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

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

The Court settled final relief by ordering Mr McMahon to carry out dam works substantially in conformity with identified exhibits and reports, requiring Mr McMahon to bear the cost of works on Lot 3 and the parties to share initially the cost of works on Lot 2, and imposing charges on both parties' respective interests in Lots 2 and 3. The Court declined to impose detailed orders about the seepage problem, Exhibit L, specific stated outcomes, or a mandatory swale/catchment limit because the identified plans and expert involvement provided sufficient guidance and greater flexibility was appropriate.

Jurisdiction
Australia
Judgment Date
20 December 2016
Procedural Posture
Equity Proceedings Seeking Final Mandatory Injunctive Relief to Alleviate a Nuisance by Water / Final Relief and Form of Final Orders After Prior Judgments
Outcome
Final relief settled and final orders made, with proceedings adjourned for argument concerning costs.
Legal Topics
['final Mandatory Injunctive Relief' 'water Nuisance' 'dam Works' 'road Drainage Works' 'charges Over Land to Secure Payment for Works' 'boundary Fencing' 'dividing Fences']
['equity' 'nuisance' 'property Law'] ['final Mandatory Injunctive Relief' 'water Nuisance' 'dam Works' 'road Drainage Works' 'charges Over Land to Secure Payment for Works' 'boundary Fencing' 'dividing Fences']

Case Brief

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Procedural Posture

Equity Proceedings Seeking Final Mandatory Injunctive Relief to Alleviate a Nuisance by Water / Final Relief and Form of Final Orders After Prior Judgments

Legal Issues

  1. 1 ['Whether final orders should refer in detail to the cost and solution for a seepage problem not yet agreed between the parties.' 'What form of charge should be imposed on Lots 2 and 3 to secure payment for the dam works.' 'Whether Exhibit L should be included among the drawings to be followed in executing the dam works, including for a proposed boundary fence.' 'Whether the final orders should define specific outcomes for the works in addition to requiring conformity with identified plans and exhibits.' 'Whether the Court should order a swale or other measure to limit the modified dam catchment to 4,000m² to 6,000m².' 'What inspection and liberty to apply regime should accompany implementation of the dam works.']

Ratio Decidendi

The Court settled final relief by ordering Mr McMahon to carry out dam works substantially in conformity with identified exhibits and reports, requiring Mr McMahon to bear the cost of works on Lot 3 and the parties to share initially the cost of works on Lot 2, and imposing charges on both parties' respective interests in Lots 2 and 3. The Court declined to impose detailed orders about the seepage problem, Exhibit L, specific stated outcomes, or a mandatory swale/catchment limit because the identified plans and expert involvement provided sufficient guidance and greater flexibility was appropriate.

Court Disposition

Final relief settled and final orders made, with proceedings adjourned for argument concerning costs.

Orders

  • ["Order that to remedy the nuisance arising from the defendant's dam that dam works are to be carried out by the defendant substantially in conformity with the works proposed by Mr McVey contained in Exhibit 11 pages 42–51, Exhibit J page 1, Exhibit 12 and Exhibit N items 2.1–2.7." 'Order that the defendant will pay...