Kooralbyn Valley Pty Ltd v Pillay & Kooralbyn Real Estate Pty Ltd

Kooralbyn Valley Pty Ltd, the plaintiff, filed a claim against Shunmoogan Pragalathan Pillay and Kooralbyn Real Estate Pty Ltd, the first and second defendants, respectively. The dispute revolves around a building covenant contained within a contract of sale for a parcel of land within a residential subdivision. The plaintiff alleges that the second defendant, a real estate agent, induced the first defendant to breach the building covenant, causing the plaintiff to suffer loss and damage. The second defendant has brought a motion seeking to have the plaintiff's claim struck out on the grounds of abuse of process and on the basis that the building covenant is inapplicable as no dwelling has been erected on the land.

The court was required to determine whether the plaintiff's claim was an abuse of process and whether the building covenant was applicable to the circumstances of the case. The court examined the language of the building covenant and concluded that some provisions were intended to apply irrespective of whether a dwelling was constructed. The court found that the building covenant should be read to require compliance with certain standards if a dwelling was to be erected and to apply to other provisions regardless of whether a dwelling had been constructed.

The court dismissed the second defendant's application to strike out the claim, finding that the statement of claim disclosed a sustainable cause of action. The court ordered that the second defendant pay the plaintiff's costs of and incidental to the application to be taxed.