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.
