Gatecall Pty Ltd v Beluga Developments Pty Ltd

[2005] VSC 263

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6310 of 2005

GATECALL PTY LTD	Plaintiff
v
BELUGA DEVELOPMENTS PTY LTD & ORS	Defendants

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2005
DATE OF JUDGMENT:	28 June 2005
CASE MAY BE CITED AS:	Gatecall Pty Ltd v Beluga Developments Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 263

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PRACTICE COURT – variation of injunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Goldblatt	Consult Solicitors
For the Defendants	Mr Wikrama SC	Spigler and Schwarcz

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HIS HONOUR:

JUDGMENT

1. By summons on originating motion filed  31 March 2005, the plaintiff, Gatecall Pty Ltd, sought an Order that it be permitted a right of entry to premises at 601 Little Collins Street, Melbourne, for the purpose of accessing its storage units in respect of 39 such units, the subject of the proceeding;  and an Order restraining the defendants, Beluga Developments Pty Ltd, and Mr Baranoff and Bar Vim Storage Pty Ltd from restricting the plaintiff or its lessees or prospective lessees from such access.  An originating motion seeking the same relief was filed on the same day. 

1. It is unnecessary to refer in detail in this judgment to the affidavit material in support of the summons in the initial phase, being an affidavit of Mr N.P. Bell, director of the plaintiff of 30 May 2005, and of Mr D.J. Hirsch, solicitor, of 1 June 2005, on behalf of the plaintiff.

1. The matter came on before Osborn J on 3 June 2005 and upon the usual undertaking, His Honour ordered that the summons be adjourned to 22 June 2005.  Apart from the usual undertaking, however, there was a further undertaking which was as follows:

“Upon the Defendants through their Counsel undertaking not to restrain the Plaintiff from having access to each one of the 38 units belonging to the Plaintiff over the common property relating to each and every one of the 38 lots on condition:

1.such access will be granted to it during normal working hours between 9am and 5pm on each and every weekday

2.the Plaintiff will give the Third Defendant 24 hours notice prior to the grant of such access.”

1. Learned counsel who appeared before me, Mr Goldblatt for the plaintiff and Mr Wikrama S.C. for the defendants, appeared before Osborn J on the application, and I have read His Honour's short ruling upon the matter as well.

1. Then on 20 June 2005 by consent the matter was adjourned over to today and the matter has come on before me.

1. The short point at issue is the sought-for removal of the second previously undertaken condition, that is that the plaintiff will give the third defendant 24 hours' notice prior to any access.  In respect of that discrete matter, I have before me an affidavit of Mr S. Spigler, solicitor for the defendants, affirmed 15 June 2005, in which affidavit, in language which appears to me to be extreme and in imagery likewise extreme, he deposes:

“If each and every one of the proprietors of the 800 storage units decided to access the units at the same time, not only would there have been pandemonium there would have been chaos.  There would have been several hundred trucks parked in Little Collins Street trying to access the premises.”

That appears in paragraph 19.  The expression “unmitigated chaos” also appears in paragraph 6(a) of the affidavit. 

1. In reply, Mr N.P. Bell, in his 22 June 2005 affidavit, set forth in paragraph 7 his response to that purported analysis and those expressions.  It is unnecessary for me to rehearse his response other than to say he has set forth a factual matter which, on its face, answers to a substantial degree the language and imagery I have previously cited of the solicitor for the defendants.  Further, Mr Bell has deposed in that paragraph that the consequence, effectively, of the 24 hour notice requirement is that there is not an access facility but rather, a warehouse facility.  Various exhibits were tendered with that affidavit to that end, but it does not need such material to articulate the difference between access facility on the one hand, and warehouse facility on the other.

1. I consider on the material before me it is proper and appropriate to remove the requirement of 24 hour notice.  The plaintiff already has less access than normal by reason of the nine to five requirement.  The matter is to be adjourned for another month at the behest of the defendants and I consider in all the circumstances the second requirement ought be removed and I remove it.

1. Accordingly, I have signed the Orders sought:  that the defendants are enjoined from restricting the plaintiff having access to the relevant premises.