Mangrove Mountain Quarries Pty. Limited v. Barlow & Anor. [2007] NSWCA 132

New South Wales Court of Appeal

CITATION: Mangrove Mountain Quarries Pty. Limited v. Barlow & Anor. [2007] NSWCA 132

HEARING DATE(S): 4 June 2007 JUDGMENT OF: Hodgson JA at 1

EX TEMPORE JUDGMENT DATE: 4 June 2007

DECISION: Orders made in accordance with Short Minutes of Order initialled and dated, and placed with the Court file.

CATCHWORDS: PRACTICE - Appeal - Interlocutory relief - Appropriate conditions.

Mangrove Mountain Quarries Pty. Limited - appellant PARTIES: Ross Lloyd Barlow - 1st respondent Heather June Barlow - 2nd respondent

FILE NUMBER(S): CA 40332/07

COUNSEL: Mr. R. McHugh SC with Mr. B. Kremer for appellant Mr. M. Aldridge QC with Mr. A. Coleman for respondent

SOLICITORS: Brischetto & Ford, North Turramurra for appellant CBD Law, Gosford for respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 4885/06

LOWER COURT JUDICIAL OFFICER: Windeyer J

LOWER COURT DATE OF DECISION: 17 May 2007

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 492

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40332/07

HODGSON JA

Monday 4 June 2007 MANGROVE MOUNTAIN QUARRIES PTY. LTD. V. BARLOW & ANOR. Judgment 1 HODGSON JA: I am dealing with an application to stay orders made by Justice Windeyer on 17 May 2007 and for an order restraining the respondents from interfering with the appellant's use of a quarry property, and also for expedition of the appeal. 2 Having regard, among other things, to the term of the licence, I think it is appropriate to expedite the appeal, and there is no opposition to that. 3 I think it is also appropriate to stay the orders and to protect the quarry operations, subject to conditions. 4 The main contest before me has been as to the conditions. Matters not included in the conditions offered by the appellant are the construction of a bore which was required to be done by February this year, and also the extension of the sealing of the access road to the wheel-washing facility. 5 Mr. McHugh has indicated that his client is prepared now to undertake to the Court to do those things within twenty-eight days, and in my view it is appropriate that that be made a condition of the grant of the relief that is sought. 6 The other main area of dispute has concerned what should be done about rehabilitation. The Council consent under which the quarrying operations have been carried on requires rehabilitation to be carried out progressively to achieve a situation where only two hectares of quarry is open at any time. That was a result that was to be achieved by about August 2007. It appears from the evidence that there has been little progress towards that since February 2006 when the condition was imposed. 7 There is some contest on the construction of the licence agreement as to who should bear the costs of this rehabilitation, to the extent that it is required by work that was done before the appellant took over the quarry. Mr. Aldridge for the respondents submits that it is entirely the appellant's responsibility, relying on cl.5 of the licence. Mr. McHugh for the appellant submits that, under cl.15 of the licence, the ultimate cost falls on the respondents insofar as it is necessitated by the state of the quarry when the appellant took it over. 8 It is not possible for me to resolve that contest, but I think it is appropriate, as a reasonable price of obtaining the relief sought, that the appellant pay into a fund to abide the decision of the Court as to the question of whether the licence has been terminated and, to the extent that it is necessary, who is responsible for rehabilitation, a sum of $5,000.00 for each month that the operations continue, with the first payment to be made within seven days. 9 I think a fair reflection of the success of each party on this application would be to make the costs of this application costs in the appeal. [Discussion ensued] 10 The Court makes the orders that have been formulated and I will confirm them by initialling the document when it comes to Chambers. **********