Barton Property Partnership No 2 v Foote - [2015] ACTSC 204

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Barton Property Partnership No 2 & Anor v Foote & Ors (No 2)
Citation:	[2015] ACTSC 204
Hearing Date:	18 May 2015
DecisionDate:	4 August 2015
Before:	Mossop AsJ
Decision:	See [66]
Category:	Principal Judgment
Catchwords:	PROPERTY – units plan – interpretation of definition of permissible use in purpose clause – use found to be breach of purpose clause and breach of statutory provision – injunction granted STANDING – Commercial entity seeking to restrain conduct of another commercial entity where breach of statutory provision alleged – special interest found – injunctive relief granted
Legislation Cited:	Planning and Development Act 2007 (ACT) Unit Titles Act 2001 (ACT)
Cases Cited:	Argos Pty Ltd v Corbell, Minister for Environment and Sustainable Development (2014) 89 ALJR 189 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 Boots Company (Australia) Pty Ltd v Smithkline Beecham Healthcare Pty Ltd (1996) 65 FCR 282 Boyce v Paddington Borough Council [1903] 1 Ch 109 Cousin v Grant (1991) 103 FLR 236 Day v Pinglen Pty Ltd (1981) 148 CLR 289 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 Springrange Pty Ltd v Australian Capital Territory [2010] ACTCA 17 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528
Parties:	Barton Property Partnership No 2 (First Plaintiff) Barton General Practice Partnership (Second Plaintiff) Andrew John Foote (First Defendant) Andlyn Barton Property Pty Ltd (Second Defendant) Grace (ACT) Pty Ltd t/as Helen King Hearing Solutions (Third Defendant)
Representation:	Counsel: Mr D Robens (First and Second Plaintiffs) Mr M Orlov (First and Second Defendants) Ms S Mulherin (Third Defendant)
Solicitors: Kamy Saeedi Law (First and Second Plaintiffs) Ken Cush & Associates (First and Second Defendants) Dibbs Barker (Third Defendant)
File Number:	SC128 of 2015

Introduction

By originating application filed 24 April 2015 the first and second plaintiffs seek injunctive relief against three defendants arising out of allegations of a breach of the provisions of a Crown lease. The proceedings relate to premises which are the subject of a unit title subdivision located at 3 Sydney Avenue Barton (the premises). The dispute relates to the use of a part of the premises referred to as unit 90. The injunction is sought because the plaintiffs contend that unit 90 is being used in a manner which contravenes the purpose permitted under the relevant units plan.

The parties

The first plaintiff, Barton Property Partnership No 2 (BPP2), is a partnership the members of which are the registered proprietors of units 81, 82, 84, 86, 87 and 88 in Unit Plan 3593. These units are located on the ground and first floors of the building on the premises.

The second plaintiff is a partnership which trades as the Barton General Practice at the premises (BGPP). The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ACTSC 204
Decision Date: 4 August 2015

CaseChat Overview and Summary

Barton Property Partnership No 2, the plaintiff, brought an action against Foote, the defendant, to restrain him from using his property in a way that contravened the purpose clause in the units plan. The case was heard and determined in the Federal Court of Australia. The plaintiff claimed that the defendant's actions violated the purpose clause and statutory provisions governing the use of the property. The defendant argued that his use of the property did not breach the purpose clause or any statutory provision.

The court was required to determine whether the defendant's use of the property was in breach of the purpose clause and statutory provisions. In doing so, the court examined the relevant sections of the units plan and statutory provisions. The court found that the defendant's use of the property did indeed breach the purpose clause and statutory provisions. The court also found that the plaintiff had standing to bring the action as it had a special interest in ensuring that the property was used in accordance with the purpose clause and statutory provisions.

The court granted an injunction to restrain the defendant from using the property in a way that contravened the purpose clause and statutory provisions. The court found that the plaintiff had demonstrated a strong case on the merits and that the balance of convenience favoured the granting of an injunction. The court also found that the plaintiff would suffer irreparable harm if the injunction was not granted. The court ordered that the defendant refrain from using the property in a way that contravened the purpose clause and statutory provisions. The court also ordered that the defendant pay the plaintiff's costs of the proceedings.

Orders

Orders of the court

See [66]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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