Committee of the Trangie Nevertire Irrigation Scheme v Smith [2013] NSWSC 128

Supreme Court New South Wales

Medium Neutral Citation: Committee of the Trangie Nevertire Irrigation Scheme v Smith [2013] NSWSC 128 Hearing dates: 11/02/2013 and 12/02/2013 Decision date: 13 February 2013 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Plaintiffs entitled to injunctions sought; to bring in draft orders. Catchwords: CONTRACTS - interpretation - whether the construction of a new pipeline and the lining of existing water channels constituted the "implementation, maintenance and administration" of the existing irrigation scheme - whether approval obtained from the members for the works - members informally but effectively approved and ratified the subject works - whether easement over a portion of the defendant's land should be granted - grant of an easement reasonable in the circumstances Legislation Cited: The Co-Operatives Act 1992 (NSW) Category: Principal judgment Parties: The Committee of the Trangie Nevertire Irrigation Scheme (First Plaintiff) Trangie Nevertire Co-operative Limited (Second Plaintiff) John Rodney Smith (First Defendant) Thornton Pastoral Co Pty Limited (Second Defendant) Representation: Counsel: R J Weber SC / B Le Plastrier (Plaintiffs) J M Ireland QC (Defendants) Solicitors: Lovett & Green Pty Ltd (Plaintiffs) McGirr Lawyers (Defendants) File Number(s): 2013/3201

Judgment (EX TEMPORE - REVISED 18 FEBRUARY 2013) 1HIS HONOUR: The first plaintiffs are the Executive Committee of an unincorporated Association known as the Trangie Nevertire Irrigation Scheme (the Association). As its name suggests, the Association maintains and operates an irrigation scheme, drawing water from the Macquarie River (the Scheme). 2The second plaintiff (the Co-operative) is an incorporated body which is said to be the alter ego and agent of the Association for various purposes. 3The defendants are land holders in the Trangie area and members of the Association. 4The plaintiffs say that they are entitled to have access to the defendants' land to carry out substantial upgrading works for the Scheme, where it crosses the defendants' land. The plaintiffs say, further, that the defendants are bound to grant easements over their lands, to allow the Co-operative to maintain and repair the irrigation works. 5The plaintiffs base their claim on a Deed made on 5 May 1970. The defendants acknowledge that they are bound by the terms of the Deed, properly construed. They say, however, that on its proper construction and in the events that have happened, the plaintiffs do not have the asserted rights.