Henderson v Hickling (No 2) [2010] NSWLEC 214

Henderson v Hickling (No 2) [2010] NSWLEC 214

The Court extended the interim injunction because the alleged absence of approval to construct the fence and remove the lilly pilli hedge, alleged ambiguity in the plans, and alleged failure to notify the applicants of the change in the nature of the fence gave rise to serious questions to be tried, and the balance of convenience favoured a brief continuation of relief given the undertaking as to damages, the adequacy of damages for the respondents, the mature hedge being difficult to replace once removed, and the short duration of the extension.

Jurisdiction
Australia
Judgment Date
15 October 2010
Procedural Posture
Injunctions and Declarations / Application to Extend an Interim Ex Parte Injunction Pending an Application for More Permanent Relief
Outcome
Interim injunction extended.
Legal Topics
['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'development Approval' 'fence Construction' 'hedge Removal']
['land and Environment' 'injunctions'] ['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'development Approval' 'fence Construction' 'hedge Removal']

Case Brief

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Procedural Posture

Injunctions and Declarations / Application to Extend an Interim Ex Parte Injunction Pending an Application for More Permanent Relief

Legal Issues

  1. 1 ['Whether there was a serious question to be tried concerning approval to construct a lapped and capped paling fence and remove the lilly pilli hedge.' 'Whether ambiguity in the development approval plans and alleged failure to notify the applicants of the change in the nature of the fence raised serious questions to be tried.' 'Whether the balance of convenience favoured a brief continuation of the interim injunction.']

Ratio Decidendi

The Court extended the interim injunction because the alleged absence of approval to construct the fence and remove the lilly pilli hedge, alleged ambiguity in the plans, and alleged failure to notify the applicants of the change in the nature of the fence gave rise to serious questions to be tried, and the balance of convenience favoured a brief continuation of relief given the undertaking as to damages, the adequacy of damages for the respondents, the mature hedge being difficult to replace once removed, and the short duration of the extension.

Court Disposition

Interim injunction extended.

Orders

  • ['The interim injunction granted in the first Henderson decision is extended to 12.00 pm, 18 October 2010.' 'The applicants are to file and serve a summons and notice of motion, together with any affidavit material upon which they may seek to rely by 10.00 am, 18 October 2010.' 'The costs of today are reserved.']