Illawarra Golf Club Pty Ltd v Integral Energy Australia [2009] NSWSC 1317

New South Wales Supreme Court

CITATION : Illawarra Golf Club Pty Ltd v Integral Energy Australia [2009] NSWSC 1317

HEARING DATE(S) : 27 November 2009

JUDGMENT DATE : 27 November 2009

JUDGMENT OF : Harrison J

EX TEMPORE JUDGMENT DATE : 27 November 2009

DECISION : Application for mandatory injunction refused. Costs reserved.

CATCHWORDS : INJUNCTION – where power pole on plaintiff's golf club premises damaged by collision with truck - where defendant disconnected power supply to plaintiff's golf club for safety reasons following the damage - where plaintiff obliged to repair the pole – where defendant refuses to reconnect power until pole repaired - application for mandatory order for restoration of disconnected power - where dispute exists concerning current condition and safety of the damaged pole - where evidence at interlocutory stage inadequate to establish either the existence or the nature of the issue(s) to be tried – where balance of convenience in any event favours refusal of application

CATEGORY : Procedural and other rulings

PARTIES : Illawarra Golf Club Pty Ltd (Plaintiff) Integral Energy Australia (Defendant)

FILE NUMBER(S) : SC 15360 / 2009

SOLICITORS : Plaintiff in person Middletons (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

27 November 2009

15360/2009 Illawarra Golf Club Pty Ltd v Integral Energy Australia

JUDGMENT – EX TEMPORE 1 HIS HONOUR: This is an application by Illawarra Golf Club for a mandatory injunction that the defendant, Integral Energy Australia (incorrectly described as Integral Energy Australia Limited) reconnects the power supply to the Illawarra Golf Club forthwith until further order. Although proceedings have been commenced by notice of motion, it will in due course be necessary for the plaintiff to file either a summons or preferably a statement of claim outlining its cause of action and claiming such further or additional relief as it may be advised. 2 Mr David Hawkins appears today on behalf of the plaintiff and gives personal undertakings that an appropriate initiating process will in due course be filed and that any fee, where applicable to the filing of that document, will be paid by him. The notice of motion is supported by Mr Hawkins' affidavit made today. Briefly the position is as follows. The plaintiff, for relevant purposes, is the proprietor of a golf club. Located upon the golf course are three significant buildings. Between these buildings and the Princes Highway there are 18 power poles on the land from which are suspended cables providing power to the golf club. One of those poles was damaged recently when a prime mover on the golf course property collided with it. The power lines were dislodged although not severed and were ultimately reinstated to the position that they previously occupied by an electrical contractor retained by the plaintiff. 3 There appears to be some considerable history concerning the status of this pole on the plaintiff's property. So much is evidenced by the terms of a letter dated 3 November 2009 from the defendant to the plaintiff. That document is sub-headed "Report of Inspection No 80653 for defective power pole 87 Princes Highway, Helensburgh." The letter is in the following relevant terms: "Integral Energy has written previously requesting you to replace a power pole on your property. To date Integral Energy has not been advised that this work has been carried out.