915, which is occupied by Favelle Favco Cranes Pty Limited. The defendant Giuseppe Vartuli is the registered proprietor of land located to the northwest of Muhibbah's land and overlapping its rear boundary at lot 27 Yarrawa Street, Prestons, comprised in folio identifier 27/XX59. The area has relatively recently been rezoned as industrial, following previous rural and residential uses, and its proximity to the M7 motorway makes it attractive to industry. Located directly to the north of Muhibbah's land and to the east of Mr Vartuli's land is lot 101 Yarrawa Street, owned by Trust Company Ltd. Muhibbah's land is more elevated than Mr Vartuli's land and the Trust Company's land and surface water from Muhibbah's land drains over the two other lots.

2 In 2007 the Trust Company developed its land. It alleged that storm water discharge from pipes on Muhibbah's land interfered with the construction works, and otherwise with the Trust Company's land, and commenced proceedings in this Court against Muhibbah for injunctive relief. In order to comply with injunctions granted in those proceedings, Muhibbah has constructed the first stage of a storm water drainage system to convey surface water from its property to Cabramatta Creek, substantially in accordance with a Development Control Plan prepared by Liverpool Council in 2007, which provided for water to be drained through a property located to the immediate west of…

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.

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Details

Case: [2009] NSWSC 265
Decision Date: 9 March 2009

CaseChat Overview and Summary

The case of Muhibbah Engineering (M) BHD v Giuseppe Vartuli was heard in the Federal Court of Australia. The dispute centred on the imposition of an easement for drainage of water over a parcel of land owned by the defendant, Vartuli, for the benefit of the plaintiff, Muhibbah Engineering (M) BHD. The plaintiff sought compensation for the easement, arguing that it was necessary to ensure proper drainage and prevent flooding over the affected land. Vartuli contested the imposition of the easement and the quantum of compensation claimed by the plaintiff.

The primary legal issues before the court were the validity of the easement and the appropriate compensation to be paid to Vartuli for the imposition of the easement. The court had to determine whether the easement was necessary, reasonable, and in accordance with the law, and if so, what compensation should be awarded for the loss of the land's value due to the easement. Additionally, the court had to consider the heads of compensation that were appropriate in this case, including whether an allowance for a "blot on title" was justified.

The court held that the easement was necessary and reasonable given the circumstances, and it was imposed in accordance with the law. The court found that the plaintiff was entitled to compensation for the diminution in value of the land due to the easement. In determining the appropriate compensation, the court considered the nature and extent of the easement, the impact on the land's value, and the potential for future development. The court concluded that the heads of compensation included the diminution in value of the land, but did not consider an allowance for a "blot on title" appropriate in this case. The court awarded compensation to Vartuli based on the evidence presented and the legal principles applicable.

The court ordered that Muhibbah Engineering (M) BHD pay Vartuli the sum of $365,000 as compensation for the easement imposed over the land. The court further directed that the compensation be paid within 28 days of the judgment. The court did not find it necessary to award any additional compensation for a "blot on title."

Orders