Pongrass v Adams [2004] NSWSC 669

New South Wales Supreme Court

CITATION : Pongrass v Adams [2004] NSWSC 669 HEARING DATE(S) : 19 July 2004 JUDGMENT DATE : 29 July 2004

JUDGMENT OF : Brownie AJ at 1 DECISION : Summons dismissed with costs

CATCHWORDS : Construction of a Deed PARTIES : Rodney Alexander Adams Nicolas Andru Pongrass & Leigh-Anne Clunes-Pongrass FILE NUMBER(S) : SC 1675/04 COUNSEL : M. Pesman - Plaintiff A. Enright - Defendant SOLICITORS : Colin Biggers & Paisley - Plaintiffs Bicknell & Monteith - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BROWNIE AJ

29 July 2004

1675/04 – PONGRASS v ADAMS JUDGMENT 1 HIS HONOUR: The plaintiffs, Mr. and Mrs. Pongrass, are the owners of a property known as 2A Castra Place, Double Bay. The defendant, Mr. Adams, was until recently the owner of a property known as 36 Stafford Street, Double Bay, which lies generally to the west of the property 2A Castra Place. The property 36 Stafford Street has the benefit of an easement of right of way, in respect of a strip of land generally running across the southern-most portion of 2A Castra Place. I will refer to this strip of land as the driveway. 2 In 1999 the parties entered into an agreement about the way in which the driveway might be used. In 2000 a dispute arose concerning this agreement, and Mr. Adams sued Mr. and Mrs. Pongrass, seeking specific performance of the agreement. That litigation was settled, and on 21 February 2002, by consent, the Court made a declaration that the 1999 agreement was in these terms: "4. Between 28 May 1999 and 30 November1999 [Mr. Adams] and [Mr. and Mrs. Pongrass] agreed that [Mr. and Mrs. Pongrass] could and would do or permit the following in relation to the right of way. (i) install a single gate on the eastern end of the right of way with the gate opening into the right of way so that when the gate was open the width of the right of way was reduced to 2.88 metres ("the gate"); (ii) permit [Mr. Adams] to install a hard wired button within 36 Stafford Street to enable [Mr. and Mrs. Pongrass'] gate to be opened and closed electronically by a switch within [Mr. Adams'] property at 36 Stafford Street; (iii) supply [Mr. Adams] with two remote handsets for remote control operation of the gate; (iv) permit [Mr. Adams] to install an intercom station at the entrance near [Mr. and Mrs. Pongrass'] gate on [Mr. and Mrs. Pongrass'] concrete wall to allow visitors to call at [Mr. Adams'] premises; (v) permit [Mr. Adams] to install a combined intercom and mail box on the aforesaid wall if he wished; (vi) permit [Mr. Adams] to install surveillance equipment such as video cameras in the vicinity of [Mr. and Mrs. Pongrass'] gate if [Mr. Adams] so wished; (vii) permit [Mr. Adams] to install 8 pair cabling from the right of way to connect the intercom station to [Mr. Adams'] property; (viii) provide [Mr. Adams] with keys to the gate." 3 Mr. and Mrs. Pongrass installed a gate at the eastern end of the driveway. The gate swung from a post erected at or close to the south-eastern corner of the driveway. The installation of the gate meant that, if Mr. Adams was to use the driveway, he had to be able to operate the gate. Further, if visitors to his property were to be able to gain access to the property from Castra Place, they had to be able to use effectively an intercom speaker, intended to be situated at or near the gate. 4 At the time that the Court made the declaration mentioned, it also made an order for the specific performance of the contract, the subject of the declaration, and the Court also noted the terms of a Deed made between the parties on the same day, 21 February 2002. The Deed provided relevantly: "1. [Mr. and Mrs. Pongrass] will cause to have installed in a proper and workmanlike manner, within 28 days hereof, cabling through a waterproof square plastic conduit adjacent to the southern wall along the right of way from [Mr. Adams'] property to the gate, enabling [Mr. Adams] to operate an intercom system from inside 36 Stafford Street, Double Bay ("his premises") such intercom to be situated and installed in accordance with paragraph 4 hereof. 2. [Mr. and Mrs. Pongrass], at their expense, will use their best endeavours, within fourteen days hereof: (a) to repair and reconstruct a conduit from the eastern boundary of [Mr. Adams'] property, parallel to the right of way and on the northern side of the right of way, which conduit is illustrated as "Conduit 1A" [on an identified plan]; (b) to install hard wiring in the conduit and connect it to the control device on the northern side of the right of way to enable [Mr. Adams] to operate the gate from within 36 Stafford Street, Double Bay. 3. In the event of [Mr. and Mrs. Pongrass] not having repaired and reconstructed conduit 1A within 14 days, [Mr. Adams] shall be at liberty to re-apply to the Court for such orders as may be necessary to give effect to the order for specific performance in the Short Minutes of Consent Orders referred to in paragraph 12 hereof. 4. [Mr. Adams] will be permitted by [Mr. and Mrs. Pongrass] to install, in a proper and workmanlike manner, a stainless steel or aluminium intercom by means of a bracket to the concrete wall adjacent to the gatepost outside the gate on the south eastern corner of he right of way to enable [Mr. Adams] or any person authorised by him to come into his premises, to speak to the occupiers of [Mr. Adams'] premises for the purpose of the gate being opened to enable such persons to enter [Mr. Adams'] premises in accordance with the terms of the right of way. 9. [Mr. Adams] agrees that if [Mr. and Mrs. Pongrass] complete the work in paragraphs 1 and 2 hereof and provide the two remote controls and the keys within the time provided (as to which time is of the essence), he will waive his entitlement to costs and not seek recovery of costs from [Mr. and Mrs. Pongrass]." 5 In the present litigation, Mr. and Mrs. Pongrass seek orders preventing Mr. Adams form enforcing the order for costs that was made in his favour on 21 February 2002. In short, they say that they complied with clauses 1 and 2 of the Deed, and therefore clause 9 operates. 6 On 28 February 2002 Mr. Fotopoulos, an electrician retained on behalf of Mr. and Mrs. Pongrass, carried out some work. Clause 1 of the Deed required a cable to be installed in a waterproof conduit, generally running along the southern boundary line of the driveway, so as to enable the intercom speaker to be connected to 36 Stafford Street, and clause 2 of the Deed required the Pongrass' to use their best endeavours to have installed a separate cable, running generally along the northern boundary line of the driveway, connecting the gate control mechanism to 36 Stafford Street. 7 There is a dispute as to whether what Mr. Fotopoulos did complied with clause 2 of the Deed. I do not need to decide this question, because it seems to me that what was done was not a sufficient compliance with clause 1 of the Deed. Mr. Cortis, an engineer retained on behalf of Mr. Adams, said that the conduit within which there was installed the cable running along the southern boundary line of the driveway was not waterproof. Mr. Fotopoulos did not deny this. 8 The point is a small one, 9 but a significant one. Clause 9 of the Deed provided, not that Mr. Adams would waive his entitlement to costs if Mr. and Mrs. Pongrass substantially complied with clause 1, but rather that he would waive his entitlement if Mr. and Mrs. Pongrass did comply with clause 1. 10 I proceed on the basis that what clause 1 required was limited to what might be described as the straight or almost straight line of conduit running along the line of the southern edge of the driveway, at the base of a wall situated there, excluding the points at the eastern and western ends of that line, where there was a change in the direction in which the conduit and cable ran. On the evidence of Mr. Cortis, the conduit running in a straight line at the base of the wall was not waterproof. I do not think it matters whether there has or has not been an actual ingress of water into the conduit. What the Deed required was that the conduit be waterproof, in the ordinary or dictionary sense. 11 I dismiss the summons with costs. **********