ANZ Infrastructure Services v Spencer [2007] NSWSC 464

New South Wales Supreme Court

CITATION : ANZ Infrastructure Services v Spencer [2007] NSWSC 464

HEARING DATE(S) : 04/05/07 JUDGMENT OF : Bergin J

EX TEMPORE JUDGMENT DATE : 4 May 2007

DECISION : Specific performance ordered – undertaking given by defendant not to interfere – application for exemplary damages and indemnity costs declined.

CATCHWORDS : [SPECIFIC PERFORMANCE] – Defendant obliged under Deed of Release to allow the plaintiffs to have access to his property to remove wind monitoring equipment – failure to provide access – whether specific performance should be ordered - [EXEMPLARY DAMAGES] – Whether defendant's conduct high-handed or in contumelious disregard of his obligations – [INJUNCTION] – Whether injunction should be granted to restrain interference with removal process – [COSTS] – Whether plaintiffs should be awarded indemnity costs.

ANZ Infrastructure Services Ltd (first plaintiff) PARTIES : Acconia Energy Oceana Pty Ltd (second plaintiff) Peter James Spencer (defendant)

FILE NUMBER(S) : SC 50035/07

COUNSEL : N Kidd (first and second plaintiffs) PJ Spencer (in person)

SOLICITORS : Allens Arthur Robinson (first and second plaintiffs)

- 14 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN

4 MAY 2007

50035/07 ANZ INFRASTRUCTURE SERVICES PTY LIMITED & ANOR v PETER JAMES SPENCER JUDGMENT – EX TEMPORE 1 These are proceedings brought by the plaintiff by way of Commercial List Summons and a Commercial List Statement filed on 16 March 2007. The plaintiffs, ANZ Infrastructure Services and Acciona Energy Oceania Pty Ltd, seek an order for specific performance of the defendant's obligations under clause 10 of the Deed of Settlement entered into by the plaintiffs and the defendant on 10 November 2006. 2 The plaintiffs also seek an order that the defendant forthwith grant the plaintiffs and any of their representatives, or those acting on their behalf, free access to the defendant's property at Saarahnlee, Shannons Flat, Cooma, New South Wales (the Property), for the purposes of removing the monitoring mast and equipment in accordance with the defendant's obligations under clause 10 of the Deed of Settlement. 3 The plaintiffs also seek an order that the defendant be restrained from hindering or otherwise interfering with the removal of the monitoring mast and equipment by the plaintiffs in accordance with clause 10 of Deed of Settlement. Although originally seeking damages for breach of contract in detinue and under s 82 of the Trade Practices Act 1974 for contravention of s 52 of the Trade Practices Act, Mr Kidd of counsel, who appears for the plaintiff today, has indicated that the plaintiffs no longer press for that relief. The plaintiffs do, however, seek exemplary damages and costs. 4 The plaintiffs entered into Heads of Agreement with the defendant on 24 May 2004. Put shortly it was agreed that the plaintiffs would install equipment to monitor the wind on the defendant's Property at Cooma. The detail of the background pursuant to which the Heads of Agreement were entered into is not necessary to recount for the reasons that will become clear.