Koller v Rice
[2011] VSC 346
•1 August 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 04273 of 2010
IN THE MATTER OF AN APPLICATION PURSUANT TO S 84 OF THE PROPERTY LAW ACT TO DISCHARGE OR VARY A RESTRICTIVE COVENANT
| SABINA MICHAELA KOLLER | Plaintiff |
| v | |
| ROBERT ERIC RICE | Defendant |
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JUDGE: | DIXON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2011 | |
DATE OF JUDGMENT: | 1 August 2011 | |
CASE MAY BE CITED AS: | Koller v Rice | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 346 | |
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Real Property – restrictive covenant – modification or discharge – single dwelling on lot – whether plaintiff established circumstances enlivening power under the second limb of s 84(1)(a), Property Law Act 1958, or circumstances enlivening power under s 84(1)(c) – form of modification – Property Law Act 1958 (Vic) s 84(1) – Planning and Environment Act1987 (Vic) s 60(2)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M R Simon | Chadwicks The Law Firm |
| For the Defendant | In person |
HIS HONOUR:
The Application
This is an application to discharge or vary a restrictive covenant. One restriction created by the covenant is a single dwelling restriction. The plaintiff has since about August 2003 been the owner of a property at 312 Morris Road, Hoppers Crossing, having purchased it as a vacant block. It is a corner block with frontage to Kingston Boulevard. The plaintiff erected a dwelling on the lot. The defendant is the plaintiff’s neighbour, residing at 310 Morris Road, immediately to the south of the plaintiff. The defendant purchased his property, which was developed with a dwelling, in December 2002.
The plaintiff desires to erect a second dwelling on her lot and, to that end, seeks the discharge or modification of the covenant. The court has power to act under s 84 of the Property Law Act 1958 (Vic). For the reasons which follow, I will modify the covenant.
The Evidence
Each property is a lot on registered plan of subdivision PS326075A. The plan was registered on 17 March 1994. Known as Kingston Gardens Estate, this subdivision of 19 lots (originally) and 1.531ha was a stage of a larger development. 312 Morris Road, which is lot 1368, has been burdened since 27 August 2001 with a restrictive covenant lodged under dealing number X697324K, an instrument of transfer. It is the land described in certificate of title Volume 10160 Folio 359. 310 Morris Road, which is lot 1367, is equally burdened.
The covenant is, relevantly, in these terms:
(a) that [the covenantor] will … not erect or build … more than one private dwelling house (together with usual outbuildings) … and such dwelling house and such outbuildings shall not be erected of any material other than brick, stone, concrete or brick veneer with a roof of tile, slate or colourbond material;
(b) that such dwelling house shall not have a living floor area … of less than 115 square metres …
The issue primarily concerns the restriction permitting only one private dwelling house per lot.
On 18 August 2010, Mukhtar AsJ directed advertising of this application in The Age, and a local newspaper, and notice by pre-paid post to all rated occupiers, registered proprietors or mortgagees and caveators in respect of the 19 lots comprising the subdivision. Compliance with this order was verified by affidavit. Mr Rice is the only contradictor to this application.
The plaintiff’s land is in a relatively new residential subdivision and the surrounding residential developments are mainly single-story but with a significant proportion of double-story development. The plaintiff built on the land a double-story home. It takes advantage of the corner aspect and is located at the western end of the lot, close to Morris Road, leaving a large area of garden at the eastern end of the lot. Car access is from Kingston Boulevard. The home has sheer double-story walls, that is, without upper level set back, and it shades the residence at 310 Morris Road to some degree. Mr Rice asserted that the existing dwelling was so located to enable the proposed subdivision.
In 2006, application was made to Wyndham City Council for a permit to enable the plaintiff to subdivide the lot and develop a new residential dwelling on the eastern end. It was asserted that the restrictive covenant, although in place only five years, was obsolete. Council was invited to act under s 60(2) of the Planning and Environment Act 1987. There was an objector and Council refused the permit. That decision was affirmed on review by VCAT, which considered that the plaintiff had not satisfied it that the objector, the owner of land benefited by the restriction, would be unlikely to suffer loss of amenity or loss arising from change to the character of the neighbourhood.
The evidence of the parties suggested that there were three lots within the subdivision which have two dwellings on each lot. These were lots 1369, 1375 and 1376. Presumably, the covenant has been removed or modified on these lots. Although the evidence of service established that lot 1369 had been subdivided into two lots by a registered plan of subdivision, PS510152H, it is not possible to reach any conclusion in respect of lots 1375 and 1376. It is possible, I cannot say, that the development of these lots in the manner now seen was consequent upon approval under cl 55 of the Wyndham Planning Scheme, to which I will later refer.
It was asserted in the plaintiff’s evidence that around eight to ten lots in the subdivision, including these three lots, have “a second building”, the presence in the general area of lots with two dwellings and of double-story residences demonstrates that the restrictive covenant is obsolete, and that there has been a cultural change in the neighbourhood. Although there was no cross-examination on the affidavits filed, I consider that the plaintiff’s evidence is exaggerated, reflecting that the assessment of a number of these matters is best left to persons with planning expertise. I will not make any findings based upon her affidavit. The plaintiff, plainly, seeks to profit financially from the development of a second residence on that part of her lot which she does not need to use.
Mr Rice also swore an affidavit. He was not cross-examined. The substance of his concerns appears to be:
·He purchased his property in the knowledge that the vacant block next door [the plaintiff’s land] would be used for the construction of a single dwelling, as indicated by the restrictive covenant. He and his wife wanted to live in a neighbourhood of homes, not dual occupancies, town houses or units.
·The neighbourhood of the subdivision has not changed since he moved in. The only new development was the construction of the plaintiff’s home.
·The plaintiff’s assertion that lifting the covenant will add to the diversity of housing stock in the area is misconceived. It will only add another large dwelling to the existing lot.
·He perceives that financial loss will result, from a diminution in value, following on the detrimental visual impact. There will also be a loss of privacy.
Counsel for the plaintiff, Mr Simon, objected, and I agree, that Mr Rice could not assert a loss from a diminution in value without expert valuation evidence. He also contended that privacy and like issues were town planning matters and Mr Rice’s rights in that context could be adequately asserted, and protected, in the planning and permit processes.
Evidence was also tendered from a Town Planner, Annemarie Spinks. She prepared a town planning assessment of the proposal to remove the covenant, by a report dated November 2010. Ms Spinks is appropriately qualified, being a certified Practising Planner and a member of the Planning Institute of Australia. She has been employed in town planning in the western suburbs of greater Melbourne since 1982, including as a consultant town planner since 2002. Ms Spinks’ report is based on an inspection of the subject site and its environs, a review of the Wyndham Planning Scheme and the applicable legislation, and review of the title, the covenant and the indicative plans for the proposed second dwelling on the site. The indicative plans were in evidence.
Ms Spinks opinion, which was not challenged, is predominately directed to town planning issues and, in summary, is as follows:
·The proposal is consistent with the statutory and strategic framework of Wyndham Planning Scheme. The development of a second dwelling on the site is appropriate for the site and surrounding area and would generally be able to meet the requirements of cl 55 of the planning scheme.
·Building and works for a second dwelling on the site would be little different in size and scale than a large dwelling extension or construction of outbuildings. The title restriction does not limit the extension of development on the site. The buildings and works for a second dwelling, compared to one large dwelling, would have no amenity impact on the neighbourhood or adjoining neighbours. The removal of the covenant would therefore have no detrimental impact on the neighbourhood or beneficiaries of the covenant.
·The neighbourhood has changed significantly within a relatively short period of less than 10 years. The covenant is obsolete as a result of both changes to neighbourhood character and strategic planning policy.
The State Planning Policy framework encourages development within the existing urban fabric to take full advantage of transport facilities, infrastructure and community facilities. State planning policy encourages higher average overall densities of development in the growth areas. Wyndham City Council is a designated growth area and a specified focus for the future growth of Melbourne.
Ms Spinks observes that the creation of the restrictive covenant in 2001 occurred a little over 12 months prior to the release of Melbourne 2030,[1] an important reference document in State Planning Policy which outlines the principles for managing Melbourne’s urban growth. That report identified the disparity between population growth and available housing in Melbourne. The subdivision was approved in 1994, well before implementation of a lot yield policy of 15 lots per hectare, now forming part of the Wyndham Planning Scheme and implementing State Planning Policy framework. Ms Spinks considers that, under the present planning regime, it would not likely now be approved. She refers to the identified need to provide, within a subdivision, for a range of housing options for families, couples and sole occupants, coupled with large allotments and the lack of diversity in lot size of this subdivision. For this reason, it is her opinion that the subdivision no longer represents a reasonable and proper use of the land during this current period of unanticipated population growth and housing shortages.
[1]Department of Sustainability and Environment, 2002.
Ms Spinks expresses her opinion that the development of a second dwelling on the lot would require planning permission, in particular that the requirements of cl 55 of the Wyndham Planning Scheme would need to be met. The bulk of such re-development, although in breach of the covenant in terms of being more than one dwelling, would otherwise be consistent with it. Technically, the current dwelling on the site could be extended to cover most of the current allotment without planning permission. Observing that the covenant specifies a minimum dwelling size and anticipates large dwellings, the intention of the covenant is, in her view, to encourage large dwellings. Most dwellings within the subdivision have significantly large footprints.
This intention is evidenced from the language of the covenant, as much in what it does not say as in what it does. There is no limitation on building coverage, site permeability or plot ratio, and no specified building envelope. Ms Spinks also observes that the covenant does not impose minimum setbacks nor does it make any attempt to preserve large open areas of private open space. It does not require any specific landscaping theme or require the planting of canopy trees. There is no limit on dwelling height nor any reference to the scale of dwellings anticipated by the covenant, other than a requirement for dwellings larger than 115 square metres, exclusive of garages.
The reasonable expectations of beneficiaries of the covenant could not therefore include large open backyards with significant areas of landscaping for the planting of canopy trees or the ability to maintain sky views. The covenant does not include any restrictions to ensure these features become part of the neighbourhood of the beneficiaries of the covenant and are not a reasonable expectation or a practical benefit of the covenant.
Ms Spinks identifies that within 400 metres of the subject land there are 14 examples of small-lot subdivisions, including corner lot subdivisions. Although only two of these examples are within the same plan of subdivision as the plaintiff’s lot, I consider this observation is not insignificant, and may be taken into account, as I will later explain.
The plaintiff’s contentions
Mr Simon did not, notwithstanding the view expressed by Ms Spinks, put the application on the basis of obsolescence, the first limb of s 84(1)(a). He was content to proceed firstly on the basis of the second limb of s 84(1)(a): the continued existence of the restriction will, unless modified, impede the reasonable user of the land without securing practical benefits to other persons. Secondly, Mr Simon relied on s 84(1)(c): the proposed discharge or modification will not substantially injure the persons entitled to the benefit of the restriction.
From the evidence of Ms Spinks, Mr Simon contended I might conclude that constructing a second dwelling on the land would be a reasonable use, and no practical benefit to other persons is secured by impeding that use. I could, he submitted, reach this conclusion by noting first that when the plaintiff purchased her property, there were already three lots within the subdivision that had obtained permission to build two dwellings on the one title, and this was a matter which would have been evident to Mr Rice. Mr Simon also submitted that the plaintiff’s application carried the same safeguards as were identified to be appropriate by Morris J in Stanhill Pty Ltd v Jackson and Ors.[2] Mr Simon submitted, by reference to Ms Spinks’ evidence, that as the plaintiff could satisfy all of the requirements which might reasonably be made under the Wyndham Planning Scheme in seeking a permit for the development, the construction of the second dwelling, in the absence of the covenant, would be a reasonable use of the land.
[2][2005] 12 VR 224, [71].
Mr Simon submitted that Mr Rice’s perceptions that he might suffer financial loss were unproven. His perception that he would suffer a loss of privacy was not evidence of harm of any real significance or importance. Mr Simon contended, in any event, that as the proposed development could only proceed subject to planning controls, the court should proceed on the probability that the development will comply with the planning scheme. Thus, there would be no basis to suppose any significant detrimental impact of that kind on Mr Rice.
Mr Simon submitted that the covenant served no reasonable purpose for Mr Rice. Practical benefits to Mr Rice from the covenant were not achieved by the restrictions in the covenant, as Ms Spinks’ evidence demonstrates. That this is so is illustrated by the opportunity for the plaintiff, should she desire to do so, to construct a substantial extension, a swimming pool or a substantial outbuilding upon her land without breaching the covenant and without planning approval. Furthermore, modification of the covenant was not the ‘thin edge of the wedge’ having regard to the number of small lot subdivisions that had occurred within 400 metres of the property, notwithstanding that most of the subdivisions were of lots that were not from the same plan of subdivision as the plaintiff’s lot. For like reasons, Mr Simon submitted that relaxing the restriction imposed by the covenant will not substantially injure Mr Rice, or more correctly, beneficiaries of the covenant.
The legal framework
Section 84(1) of the Property Law Act 1958 (Vic) provides:
84.Power for Court to modify etc. restrictive covenants affecting land
(1)The Court shall have power from time to time on the application of any person interested in any land affected by any restriction arising under covenant or otherwise as to the user thereof or the building thereon by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) upon being satisfied-
(a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Court deems material the restriction ought to be deemed obsolete or that the continued existence thereof would impede the reasonable user of the land without securing practical benefits to other persons or (as the case may be) would unless modified so impede such user; or
(b)that the persons of full age and capacity for the time being or from time to time entitled to the benefit of the restriction whether in respect of estates in fee-simple or any lesser estates or interests in the property to which the benefit of the restriction is annexed have agreed either expressly or by implication by their acts or omissions to the same being discharged or modified; or
(c)that the proposed discharge or modification will not substantially injure the persons entitled to the benefit of the restriction:
Provided that no compensation shall be payable in respect of the discharge or modification of a restriction by reason of any advantage thereby accruing to the owner of the land affected by the restriction unless the person entitled to the benefit of the restriction also suffers loss in consequence of the discharge or modification nor shall any compensation be payable in excess of such loss; but this provision shall not affect any right to compensation where the person claiming the compensation proves that by reason of the imposition of the restriction the amount of consideration paid for the acquisition of the land was reduced.
The plaintiff carries the onus of proof to satisfy me that an order should be made[3] and relief is discretionary even if a ground of entitlement is established[4].
[3]Re Robinson [1972] VR 278, 285; Re Stani, Full Court of the Supreme Court of Victoria, unreported, 7.12.1976, 7.
[4]Re Markin; Re Roberts [1966] VR 494, 496.
In addition to the jurisdiction created by s 84(1), 1991 amendments to the Planning and Environment Act1987 and the Subdivision Act1988, provide alternative avenues whereby a restriction might be varied or removed. As I have noted, the plaintiff has tried, and failed, to remove or modify the covenant on an earlier occasion. This earlier attempt was not based on the evidence of a town planning consultant. The authorities establish that town planning principles are not to be taken into account in determining an application under s 84(1) and this position remains despite these alternative statutory avenues for removal or variation of a restriction. The statutory alternatives require factors to be taken into account, which will call planning principles into play and which, although liable to overlap, differ from those considered by a court under s 84(1).[5] Planning principles may be relevant to the exercise of the residual discretion under s 84(1).[6]
[5]Greenwood & Anor v Burrows & Ors (1992) V ConvR ¶54-444.
[6]Bevilacqua v Merakovsky [2005] VSC 235, [22].
The principles to be applied on applications under s 84(1) appear settled.[7] Most recently, the authorities were surveyed by Kyrou J in Vrakas & Anor v Registrar of Titles & Ors. Omitting citations, his Honour summarised the principles that govern an application to discharge or modify a restrictive covenant under s 84 in these terms:
[7]Ibid [23]-[24]; see also Stanhill Pty Ltd v Jackson & Ors [2005] 12 VR 224; Re Milbex Pty Ltd [2006] VSC 298; Dissanayake & Anor v Hillman & Ors [2007] VSC 426; Fraser v Di Paolo [2008] VSC 117; Vrakas & Anor v Registrar of Titles & Ors [2008] VSC 281.
[28]In relation to the second limb of s 84(1)(a), to establish that a covenant would impede the reasonable user of the land, it must be shown that “the continuance of the unmodified covenants hinders, to a real, sensible degree, the land being reasonably used, having due regard to the situation it occupies, to the surrounding property, and to the purpose of the covenants”. Whether this is so is essentially a question of fact.
[29]It is not sufficient merely to show that the continued existence of the covenant would impede a particular reasonable use which is proposed by the applicant. The applicant must show that the restriction will impede all reasonable uses.
[30]“Practical benefits” within the meaning of the second limb of s 84(1)(a) are any real benefits to a person entitled to the benefit of a restrictive covenant and are not limited to the sale value of the land benefited by the covenant.
[31]It must be established that the covenant is not necessary for any reasonable purpose of the person who is enjoying the benefit of it.
[32]If a relaxation of the restriction imposed by a covenant would be likely to lead to further applications of a similar nature, resulting in a detrimental change to a whole area, this “precedential” effect may be relevant in determining whether the restriction secures any practical benefits.
[33]Whether there are any practical benefits to other persons is a question of fact.
[34]In relation to s 84(1)(c), the test for whether a discharge or modification of a covenant would “substantially injure” a person entitled to the benefit of the covenant is similar to that in relation to “practical benefits” in the second limb of s 84(1)(a).
[35]Section 84(1)(c) requires a comparison between the benefits initially intended to be conferred and actually conferred by the covenant, and the benefits, if any, which would remain after the covenant has been discharged or modified – if the evidence establishes that the difference between the two (that is, the injury, if any) will not be substantial, the ground in s 84(1)(c) is made out.
[36]The injury must not be unsubstantial, and must be real and not a fanciful detriment.
[37]It is not enough for the applicant merely to prove that there will be no appreciable injury or depreciation in value of the property to which the covenant is annexed.
[38]A lack of specific plans makes it more difficult for an applicant to show that there will be no substantial injury to persons entitled to the benefit of a covenant.
[39]The prospect that, if the application for the discharge or modification of a covenant were granted, that might be used to support further applications in a similar vein, may be relevant. Such “precedent value” may, in an appropriate case, of itself be a factor demonstrating that an applicant fails to establish the requirements in s 84(1)(c).
[40]Whether a person entitled to the benefit of the covenant would be substantially injured within the meaning of s 84(1)(c) is a question of fact.
[41]Town planning principles and considerations are not relevant to the Court’s consideration of whether an applicant has established a ground under s 84(1).
[42]The applicant has the onus of establishing the matters set out in a limb of s 84(1)(a), or in s 84(1)(c), upon which he or she relies. In relation to s 84(1)(c), this means that the applicant must effectively prove a negative.
[43]The absence of objectors to the discharge or modification of a covenant will not, in itself, necessarily satisfy the onus of proof.
[44] Each case must be decided on its own facts.
[45]Even if the matters set out in a limb of s 84(1)(a), or in s 84(1)(c), are proved by the applicant, the Court has a discretion to refuse the application.
[46]Town planning principles and considerations may be relevant to the exercise of the Court’s residual discretion. “Precedential” issues similar to those discussed above may also be relevant in the exercise of that discretion.
Resolution of the application
Although the evidence of Ms Spinks was that the covenant was obsolete, Mr Simon did not put the application on that basis and I will not deem obsolete the restrictions imposed by the covenant. I am not satisfied that the plaintiff has established, by the evidence, the circumstances set out in the second limb of s 84(1)(a). I am, however, satisfied that the plaintiff has established the circumstances set out in s 84(1)(c) to a point at which I am prepared to exercise my residual discretion to make an order modifying the covenant. No order for compensation was sought and none should be made.
The plaintiff fails to establish the second limb of s 84(1)(a) because all it has shown is that by reference to planning considerations, the construction of a second dwelling on the lot would be a reasonable use of the land. That is a particular reasonable use, one which the plaintiff, for personal profit, proposes. It is not the only use. The plaintiff has not shown that the restriction impedes all reasonable uses of the land. Notwithstanding the existence of the covenant, the land is presently, and will continue to be, reasonably used. Ms Spinks’ opinion that the subdivision no longer represents a reasonable and proper use of the land during this current period of unanticipated population growth and housing shortages, is not to the point.
I am satisfied that the proposed modification of the covenant will not substantially injure the persons entitled to the benefit of the restriction, including Mr Rice. I agree with observations made by Morris J in Stanhill[8] that the language used in s 84(1)(c) does not require a case to be made that the proposed discharge or modification of a restriction will not harm the persons entitled to the benefit of the restriction. The evident policy of the section, as the whole of his Honour’s reasons demonstrate, is to confer on the court ample power to avoid the use of land being unnecessarily constrained. It is sufficient to show that the proposed discharge or modification will not cause harm, which could be regarded as being of real significance or importance, to the persons entitled to the benefit of the restriction. This is a question of fact in the particular circumstances being considered; it does not admit some universal answer based upon the attitude of the beneficiary, the original purpose of the covenant or any other similar factor.
[8]Op cit [37]-[38].
Having regard to Ms Spinks’ evidence concerning small two-lot subdivisions within 400 metres of the plaintiff’s land, I consider there would not be any significant ‘precedential’ effect from the modification I propose. This is relevant in determining whether modifying the covenant restriction might cause a substantial injury. The modification in this instance could only, at the highest, be of precedent value given the extent of its contribution to the existing “precedent” to which reference has been made.
In undertaking a comparison between the benefits initially intended to be and actually conferred by the covenant and the benefits, if any, which would remain after the covenant has been modified, I accept the evidence of Ms Spinks. Leaving aside the issue of the materials used in construction, which is not presently relevant, the intention of the covenant appears to be to ensure single, large dwellings are constructed on the land. That intention is not to preserve large private open space areas or space around buildings. Had that been intended, other controls or restrictions would be found in the covenant.
The distinction between the size and configuration of the form of a single building, observing the restrictions of covenant, compared with that the size and configuration of the form of two dwellings, if allowed, is negligible. The restrictive covenant impedes the use of the land for more than one dwelling but in practical terms does not limit the building footprint for a single dwelling. A permitted single dwelling could, in compliance with planning laws, be larger in form, bulk and plot coverage than two dwellings on the lot. While observing the restrictive covenant, the plaintiff’s land could be further developed with building extensions and/or other works that would be similar in form to a second dwelling.
For these reasons, I consider that the difference between the benefits intended to be conferred by the covenant, and the benefits which would remain after the covenant has been modified, will not be substantial. The detriments identified by Mr Rice are matters of his personal perception. With appropriate permissions obtained, all of the perceptions of Mr Rice can be appropriately managed to avoid detriment by reference to planning considerations. Notwithstanding the interlocutory directions for advertising and notice, no other resident or landowner within the subdivision has expressed any objection. While that fact does not, of itself, satisfy the onus of proof resting on the plaintiff, it is a matter I can take into account. It enables the inference to be more readily drawn that Mr Rice’s opposition to the application is largely directed to protecting personal interests.
Having regard to all of these considerations, I am satisfied that modification of the restrictive covenant will not substantially injure the persons entitled to the benefit of the restriction of one dwelling per lot.
Mr Simon submitted that if thought fit, part (b) of the restrictive covenant, requiring a minimum living floor area, might also be deleted as there appears no need for a second dwelling of that size, having regard to the original intention of the covenant. Mr Rice made no submission to the contrary. I do not think the deletion of part (b) is necessary, although an amendment consequential on the modification of part (a) is appropriate to preserve the original intention of the covenant in that regard.
The orders I will make, subject to any submission as to form, are as follows:
1.I declare that the restrictive covenant lodged in dealing number X697324K in respect of the land described in certificate of title Volume 10160 Folio 359 of the Land Register maintained by the Registrar of Titles is modified as follows:
(a)in part (a) of the covenant, the expression ‘more than two private dwelling houses’ be substituted for the expression ‘more than one private dwelling house’.
(b)in part (b) of the covenant, the word ‘houses’ is substituted for the word ‘house’ and the words ‘in their combined total’ is added between the words ‘have’ and ‘a’.
2.I direct the Registrar of Titles, pursuant to s 103 of the Transfer of Land Act1958, to forthwith record in respect of certificate of title Volume 10160 Folio 359 of the Register that the restrictive covenant lodged in dealing number X697324K in respect of the land described in the said certificate of title is modified as I have declared.
Subject to any further submissions from the parties, I will make no order as to costs.
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CERTIFICATE
I certify that this and the 14 preceding pages are a true copy of the reasons for Judgment of Dixon J of the Supreme Court of Victoria delivered on 1 August 2011.
DATED this first day of August 2011.
Associate
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