Committee of the Trangie Nevertire Irrigation Scheme v Smith [2013] NSWSC 128

Committee of the Trangie Nevertire Irrigation Scheme v Smith [2013] NSWSC 128

The modernisation works were works for the maintenance and administration of the Scheme and, although they constituted a substantial variation requiring member approval under cl 7(c), the members other than the defendants had informally but effectively approved or ratified the works. The modernisation plan and completed works therefore formed part of the Scheme and System as they stood. On that basis the Committee was entitled under cl 70 to access the defendants' land, and under cl 71 to require an easement in the terms sought because it was necessary or desirable for the proper implementation, maintenance and administration of the Scheme. Injunctive relief and the grant of an easement...

Jurisdiction
Australia
Judgment Date
13 February 2013
Procedural Posture
Equity Division Commercial List Proceedings Seeking Injunctive Relief and Grant of an Easement / Principal Judgment After Hearing; Damages Reserved for Separate and Posterior Determination
Outcome
Plaintiffs entitled to injunctions sought and to bring in draft orders; first plaintiffs made good their claim to the grant of an easement.
Legal Topics
['interpretation of Deed' 'irrigation Scheme' 'access to Land' 'easements' 'contractual Licence' 'approval and Ratification by Members' 'injunctions']
['contracts' 'property' 'equity'] ['interpretation of Deed' 'irrigation Scheme' 'access to Land' 'easements' 'contractual Licence' 'approval and Ratification by Members' 'injunctions']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceedings Seeking Injunctive Relief and Grant of an Easement / Principal Judgment After Hearing; Damages Reserved for Separate and Posterior Determination

Legal Issues

  1. 1 ["Whether construction of the S&D Pipeline constituted the 'implementation, maintenance and administration' of the Scheme pursuant to clause 70 of the Deed." "Whether the plaintiffs or any of them had a right to be granted an easement by the defendants over all or any part of the defendants' lands having regard to clause 71 of the Deed." 'If an easement was required, what terms and extent of easement the plaintiffs were entitled to be granted.' 'Whether the plaintiffs were entitled to any right by way of contractual licence or otherwise obliging the defendants to permit entry to their land for construction of the S&D Pipeline or lining the existing channels.' 'Whether the Co-operative had been appointed an agent of the first plaintiff and if so when and for what purposes.' 'Whether on 25 November 2009 the Co-operative validly adopted its new rules having regard to s.111 and s.189 of the Co-Operatives Act 1992.']

Ratio Decidendi

The modernisation works were works for the maintenance and administration of the Scheme and, although they constituted a substantial variation requiring member approval under cl 7(c), the members other than the defendants had informally but effectively approved or ratified the works. The modernisation plan and completed works therefore formed part of the Scheme and System as they stood. On that basis the Committee was entitled under cl 70 to access the defendants' land, and under cl 71 to require an easement in the terms sought because it was necessary or desirable for the proper implementation, maintenance and administration of the Scheme. Injunctive relief and the grant of an easement...

Court Disposition

Plaintiffs entitled to injunctions sought and to bring in draft orders; first plaintiffs made good their claim to the grant of an easement.

Orders

  • ['The plaintiffs are to bring in short minutes of order to give effect to the reasons.' 'The exhibits are to be handed out.' 'The balance of the proceedings is stood over to the directions list on 1 March 2013.' 'The question of damages was reserved for separate and posterior determination.']