White Rock Wind Farm Pty Ltd v Dulhunty (No 2) [2023] NSWSC 1631

Supreme Court New South Wales

Medium Neutral Citation: White Rock Wind Farm Pty Ltd v Dulhunty (No 2) [2023] NSWSC 1631 Hearing dates: On the papers Date of orders: 20 December 2023 Decision date: 20 December 2023 Jurisdiction: Equity Before: Robb J Decision: See [42] Catchwords: JUDGMENTS AND ORDERS – Orders to give effect to reasons in principal judgment in light of parties' further submissions Cases Cited: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 White Rock Wind Farm Pty Ltd v Dulhunty [2023] NSWSC 1464 Category: Consequential orders 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: P Abdiel (Plaintiff/Cross-Defendant) P Folino-Gallo (First, Second, Third and Fourth Defendants/Cross-Claimants)

Solicitors: King & Wood Mallesons (Plaintiff) Diamond Conway (First, Second, Third and Fourth Defendants/Cross-Claimants) File Number(s): 2021/00199411 Publication restriction: Nil

JUDGMENT 1. The Court delivered its primary judgment in these proceedings on 30 November 2023: see White Rock Wind Farm Pty Ltd v Dulhunty [2023] NSWSC 1464. 2. At J [237], I set out proposed orders to give effect to the reasons in the primary judgment. At J [238], I invited the parties to advise my Associate if they agreed with the proposed orders, and to the extent that they did not, they were invited to make submissions concerning the orders that should be made. I took that course because the proceedings were heard on the basis of prayers for relief in a summons and a cross summons and the Court did not have the benefit of pleadings. The issues and the evidence were complex and I was of the view that it was possible that the Court may have misunderstood some subtleties in the issues. 3. These reasons assume knowledge of the principal judgment. I will use the same abbreviations. Capitalised words generally refer to defined terms in the various transaction documents that were considered in the principal judgment. 4. The Landowners and White Rock provided written submissions on 11 December 2023. 5. I will not refer to the small number of typographical errors that will be corrected. 6. The only substantive submission made by the Landowners was to the effect that White Rock should be ordered to pay the cross claimants' costs of the claim in prayer 6 of the cross summons, which sought an order that White Rock specifically perform and carry out its agreement to undertake the works in the "punch lists" with Mr Dulhunty and Mr Wood. 7. If the Court were to accede to that submission, it would reverse the effect of proposed orders 10 and 11, which had the effect that Mr Dulhunty and Mr Wood were ordered to pay White Rock's costs of this issue. 8. White Rock first made submissions in relation to proposed orders 5 and 10, which concerned the relief claimed in prayers 1 to 4 of the cross summons. In substance, those claims were concerned with the transfer of the Substation Land to White Rock. The proposed orders were in the following terms: 5. Note that the relief claimed in prayers 1 to 4 of the cross claim has been obviated by the making of an order for specific performance against the cross defendant at the hearing. 10. Order the cross defendant to pay the cross claimants' costs of the issues raised by prayers 1 to 5 of the cross claim. 1. White Rock proposed that the following alternative order 5 be made: 5. Note that the relief claimed in prayers 1 to 4 of the cross claim has been obviated by the making of orders, by consent, resolving those matters. 1. White Rock submitted that proposed order 10 should be revised to provide that Mr Dulhunty and Mr Ward be ordered to pay its costs of the claim in prayers 1 to 4, rather than that the costs order be the other way around. 2. Then, White Rock made submissions about proposed orders 6 and 10. Proposed order 6 is an order that White Rock specifically perform its agreement of 23 December 2015 to undertake a survey and create an easement to accommodate the realignment of the right-of-way to allow for the access tracks to cross the boundaries of land owned by the Landowners. 3. White Rock submitted that order 6 should be amended to provide: 6. Order that White Rock will resurvey the Access Track and take all necessary steps to lodge all necessary documents to have the present alignment of the Access Track reflected on the titles of the land of each of the landowners as easements. 1. White Rock submitted that proposed order 10 should be amended to provide that there be no order as to the costs of this issue, rather than that White Rock be ordered to pay the cross claimants' costs of the issue. 2. The final change to the proposed orders submitted by White Rock concerned proposed order 8, which related to the claim in prayer 6 of the cross summons for an order that White Rock specifically perform and carry out its agreement to undertake the works in the "punch lists" with Mr Dulhunty and Mr Wood. 3. White Rock submitted that proposed order 8 should be removed. However, White Rock submitted that proposed orders 10 and 11, which would have the effect that the cross claimants would be ordered to pay its costs of this issue, should stand. 4. It will be convenient to deal with proposed order 8 and the related cost order first. The reason is that in par 15 of its submissions, White Rock has misstated the effect of proposed order 8. White Rock submitted: 15. By order 8, however, the Court made an order for certain remediation works to be performed by White Rock. That order should be removed from paragraph [237], for all the reasons that the Court denied the cross-claimants specific performance of this issue, including that… 1. Proposed order 8 commenced: "Note the agreement between the parties to the cross claim concerning the performance of the cross defendant of the works in the "punch lists" referred to in prayer 6 of the cross claim: being…"[emphasis added]. It is true, as White Rock submitted, that I declined to make an order for specific performance of the agreement in the Deed of Release in respect of the "punch lists" items. Proposed order 8 is only a note of the agreement between the parties. The Court was informed of that agreement at the hearing. I remain of the view that the Court's orders should contain a note of the agreement reached between the parties. That may have some prospect of limiting further disputation between the parties on the subject, and it will have the effect that the orders will be more complete in relation to the issues dealt with at the hearing. 2. Having regard to the parties' submissions, I am satisfied that the appropriate order to be made in respect of the costs of the issue raised by prayer 6 of the cross summons is that no order be made as to those costs, with the intent that the parties pay their own costs of the issue. I reject the submissions made by the cross claimants that White Rock should be ordered to pay their costs of the issue. I remain of the view that the cross claimants' application for an order for specific performance by White Rock of its agreement in relation to the "punch lists" items was misconceived for technical reasons relating to the inability of the Court to supervise the work required to be done under an order for specific performance. I also remain of the view that the issues raised by the claim were substantially obscured by the fact that the claim was not pleaded. On the other hand, upon reflection, I accept the cross claimants' submission that White Rock apparently 'dragged the chain' in relation to carrying out outstanding "punch lists" items, and that many of those items were attended to during the relatively lengthy course of the proceedings, and, at the hearing, an agreement was reached in relation to remediation of all of the remaining outstanding items. I appreciate that the Court was, at the end of the day, not required to come to grips with this extremely complex forensic issue, in respect of which there was a relatively substantial amount of evidence. Although the position is not as simple as it may have been if the parties had settled this claim before the commencement of the hearing, the ultimate practical effect was the same. That is, I am satisfied that the cross claimants acted reasonably in taking proceedings to compel White Rock to complete all of the agreed "punch lists" items. Though they may have been misguided in seeking an order for specific performance, it is probable that, if they had sought more orthodox relief, the proceedings would have become exceedingly complicated. The cross claimants ultimately succeeded in obtaining a satisfactory resolution to their claim. But the fact is that the Court has not been called upon to decide, on the basis of the evidence, whether the cross claimants were entitled to have the remaining "punch lists" items dealt with by White Rock. The Court was clearly not required to resolve the dispute in relation to all of the "punch lists" items that were attended to by White Rock during the course of the proceedings. In the circumstances, I consider that the principle enunciated by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 ought to be applied. 3. I will now turn to White Rock's submissions concerning the orders that should be made in relation to the dispute about the sale of the Substation Land by Mr Wood. 4. Prayers 1 to 4 of the cross summons are set out at J [26]. The relief claimed is indefinite in that, in substance, it sought a declaration that the Deed of Release was a binding and enforceable agreement, and an order that it be specifically performed. The cross summons did not identify the particular term of the Deed of Release that the cross claimants wished to have performed. It turns out that the relevant provision was clause 6. That provision is not set out in the primary judgment, as it had ceased to be relevant at the time the primary judgment was delivered. Clause 6 of the Deed of Release in fact provides: 6. [White Rock] and [Mr Wood] must enter into and complete (in accordance with its terms) a contract for the sale of land on the terms set out in Annexure D within 20 business days of the date of this deed unless otherwise agreed between [White Rock] and [Mr Wood]. 1. Annexure D to the Deed of Release required White Rock and Mr Wood to enter into a contract for sale of land on the same terms and conditions as Annexure 1 of the Option Agreement to Purchase Substation Land between White Rock and Mr Wood dated 16 September 2014. It also required White Rock, or its nominee purchaser, to grant to Mr Wood a perpetual access easement over the Substation Land on certain terms. There was also an agreement for White Rock and Mr Wood to enter into an Option Agreement to purchase substation land of up to an additional 100 m x 100 m. The Option Agreement to Purchase Substation Land is considered at J [43]-[49]. Relevantly, that agreement contemplated that the Substation Land would be purchased by White Rock. 2. The purpose of clause 6 of the Deed of Release was to enable White Rock to satisfy an obligation that it undertook in favour of TransGrid in the Project Agreement that is considered at J [86]-[95]. The relevant provision is clause 24.1, which provided: 24.1 Substation Site The Customer must, no later than the Date of Practical Completion …at its own cost execute any document and do any act reasonably required by TransGrid…to ensure that legal and beneficial title to the Substation Site is transferred to TransGrid free and clear of any Security Interest. The Substation Site shall be of sufficient size as determined by TransGrid including a 20m buffer zone. Failure to comply with this clause 24 shall be deemed a Default for the purpose of clause 16. 1. Clause 6 of the Deed of Release therefore required White Rock to purchase the Substation Land from Mr Wood, and clause 24.1 of the Project Agreement obliged White Rock to ensure that legal and beneficial title to the Substation Land be transferred to TransGrid. However, Annexure D to the Deed of Release expressly contemplated that the contract to purchase the Substation Land would be completed by a nominee of White Rock. This reflected the obvious position that it would be necessary for TransGrid to own and operate the Substation. 2. Proposed order 5 provides: 5. Note that the relief claimed in prayers 1 to 4 of the cross claim has been obviated by the making of an order for specific performance against the cross defendant at the hearing. 1. The alternative order that White Rock submits should 5 be made is set out above at [9]. Thus, the order proposed by the Court is a note that the Court had made an order for specific performance against White Rock, and White Rock submitted that instead a reference should be made simply to "orders, by consent". 2. In the circumstances, I will set out the orders that the parties asked the Court to make by consent on day three of the hearing: The Court directs that: 1. Pursuant to section 90 Civil Procedure Act 2005 (NSW) and/or all other enabling powers, the Court order that the Plaintiff/Cross-Defendant specifically perform clause 6 of the Deed of Settlement and Release dated 19 November 2018 ('the Deed') by procuring the Electricity Transmission Ministerial Holding Corporation ABN 19 622 755 774 to simultaneously exchange and settle the contract for sale of [the Substation Land], as marked in the plan attached to that contract) a copy of which is located at pages 1552 to 1670 of exhibit JLW-1 exhibited to the affidavit of John Langley Wood affirmed 14 November 2021 ('the Contract'). 1. Order 2 provided for the simultaneous exchange and completion of the Contract on 8 June 2023. 2. It will be noted that order 1 is technically an order for specific performance of clause 6 of the Deed of Release. By agreement between the parties, White Rock was required to specifically perform its obligation under clause 6 of the Deed of Release by procuring TransGrid to purchase the Substation land. 3. It must be observed, as I have explained above, that the cross summons simply sought an order that the Deed of Release be specifically performed. Performance of clause 6 of the Deed of Release would have involved White Rock purchasing the Substation Land from Mr Wood. If it had done that, it could have transferred that property to TransGrid in performance of its obligation in clause 24.1 of the Project Agreement. 4. White Rock made the submission in par 6 of its submissions that the claims in prayers 1 to 4 of the cross summons were resolved in a way that differed from the relief sought by the cross claimants. It submitted: "There was no evidence as to why the relief sought in the cross-claim did not reflect what was sought by Mr Wood. There is no evidence to suggest that that position could not have been achieved prior to the proceedings, or that it was the fault of White Rock, because TransGrid had not concluded a purchase of the Substation Land earlier." 5. White Rock further submitted that, in the circumstances, proposed order 10 ought to be amended so that costs should be awarded to White Rock on this issue, or at a minimum, no order as to costs ought to be made. 6. White Rock submitted that there was evidence that White Rock was ready, willing and able (and in fact had sought to) perform its obligations under clause 6 of the Deed of Release. White Rock relied upon the evidence of Jeffrey Ware in his affidavit affirmed on 10 June 2022, as follows: 6. White Rock has never denied or disputed that there is a binding and enforceable agreement between the First and Second Cross Claimant in the terms set out in the Deed of Settlement and release that the parties entered into on 19 November 2018 (and for completeness confirms same in relation to the Third, Fourth and Fifth Defendants ("Deed). 7. White Rock has performed and carried into execution the terms set out in the Deed. 1. White Rock was obliged to perform clause 6 of the Deed of Release. It did not do so until, presumably, it satisfied order 1 made by the Court on the third day of the hearing. If a party does not perform its contractual obligation, it is no answer when the other party commences proceedings to enforce performance that the first party says it has never denied or disputed the obligation. As to par 7 of Mr Ware's affidavit, whatever performance by White Rock of the Deed of Release that he was referring to, that did not include clause 6. 2. So far as I am aware, White Rock at no stage suggested that it had some defence to the claim by Mr Wood that it was required to perform clause 6 of the Deed of Release. It simply did not do so. Ultimately, it agreed to do so on the third day of the hearing. I am satisfied that in those circumstances White Rock should be ordered to pay the cross claimants' costs of prayers 1 to 4 of the cross summons. 3. The final issue that requires attention is whether proposed order 6 should be amended, and as to what the costs of that issue should be. 4. The evidence of the agreement to which proposed order 6 relates is the email that is set out at J [96]. Proposed order 6 adopts the simple language of that email. As was noted at J [203]: "White Rock has not made a submission that an order in those terms would be unsatisfactory." That is why I added proposed order 7, that would grant leave to the parties to apply for such relief as may be necessary or convenient to give proper effect to the previous order for specific performance. 5. In par 11 of its submissions, White Rock submitted that the revision proposed by it more closely reflects the nature of the concession made by White Rock in the affidavit of Mr Ware affirmed 6 June 2022, at par 60, "but also reflects that White Rock cannot necessarily "create an easement" over land of which it is not an owner". 6. In his affidavit, Mr Ware said: 60. In relation to paragraphs 97 to 101 of the First Wood Affidavit, following construction works being completed for the wind farm, the alignment of the Access Track has changed from which is reflected and registered on title. White Rock will, at its cost: a. resurvey the Access Track; and b. do all necessary works and lodge all necessary documents to have the present true alignment of the Access Track reflected on the titles of the land of each of the Landowners. c. The works in relation to the resurvey of the access track are merely administrative and not urgent and do not, at least to my knowledge, prejudice the landowners at this time. 1. In the circumstances, I accept that order 6 should be made in the revised terms proposed by White Rock. That order should be effective to give the cross claimants the result they seek, provided all Landowners cooperate with White Rock. 2. The reasons given by White Rock as to why there should be no order as to costs of this issue are that there is no evidence that any of the Landowners have suffered any detriment or prejudice arising from the right of way not being a registered easement during the eight years that this issue has remained unresolved. Further, it submitted that concessions were made by White Rock well in advance of the hearing. White Rock submitted that, strictly, prayer 5 of the cross claim was in inappropriate terms, insofar as it sought an order that White Rock specifically perform an agreement to create an easement, given that White Rock was not the owner of any servient tenement. Finally, White Rock submitted that the broad relief claimed in prayers 1 and 2 of the cross claim was inappropriate in the absence of all necessary parties. 3. The cross claim was filed on 18 November 2021. White Rock made the concession contained in par 60 of Mr Ware's affidavit on about 10 June 2022. In the circumstances, White Rock should be ordered to pay the cross claimants' costs of the issue raised by prayer 5 of the cross claim up to 10 June 2022, and there should be no order as to the parties' costs of that issue after 10 June 2022, with the intent that after that the parties will bear their own costs. 4. The Court's orders are: 1. Order that the plaintiff's claims in prayers 1 and 3 of the summons be dismissed. 2. Note that the plaintiff's claim for the relief in prayer 2 of the summons was abandoned at the hearing. 3. Dismiss the plaintiff's claim for the relief in prayers 4 and 5 of the summons. 4. Note that the dismissal of the plaintiff's claim for relief in prayers 4 and 5 of the summons is made without any finding as to the merits of those claims. 5. Note that the relief claimed in prayers 1 to 4 of the cross claim has been obviated by the making of an order for specific performance against the cross defendant at the hearing. 6. Order that White Rock resurvey the Access Track and take all necessary steps to lodge all necessary documents to have the present alignment of the Access Track reflected on the titles of the land of each of the landowners as easements. 7. Grant leave to the parties to apply for such relief as may be necessary or convenient to give proper effect to the previous order for specific performance. 8. Note the agreement between the parties to the cross claim concerning the performance by the cross defendant of the works in the "punch lists" referred to in prayer 6 of the cross claim, being: 1. The list appearing at CB 2041 to CB 2042 is the Agreed Punch List between them for the purposes of clause 25 of the Dulhunty Lease as varied. 2. The list appearing at CB 2046 to CB 2048 is the Agreed Punch List between them for the purposes of clause 25 of the Wood Lease as varied. 3. Within six months of final orders; 1. White Rock will rectify the V-shaped drain identified as Dulhunty Punch List Item 7. 2. White Rock will remove timber piles that have been left throughout the property identified as Dulhunty Punch List Item 8, provided that those timber piles are a consequence of the construction of the wind farm. 3. White Rock will remove felled trees as identified as Wood Punch List Item 27. 4. White Rock will complete remediation work on the culvert outlet, batter chute and reshaping of the land beneath it identified as Wood Punch List Items 60, 100 and 104. 5. White Rock will remediate the scouring and erosion on the TransGrid Track identified as Wood Punch List Item 102. 6. White Rock will remediate all batters on the Dulhunty Land, provided that those batters require remediation and are able to be remedied. 1. In accordance with Clause 25.3(a) of the Variation of Lease between Mr Dulhunty and White Rock Wind Farm, White Rock will notify Mr Dulhunty in writing of any punch list items which it considers have been completed. 2. In accordance with Clause 25.3(a) of the Variation of Lease between Mr Wood and White Rock, White Rock will notify Mr Wood in writing of any punch list items which it considers have been completed. 3. In accordance with Clause 25.3(a) of the Variation of Lease between John Wood (Harvesting) Pty Ltd and White Rock, White Rock will notify John Wood (Harvesting) Pty Ltd in writing of any punch list items which it considers have been completed. 1. Order the plaintiff to pay the defendants' costs of the issues raised by the summons. 2. Order the cross defendant to pay the cross claimants' costs of the issues raised by prayers 1 to 4 of the cross claim. 3. Order the cross defendant to pay the cross claimants' costs of the issues raised by prayer 5 of the cross summons up to 10 June 2022, after which there will be no order for the costs of those issues with the intent that the parties will bear their own costs. 4. Order that there be no order for the payment of the costs of the issues raised by prayers 6 and 7 of the cross claim with the intent that the parties will bear their own costs.