Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, HAYNE, AND CALLINAN JJ

BANKSTOWN CITY COUNCIL APPELLANT

AND

ALAMDO HOLDINGS PTY LIMITED RESPONDENT

Bankstown City Council v Alamdo Holdings Pty Ltd

[2005] HCA 46

7 September 2005

S480/2004

ORDER

1. Appeal allowed.

2. Set aside orders 1 and 2 of the Court of Appeal of the Supreme Court of New South Wales entered on 12 October 2004 and in their place order:

(a) the appeal to that Court is allowed; and

(b) orders 1 - 5 of Gzell J made on 16 December 2003 are set aside and in their place order that the proceedings be dismissed.

3. Appellant to pay the costs of the respondent of the appeal to this Court.

4. Respondent's application for special leave to appeal is dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with E G Romaniuk for the appellant (instructed by Marsdens)

P Le G Brereton SC with J Stoljar for the respondent (instructed by Speed and Stracey)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bankstown City Council v Alamdo Holdings Pty Ltd

Nuisance – Local government – Drainage – Nuisance in exercise of statutory powers – Indemnity under Local Government Act 1993 (NSW), s 733 for acts or omissions done in good faith relating to the likelihood of land being flooded or the nature or extent of such flooding – Council constructed and operated drainage system whilst involved in the process of urbanisation – Drainage system caused flooding of adjacent land owned by respondent – Whether Council thereby incurred "liability in respect of" its conduct in constructing and operating drainage system – Whether Council acted "in good faith".

Statutes – Construction – Council's statutory indemnity for conduct done in good faith relating to the likelihood or nature or extent of flooding – Whether indemnity precludes the grant of injunctive relief in addition to precluding award of damages for nuisance – Relevance of the objective of s 733 in protecting local government bodies – Relevance of the respective consequences of grant of damages and grant of injunctive relief – Relevance of discretionary nature of injunctive relief – Whether s 733 applies only to liability in respect of past events – Whether liability to injunctive relief is liability in respect of past events.