Aviell Pty Ltd v Shelford Church of England Girls Grammar School
[2010] VSC 230
•28 May 2010
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 2902 of 2010
| AVIELL PTY LTD SUZANNE ESTHER SUSSKIND AVERY JOSEPH DAVID SUSSKIND | Plaintiffs |
| v | |
| SHELFORD CHURCH OF ENGLAND GIRLS GRAMMAR SCHOOL | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2010 | |
DATE OF JUDGMENT: | 28 May 2010 | |
CASE MAY BE CITED AS: | Aviell Pty Ltd & Ors v Shelford Church of England Girls Grammar School | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 230 | |
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INTERLOCUTORY INJUNCTION – Restrictive covenant – Serious question to be tried – Damages not an adequate remedy – Balance of convenience – Interlocutory injunction granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr S.L. Tatarka | Goldhirsch & Shnider |
| For the Defendant | Mr J.J. Gleeson with Mr P.E. O’Farrell | Soho Lawyers |
HIS HONOUR:
On 27 May 2010, Aviell Pty Ltd, Suzanne Esther Susskind and Avery Joseph David Susskind (“the plaintiffs”) applied to this Court for an urgent injunction restraining the defendant, Shelford Church of England Girls Grammar School, from carrying out any construction works (other than the minimum amount of work necessary to make the site safe in the interim) on or upon Lot 34 of Plan of Subdivision 006946, being the land more particularly described in Certificate of Title Volume 04762 Folio 400 (“the land”) within 45 feet (13.716 metres) of the western boundary thereof.
After hearing the parties, I granted an injunction in those terms until 12.00pm today or further order. At the same time, I adjourned the further hearing of the plaintiff’s application to 10.30 this morning. This is the return of that application.
The material discloses that the second and third plaintiffs (Mr and Mrs Susskind) are the registered proprietors of 18 Helenslea Road, North Caulfield (Lot 21 on the relevant Plan of Subdivision). The first plaintiff (Aviell) owns Lot 35 of the Plan of Subdivision (immediately to the east of 18 Helenslea Road). To the south of Aviell’s property is Lot 34 and other land upon which the defendant conducts a private school.
Lot 34 is subject to covenant 1125139 (“the covenant”). In its original form, the covenant prevented the transferee of Lot 34 and his heirs, successors and assigns from erecting or allowing to be erected any building other than one private dwelling with a roof of slate tiles or other material except iron at a cost of not less than £500. The covenant also prohibited the carrying out of quarrying operations on Lot 34.
On 30 August 1967, the defendant applied to modify the covenant. That application was dismissed. However, the Court ordered the covenant to be modified by the addition of a proviso which permitted the erection on Lot 34 of a school assembly hall at a minimum distance of 45 feet from the western boundary of Lot 34 in accordance with certain identified plans.
The plaintiffs’ affidavit material discloses the commencement of construction work on or about 22 May 2010 on Lot 34 and within the 45 foot setback. Steel columns have been erected. The third plaintiff, who claims to have extensive experience in building suspended slabs and the use of the bond deck and similar formwork products, has examined the plans in respect of the work. He has deposed that the plans indicate that the steel columns that are already in place are intended to support a suspended concrete slab upon which will be constructed a number of music studios and rehearsal rooms, and that the proposed construction will see the first floor extension of the current hall come within 3.78 metres (or approximately 12 feet, 4 inches) of the western boundary.
In opposition to the plaintiffs’ application, the defendant relies upon an affidavit of one of its directors, Anne Maree Moon.
In summary, Ms Moon deposes:
(a)The defendant was a recipient of a grant under the School Authority Grant Agreement Primary Schools of 21st Century Round 3.
(b)The defendant engaged appropriate consultants to advise in relation to its proposed development.
(c)The defendant required and obtained consent to the development from the Minister for Planning.
(d)It was unnecessary for the defendant to obtain a planning permit.
(e)The defendant has entered into a building contract at a cost of approximately $1 million.
(f)In order to obtain Ministerial approval, the defendant’s consultants were required to meet all usual guidelines in respect of height and setbacks, and were involved in substantial negotiations with the Department of Planning and Community Development National Building Priorities Project Team – which negotiations involved an ultimate acceptance of existing setbacks from the north side boundary, subject to a five metre setback from the western boundary and a maximum building height of 8.5 metres.
(g)Construction work commenced on 22 May 2010.
There have been various communications between the parties, culminating in a letter of 27 May 2010 in which the defendant states that it does not accept that it is in breach of the covenant - but that even if there is a breach, then any losses could be compensated for by money, whereas the potential damage to the defendant in ceasing works would far exceed those suffered by the plaintiffs. In her affidavit, Ms Moon does not depose to the work being performed not being in breach of the covenant. She requests the Court not grant an injunction on the basis that damages will be an adequate remedy for any detriment (if any) that might be suffered by the plaintiffs. She concludes that the extension of the existing building 40 feet to the west will not seriously impact the plaintiffs’ properties.
Further affidavits were filed this morning (just before Court) on behalf of the defendant, sworn by the principal of the school and a solicitor, Ms Catriona Louise Mahony. These affidavits depose to inconvenience and the possibility of the school being put in breach of a school authority grant agreement dated 21 September 2009 under which some $289,000 has been spent. No doubt the inconvenience and any expense or loss of the kind claimed would be significantly greater if a Court was to order that a completed building built in breach of covenant be demolished.
During the hearing, two further affidavits were filed on behalf of the defendant: first, an affidavit of Mr Robert Brady, the defendant’s business manager, dealing with, amongst other things, previous negotiations with Mr Susskind about the purchase of 7 Hood Crescent; and secondly, a further affidavit from Ms Mahony exhibiting a letter from a town planner, photographs and plans. The letter, photographs and plans exhibited were designed to show what was said to be other breaches of the covenant and the lack of impact the development would have on Lot 21 of the Plan of Subdivision.
In his affidavit, Mr Susskind has sworn that it would be relatively easy to demolish the existing construction and the status quo be re-established. It is to be remembered that the construction work commenced only six days ago on 22 May.
There is undoubtedly a serious question to be tried. The plaintiffs’ claims are not without substance. Indeed, they appear to have real substance. Senior counsel for the defendant conceded there was a serious question to be tried. The issue was, he said, the strength of the case, given the history of the matter as he outlined it and the fact that damages would be an adequate remedy – and more appropriate when one considered the cost and inconvenience to which the defendant would be put if an injunction was granted. I do not accept the proposition that if the plaintiffs establish a breach of covenant, then damages will be an adequate remedy. What has been deposed to is potentially a very significant breach of covenant. The defendant’s position seems to be that damages approaching zero dollars will be an adequate remedy if the plaintiffs establish the breach alleged by them.
Given the early stage at which the works are currently at, in my view, the balance of convenience strongly favours the grant of interlocutory relief until the trial of this proceeding.
Subject to any submission as to the precise form of order, I propose to order (subject to receiving the usual undertaking as to damages):
(1)Until the hearing and determination of this proceeding, the defendant by itself, its servants, agents and contractors be restrained from carrying out any construction works on or upon Lot 34 on Plan of Subdivision 006946, being the land more particularly described in Certificate of Title Volume 04762 Folio 400 within 45 feet of the western boundary thereof other than:
(a) the minimum amount of work necessary to make the site safe in the interim; or
(b) works to demolish such structures as might already have been built or placed on the land.
(2)For the avoidance of doubt, sub-paragraph (a) of paragraph (1) does not permit the pouring of any concrete slab.
I will hear the parties on the question of a speedy trial, further directions and costs.
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