Land and Environment Court of New South Wales CITATION : Henderson v Hickling [2010] NSWLEC 213 FIRST APPLICANT Barry Henderson SECOND APPLICANT Heather Henderson PARTIES : FIRST RESPONDENT Martin Hickling SECOND RESPONDENT Jane Hickling FILE NUMBER(S) : 40840 of 2010 CORAM: Pepper J KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- urgent ex parte telephone application for an interlocutory injunction - a serious question to be tried - balance of convenience favoured the granting of the injunction - injunction granted CASES CITED: Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 DATES OF HEARING: 15 October 2010 EX TEMPORE JUDGMENT DATE : 15 October 2010 APPLICANTS Mr G McKee (solicitor) SOLICITORS McKee Solicitors LEGAL REPRESENTATIVES: RESPONDENTS No appearance SOLICITORS Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PEPPER J 15 October 2010 40840 of 2010 Barry & Heather Henderson v Martin & Jane Hickling EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: At approximately 8.45 am today I granted an urgent interim injunction by telephone in favour of a property owner, Mr Barry Henderson, against the cutting down of a lilly pilli hedge in order to erect a fence that divides two properties in Ku-ring-gai. Background 2 The circumstances of the grant are, according to the submissions made over the telephone to me by Mr Graham McKee, the solicitor making the application on behalf of Mr Henderson, that the hedge divides the two properties and was to be removed in order for the construction of a pool fence to proceed. The property on which the pool fence is to be erected has a heritage listed dwelling located on it. 3 Mr McKee states that he has spoken to the project manager of the development and there is no plan in the development application authorising the removal of the hedge or the erection of the type of fence proposed to be constructed. It is Mr McKee's belief that development approval is needed to do both and that none has been given. 4 Mr McKee indicated to the Court that he had written to the land owners seeking to erect the fence, Mr Martin Hickling and Mrs Jane Hickling, two days ago to advise them that they did not have approval to build the fence or to remove the hedge, but that no response was forthcoming. He therefore assumed that this was the end of the matter. 5 However, early this morning construction workers arrived to commence the construction of the fence and to remove the hedge, hence the urgent ex parte nature of the application. Legal Principles to be Applied 6 In Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103, Biscoe J usefully (at [4]-[5]) summarised the principles to be applied for the grant of an interlocutory injunction as follows: 4 An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 at 153-4; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 at [13] (Campbell J); Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 at [6] (Preston CJ). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent or a third party would be likely to suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Tegra at [18]–[19]. Thus, the balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536 (McLelland J). Although normally the Court does not undertake an interlocutory trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case ( Beecham at 622), in some cases the strength of the applicant's case, above the threshold of a serious question, may be relevant to the risk of doing an injustice: Castlemaine at 154; Kolback at 536. 5 Usually, an applicant for an interlocutory injunction is required to give the Court an undertaking as to damages. This undertaking underwrites the risk, and responds to the court's anxiety, that the grant of the interlocutory injunction might later prove to be the wrong course of action and cause the respondent or a third party damage for which there is no redress except by an order for costs: European Bank Ltd v Evans [2010] HCA 6, 264 ALR 1 at [15]; Inetstore at [28]; Tegra at [28]-[31]. The "usual undertaking as to damages" is defined in r 25.8 of the Uniform Civil Procedure Rules 2005 as follows: " 25.8 Meaning of "usual undertaking as to damages" The 'usual undertaking as to damages', if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking." Consideration 7 Applying these principles, I find that, first, whether or not there is approval to construct the fence and to remove the hedge raises a serious question to be tried. 8 Second, having regard to the factors comprising the balance of convenience, in particular, the urgency of the application, the irrevocable nature of the destruction of the hedge if no injunction is granted and the fact that Mr Henderson has, through Mr McKee, given the usual undertaking as to damages, it is appropriate that I grant the injunction against the removal of the lilly pilli hedge effective immediately and continuing until 3.00 pm today (the first available opportunity Mr McKee can attend Court). 9 If an extension of the injunction granted is sought, the parties are to appear before the Court. 10 Mr McKee agreed to immediately inform Mr and Mrs Hickling of the terms of these orders. Orders 11 The Court makes an order restraining Mr and Mrs Hickling, by themselves, their employees, contractors or agents from removing or from lopping, trimming or cutting any part of the lilly pilli hedge or constructing the fence between the two properties until 3.00 pm, 15 October 2010. 12 Any extension of the injunction is to be sought in person before the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.