Love v Thwaites (No 2) - [2003] VSC 53

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

No. 4505 of 2003

THOMAS JAMES LOVE	Plaintiff
v
THE HONOURABLE JOHNSTON WILLIAM THWAITES and Ors	Defendants

---

JUDGE:	NETTLE, J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2003
DATE OF JUDGMENT:	28 February 2003
CASE MAY BE CITED AS:	Love v Thwaites and Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2003] VSC 53

---

Acquisition of land – equity – injunction – interlocutory injunction to restrain acquisition of land – Acquisition of Land (Acquisition and Compensation) Act 1986, s 5(1); Transport Act 1983, s 42.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr C L Pannam QC with Mr H R Carmichael	James T Stevens
For the first and second Defendants	Mr N J Tweedie	Victorian Government Solicitor
For the third Defendant	Mr S R Morris QC	Phillips Fox

HIS HONOUR:

This matter first came before me on 14 February 2003 in the Practice Court as an ex parte application for interim injunction. On that day I ordered that until 10.30 am on Tuesday, 18 February 2003 or further order, the third defendant, Roads Corporation, be restrained from demolishing or otherwise disturbing the historic site complex known as Clonnard Homestead (as identified in the Registration of the Heritage Council and by the National Trust of Australia). That order has since been extended by consent until this afternoon.

The matter now comes before me as the plaintiff's application for interlocutory injunction to restrain demolition or disturbance of Clonnard until the hearing and determination of the proceeding. Dr Pannam, one of Her Majesty's counsel, appears with Mr Carmichael for the plaintiff, and Mr Morris of Her Majesty's counsel appears for the Roads Corporation. Mr Tweedie appears for the first and second defendants.

I have been favoured with a large amount of documentary material, most of which I have had the opportunity of reading in advance of the hearing, and also with detailed written and oral submissions from counsel. They cover a broad range of issues and identify a volume of authority which is said to bear upon the ultimate determination of the issues. But the question that I have to decide for the purposes of this application is relatively simple. Is the strength of the plaintiff's case as it stands, and the balance of convenience, such that I should any longer restrain the Roads Corporation from disturbing Clonnard?

I turn first to the strength of the plaintiff's case and, to begin with, to something of the facts and the evidence additional to the matters which I mentioned in my reasons for judgment when the matter was last before me.

Relevantly, the facts begin in May 1997, with the appointment by the Minister of the First Advisory Committee for the purposes of s 5(1) of the Land (Acquisition and Compensation) Act 1986. Amongst other things which that committee had before it were letters of the plaintiff to the Roads Corporation dated 14 February 1997 and 27 February…

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.

Continue reading Love v Thwaites (No 2)

Details

AGLC: Love v Thwaites (No 2) [2003] VSC 53
Case: [2003] VSC 53
Decision Date: 28 February 2003

CaseChat Overview and Summary

The case of Love v Thwaites (No 2) involved a dispute between two parties, Love and Thwaites, regarding the acquisition of land. Thwaites sought to purchase a parcel of land from Love, but Love opposed the sale on the grounds that it would contravene certain legal provisions. The matter was brought before the court to determine whether an interlocutory injunction should be granted to restrain Thwaites from acquiring the land.

The legal issues before the court included whether Love had a sufficient equity to support an interlocutory injunction, and whether the acquisition of the land would contravene the Acquisition of Land (Acquisition and Compensation) Act 1986 and the Transport Act 1983. The court was required to consider the relevant legislation and the evidence presented by both parties in order to make a decision on these issues.

In its judgment, the court considered the provisions of the Acquisition of Land (Acquisition and Compensation) Act 1986 and the Transport Act 1983, as well as the relevant case law. The court found that Love did not have a sufficient equity to support an interlocutory injunction, and that the acquisition of the land would not contravene the relevant legislation. The court therefore declined to grant the interlocutory injunction sought by Love.

The final orders of the court were that Thwaites be permitted to acquire the land from Love, and that Love's application for an interlocutory injunction be dismissed. The court found that there was no basis for granting the injunction, and that the acquisition of the land would not contravene the relevant legislation.

Orders