The High Court refused a motion to attach and commit a plaintiff and to sequester the property of Tubber Water Limited, finding that the 2012 settlement did not give an undertaking to the court capable of being enforced as contempt. The court also struck Frank Egan from the proceedings, while expressing serious concerns about his account of how he came to be named as a plaintiff.
The dispute arose from a well on the defendant’s property that had been used by the Tubber group water scheme. In 2009, the plaintiffs alleged that trenching near the pump house damaged a pipe and contributed to a boil water notice. The plaintiffs obtained interim orders to enter the property, pump stagnant water, backfill the trench and repair the chamber. The defendant disputed the plaintiffs’ rights over the land and sought declarations that they had no interest in it or right of way.
In April 2012, the defendant and Tubber Water Limited signed a settlement. It provided for declarations concerning the defendant’s land and the plaintiffs’ lack of a right of way, a temporary continuation of water extraction, its cessation by October 2012, removal of equipment and repair of damage. In May 2012, the court made the two declarations and struck out the matter, with liberty to apply. The settlement was annexed to the order.
The defendant later alleged that the company breached the settlement by drawing water from new wells on nearby land that tapped the same groundwater zone as his well. He relied on hydrologist evidence that pumping from the new well reduced water available in his well. The company largely did not dispute that effect, but argued that the settlement did not prohibit drawing from another source in the same groundwater zone.
Justice Donnelly did not decide whether that activity breached the settlement. She held that neither the settlement nor the 2012 order recorded an undertaking to the court, and that no undertaking could be implied. Because the contempt motion depended on a breach of a court order, she refused the requested attachment and sequestration. The meaning of the settlement’s water provisions remained unresolved.
The court separately considered Egan’s application to be removed as a plaintiff. Egan said he had not known he was named separately and had not joined in the settlement. The judge described that account as highly dubious, noting that Egan had sworn an earlier affidavit identifying himself as the first plaintiff and seeking interim relief. But the defendant had not pursued Egan when the settlement was made, and the court found no real outstanding controversy between them. In the interests of justice, it struck him from the proceedings.