Nadilo v Eagleton [2020] NSWLEC 95

Nadilo v Eagleton [2020] NSWLEC 95

The applicant established a sufficiently arguable case in relation to the more northern air conditioning unit and the heat pump water heater, but not the second southerly air conditioning unit. On the balance of convenience, interim restraint was justified only for the more northern air conditioning unit because the applicant's sleep disturbance outweighed the respondents' winter inconvenience, while the operational, amenity and health-related impact of restricting the heat pump water heater outweighed its comparatively lower acoustic impact. Because each side had partial success on the motion, no costs order was made.

Jurisdiction
Australia
Judgment Date
03 July 2020
Procedural Posture
Class 4 Civil Enforcement Proceedings for Declaratory and Injunctive Relief Concerning Alleged Noise From Residential Equipment / Interlocutory Application for Interim Restraining Orders Pending Hearing of Respondents' Stay Application Listed for 27 July 2020
Outcome
Interlocutory relief granted in part; no order for costs.
Legal Topics
['noise Nuisance' 'interlocutory Injunction' 'balance of Convenience' 'delay' 'costs' 'residential Air Conditioning and Heat Pump Water Heater Noise']
['environmental Law' 'planning and Environment' 'civil Procedure'] ['noise Nuisance' 'interlocutory Injunction' 'balance of Convenience' 'delay' 'costs' 'residential Air Conditioning and Heat Pump Water Heater Noise']

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Procedural Posture

Class 4 Civil Enforcement Proceedings for Declaratory and Injunctive Relief Concerning Alleged Noise From Residential Equipment / Interlocutory Application for Interim Restraining Orders Pending Hearing of Respondents' Stay Application Listed for 27 July 2020

Legal Issues

  1. 1 ['Whether delay from December 2018 to commencement of the Land and Environment Court proceedings in May 2020 should disentitle the applicant to interlocutory relief.' 'Whether the applicant had a sufficiently arguable case concerning noise from the two air conditioning units and the heat pump water heater.' 'Whether the balance of convenience justified interim restraint on use of any equipment between 10pm and 7am until 27 July 2020.' 'Whether costs should be awarded on the motion where the applicant was only partly successful.']

Ratio Decidendi

The applicant established a sufficiently arguable case in relation to the more northern air conditioning unit and the heat pump water heater, but not the second southerly air conditioning unit. On the balance of convenience, interim restraint was justified only for the more northern air conditioning unit because the applicant's sleep disturbance outweighed the respondents' winter inconvenience, while the operational, amenity and health-related impact of restricting the heat pump water heater outweighed its comparatively lower acoustic impact. Because each side had partial success on the motion, no costs order was made.

Court Disposition

Interlocutory relief granted in part; no order for costs.

Orders

  • ['Until 2pm on 27 July 2020, the respondents, by themselves, their servants, agents and invitees, are restrained from using the more northern of the air conditioning units on the land known as 37 Puna Road, Wangi Wangi between the hours of 10pm and 7am each day.' 'The matter is set down for hearing on 3 and 4...