White Rock Wind Farm Pty Ltd v Dulhunty [2023] NSWSC 1464

Supreme Court New South Wales

Medium Neutral Citation: White Rock Wind Farm Pty Ltd v Dulhunty [2023] NSWSC 1464 Hearing dates: 17 – 19 May 2023, 1 September 2023 Decision date: 30 November 2023 Jurisdiction: Equity Before: Robb J Decision: See [237]-[238] Catchwords: LEASES AND TENANCIES – assignment and subletting – consent – where defendants entered into lease agreements with plaintiff to enable it to construct and operate a wind farm on their land – where second and third defendants granted options to plaintiff to acquire a separate lot that would be subdivided for the construction of an electricity substation – where second, third and fifth defendants granted options to plaintiff to acquire easements over their land and over an access road for the erection of a high voltage electricity transmission line – where all options expired without having been exercised by plaintiff – where plaintiff sought defendants' consent to grant a non-exclusive access licence under the lease agreements to an electricity transmission network operator – where defendants did not consent to the grant of the proposed non-exclusive access licence – whether defendants unreasonably withheld consent – whether the legal relationship between the parties changed when the plaintiff allowed all of its options to expire – whether it was reasonable for the defendants to require the electricity transmission network operator to accept the grant of an access easement along an access road and to require the plaintiff to pay an additional consideration for the grant EQUITY – equitable remedies – specific performance – cross-claim by first and second defendants against plaintiff – where defendants and plaintiff entered into a deed of release to compromise disputes which arose during the course of the construction of the wind farm – where the deed of release provided that, inter alia, the plaintiff is to undertake a survey and create an easement to accommodate the realignment of a right of way to allow for access tracks to cross the boundaries of land owned by the defendants – where the deed of release further provided, inter alia, that the plaintiff is to remediate damage to parts of the land owned by the defendants in accordance with various "punch lists" – whether the Court should order specific performance of the creation of an easement to accommodate the realignment of a right of way – whether the Court should order specific performance of the completion of remediation items in the "punch lists" which remain outstanding or incomplete Legislation Cited: Conveyancing Act 1919 (NSW), s 88A Conveyancing (General) Regulation 2008 (NSW), cl 53 Conveyancing (General) Regulation 2018 (NSW), Sch 3 Energy Services Corporations Act 1995 (NSW) Cases Cited: Construction Technologies Australia Pty Ltd v Doueihi (No 5) [2018] NSWSC 294 Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296; (2013) 17 BPR 32,709 International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] 1 Ch 513 Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2000] NSWSC 1100 Texts Cited: AJ Bradbrook and SV MacCallum, Bradbrook and Neave's Easements and Restrictive Covenants (3rd ed, 2011, LexisNexis Butterworths) Category: Principal judgment Parties: White Rock Wind Farm Pty Ltd (Plaintiff/Cross-Defendant) Robert Venour Dulhunty (First Defendant/First Cross-Claimant) John Langley Wood (Second Defendant/Second Cross-Claimant) John Wood (Harvesting) Pty Ltd (Third Defendant) William Archibald Cameron (Fourth Defendant) James Sidney Nugent (Fifth Defendant) Representation: Counsel: A Smith (17-19 May 2023), P Abdiel (1 September 2023) (Plaintiff/Cross-Defendant) P Folino-Gallo (First, Second, Third and Fourth Defendants/Cross-Claimants)