Koadlow v Park

[2004] VSC 471

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

PRACTICE COURT

No. 8886 of 2004

DAVID KOADLOW and ANOR.	Plaintiffs
v
RICHARD LAWRENCE PARK and ORS.	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 NOVEMBER 2004
DATE OF JUDGMENT:	4 NOVEMBER 2004
CASE MAY BE CITED AS:	KOADLOW & ANOR v PARK & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 471

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Injunction – Application for mandatory injunction on interlocutory basis – Building works – Interim measures to ensure safety of premises – Matter referred to mediation.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. Isles	Salinger & Associates
For the 1st and 2nd Defendants	Mr J.D. Loewenstein	Clements & Co.
For the 3rd Defendant	Mr D. Begg

HIS HONOUR:

1. I have before me an amended summons seeking the following orders:  One, that until the hearing and determination of this matter the defendants be restrained from breaching or breaking down the wall between a proposed cellar below Unit 5 and Unit 13 of the property at 112 Millswyn Street, South Yarra.  The plaintiffs further seek an order that until the hearing and determination of the matter the defendants be restrained from entering into a lease whereby the first and second defendants lease the common property below Unit 5 and adjoining Unit 13 pursuant to a resolution which the defendants say was passed on 11 October 2004.  The plaintiffs further seek an interlocutory injunction requiring the first and second defendants to reinstate the relevant brick wall to Unit 13, together with ancillary orders.

1. It is common ground that the summons was not served until Tuesday this week, which was the Cup Day holiday.  Informal notice of the application was apparently given on the day before.  In the circumstances, the defendants submit, and there is affidavit evidence to support the submission, that they have not had time to fully prepare their response to the application made by the amended summons.  They accordingly seek an adjournment to enable the material upon which they seek to rely to be prepared, served and filed.  They accept, as do the plaintiffs, that the wall in question has now been removed, at least in part, and propose that pending the final determination of the issues between the parties steps be taken to render safe the structure surrounding the wall. 

1. The plaintiffs submit that they are entitled to a mandatory injunction, even given that an adjournment should be granted to the defendants, because the case for such an injunction is so clear that it cannot be resisted.  In my opinion, that submission cannot be sustained.  The court will be reluctant to order a mandatory injunction on an interlocutory basis and will not do so except in the most extreme circumstances.  It seems to me that those circumstances do not obtain here.  It is doubtless necessary that something be done, given that there is at present a gap where a wall once existed, with structures above that gap.  Interim measures in those circumstances will, it seems to me, very likely need to be taken to preserve the structures surrounding the former wall, but such preservation must be done so as not to prejudice the outcome of the present proceedings. 

1. Proposed minutes of orders have been handed to me on behalf of the first and second defendants.  In my opinion those minutes reflect appropriately the orders which in the circumstances should be made.  They include an order that the proceeding be referred to mediation.  While not opposing mediation, the plaintiffs submit that it should take place only on the basis that the gap in the wall be repaired, with the remaining issues to be the sole issues before the mediator.  In my opinion that would be an unsatisfactory basis upon which to go to mediation.  It is a fundamental proposition of justice that all parties to a dispute be given an opportunity properly to put their case.  That cannot be done if the court or the mediator, before hearing full argument on the point, takes steps which are predicated upon the acceptance of the position of one side only, that is, that there is no basis upon which the defendants can properly resist the restoration of the former wall.  I am simply not in a position to come to any conclusion, interim or otherwise, on the merits of the plaintiffs' position, or indeed the merits of the defendants' position.  In those circumstances I should not circumscribe the scope of the mediation, but rather I should urge all parties to attend upon the mediator with open minds and on the basis that all issues will be honestly and earnestly discussed at the mediation with a view to settlement of all the issues. 

1. The minutes of orders handed to me by Mr Loewenstein provide for the usual undertakings being given by the plaintiffs as to damages and provide for undertakings to be given by the first and second defendants which, as I apprehend it, will ensure that the plaintiffs' position is not compromised, while at the same time the structures surrounding the former wall are appropriately preserved against the danger that the present gap will cause structural problems. 

Do you give those undertakings, Mr Loewenstein?

MR LOEWENSTEIN:  I do, Your Honour.

HIS HONOUR:  Those undertakings of course include an undertaking in relation to the proposed lease.  That will not be entered into.  I understand from counsel for the body corporate that he accepts that position.

1. Those undertakings having been given, I will order that the proceeding be referred to mediation forthwith, such mediation to be concluded no later than Friday 26 November 2004, and that the mediator report the outcome of the mediation to the court by 4 p.m. on Tuesday 30 November 2004. 

1. In the event of the mediation not resolving the proceeding, the matter will be listed for directions before the Listing Master on the first available date in December 2004.  That, as I understand it, is a reference to the date on which it will be listed before the Listing Master.  The summons will otherwise be adjourned sine die with liberty to apply to all parties on the giving of 72 hours' notice to any opposite party.  I will reserve the costs of this day.

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