Murrumbidgee Irrigation v M & H Acar [2019] NSWSC 807

Our plaintiff, P, is an irrigation company. It owns pipes.  

One pipe is on D’s property. P is the beneficiary of an easement for it.  

D wanted to develop the site, including putting a driveway over the pipe. P’s engineer assessed the risk of the driveway damaging the pipe to be high: [14].  P demanded that all works cease and received no substantive reply.  

P sought an interlocutory injunction to prevent D performing works on the land. D, essentially, consented.  

The outstanding issue? Costs.  UCPR 42.19 says, usually, a plaintiff who discontinues must pay the defendant’s costs.  

P sought its costs arguing (i) it had no choice but to commence proceedings, (ii) D had acted unreasonably, and (iii) P had been substantially successful: [26].  The Court found it was unreasonable for D not to respond to P’s demand: [58]. 

If D had said it was prepared to change the DA then the costs would have been avoided: [59].  This was so unreasonable as to merit a costs order in P’s favour.