Lord v McMahon (No. 3) [2016] NSWSC 1686

Lord v McMahon (No. 3) [2016] NSWSC 1686

Because Mr McMahon had been found to have acted reasonably though wrongfully, the appropriate mandatory relief was to require works that would lessen the likelihood of further injury, with cost being an important consideration, rather than to eliminate every possible risk of nuisance. The Court preferred Mr McVey's northern spillway solution because it was cheaper, used an offset reconfigured dam with a clay liner and trickle pipe, adequately addressed minor and major flows, avoided the risk of creating a new nuisance on Lot 3, and sufficiently reduced flows onto Lot 2. Relief for dam works had to be conditional because Mrs Lord's own attempted abatement had worsened aspects of the nuisance.

Jurisdiction
Australia
Judgment Date
01 December 2016
Procedural Posture
Equity Proceedings in Trespass and Nuisance Concerning Adjoining Land / Third Judgment on Final Relief After Liability Findings in Earlier Judgments; Costs Reserved
Outcome
Orders made for agreed roadway drainage works and for short minutes to give effect to dam works based on the defendant's preferred methodology; costs reserved.
Legal Topics
['nuisance' 'trespass' 'mandatory Quia Timet Restorative Injunction' 'dam Runoff' 'road Drainage' 'abatement of Nuisance' 'final Relief']
['equity' 'property Law' 'tort Law'] ['nuisance' 'trespass' 'mandatory Quia Timet Restorative Injunction' 'dam Runoff' 'road Drainage' 'abatement of Nuisance' 'final Relief']

Case Brief

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Procedural Posture

Equity Proceedings in Trespass and Nuisance Concerning Adjoining Land / Third Judgment on Final Relief After Liability Findings in Earlier Judgments; Costs Reserved

Legal Issues

  1. 1 ['What final injunctive relief should be ordered to abate the nuisance caused by inadequate road drainage on Lots 2 and 3.' "Whether the plaintiff's expert's southern spillway solution or the defendant's expert's northern spillway solution should be adopted to abate the nuisance caused by the dam runoff." 'How the costs of road drainage works and dam-related earthworks should be allocated between the parties.' "Whether relief for the dam nuisance should be conditional because of the plaintiff's own attempted abatement works."]

Ratio Decidendi

Because Mr McMahon had been found to have acted reasonably though wrongfully, the appropriate mandatory relief was to require works that would lessen the likelihood of further injury, with cost being an important consideration, rather than to eliminate every possible risk of nuisance. The Court preferred Mr McVey's northern spillway solution because it was cheaper, used an offset reconfigured dam with a clay liner and trickle pipe, adequately addressed minor and major flows, avoided the risk of creating a new nuisance on Lot 3, and sufficiently reduced flows onto Lot 2. Relief for dam works had to be conditional because Mrs Lord's own attempted abatement had worsened aspects of the nuisance.

Court Disposition

Orders made for agreed roadway drainage works and for short minutes to give effect to dam works based on the defendant's preferred methodology; costs reserved.

Orders

  • ['The Court orders that to remedy the nuisance arising from inadequate road drainage on the parties\' respective roadways on Lots 2 and 3 that road drainage works ("the roadway works") are to be carried out by the defendant substantially in conformity with the agreed expert evidence contained in Exhibits J and L and...