Maio v City of Stirling
[2014] WASC 37
•07/02/2014
MAIO -v- CITY OF STIRLING [2014] WASC 37
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 37 | |
| 07/02/2014 | |||
| Case No: | CIV:2706/2013 | 12 DECEMBER 2013 | |
| Coram: | LE MIERE J | 12/12/13 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | GIROLAMO MAIO GLENYS JOY MAIO JVR PTY LTD LINEMARK INVESTMENTS PTY LTD CITY OF STIRLING VALMARL PTY LTD PETER GRAHAM HEARN GIOVANNI ITALIANO ROD WILLOX KAREN HYDE PAUL DRECHSLER FRED ZUIDEVELD |
Catchwords: | Practice and procedure Application for interim injunction Prima facie case for final relief not established Balance of convenience does not favour grant |
Legislation: | Property Law Act 1969 (WA), s 11 |
Case References: | ABC v O'Neill (2006) 227 CLR 57 Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- GLENYS JOY MAIO
First Plaintiffs
JVR PTY LTD
Second Plaintiff
LINEMARK INVESTMENTS PTY LTD
Third Plaintiff
AND
CITY OF STIRLING
First Defendant
VALMARL PTY LTD
PETER GRAHAM HEARN
Second Defendants
GIOVANNI ITALIANO
ROD WILLOX
KAREN HYDE
PAUL DRECHSLER
FRED ZUIDEVELD
Third Defendants
Catchwords:
Practice and procedure - Application for interim injunction - Prima facie case for final relief not established - Balance of convenience does not favour grant
Legislation:
Property Law Act 1969 (WA), s 11
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiffs : Mr P C Doherty
Second Plaintiff : Mr P C Doherty
Third Plaintiff : Mr P C Doherty
First Defendant : Mr A Roberts
Second Defendants : Mr M C Hotchkin
Third Defendants : No appearance
Solicitors:
First Plaintiffs : Haydn Robinson
Second Plaintiff : Haydn Robinson
Third Plaintiff : Haydn Robinson
First Defendant : McLeods
Second Defendants : Hotchkin Hanly
Third Defendants : No appearance
Case(s) referred to in judgment(s):
ABC v O'Neill (2006) 227 CLR 57
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199
- LE MIERE J: (This is an edited version of the reasons delivered ex tempore on 12 December 2013.)
1 The plaintiffs seek an order in the terms set out in their chamber summons of 10 December 2013, which is in these terms:
Until further order the third defendant be restrained from determining the application by TPG Town Planning, Urban Design and Heritage the subject of Department of Planning File No. DP/13/00723, LG reference DA13/2271 in relation to Lot 604, House No. 114 Cedric Street, Stirling.
2 The third defendants, who are the members of the Metropolitan North-West Joint Assessment Panel, are scheduled to hear and determine the application referred to today, 12 December 2013. It is in those circumstances that the plaintiffs have brought this application on an urgent basis.
3 Counsel for the first defendant, the City of Stirling, has appeared, but informed the court that it has no submissions to make in relation to the matter. Counsel for the second defendants has appeared and sought an adjournment of the application. Counsel opposed the grant of any interim injunction pending the hearing of the adjourned application. In those circumstances, I have to consider whether an interim injunction should be made pending any adjourned hearing of the application. The third defendants have not appeared, but counsel for the plaintiffs has informed the court that the third defendants intend to abide the outcome of the court decision.
4 The evidence before the court goes back to matters that occurred in 1983. In 1983 the then owners of lots 78, 79 and 80, more precisely described in the affidavit of Giralamo Maio sworn 10 December 2013, proposed to subdivide the land to form lots 602, 603 and 604. They made application to the Town Planning Board for its approval. The board granted approval subject to a condition requiring the owners to enter into an agreement with the City of Stirling, the authority within whose boundaries the land was situated. The owners entered into an agreement with the City of Stirling, which is dated 11 May 1983, and described by the plaintiffs as the reciprocal rights deed. The owners proceeded with the subdivision and lots 602, 603 and 604 were formed. The plaintiffs are subsequent registered proprietors of lot 602, or at least parts of lot 602. The second defendants and one Chris Bogle became subsequent owners of lot 604.
5 There is an issue concerning the proper construction of the reciprocal rights deed. The plaintiffs set out in [1.3] of their written outline of submissions their contention as to the proper construction of the deed, or at least some of the matters which the deed requires on its proper construction. That is not conceded by the defendants, but I am satisfied, for the purposes of this hearing, that there is a prima facie case that, on its proper construction, the reciprocal rights deed requires the matters set out in [1.3] of the plaintiffs’ submissions.
6 The plaintiffs claim, and the second defendants have denied, that the plaintiffs are entitled to enforce those benefits by reason of the Property Law Act 1969 (WA) s 11, despite not being parties to the deed, because the deed expressly in its terms purports to confer a benefit directly on them. That matter has not been the subject of argument, and I have formed no concluded view on the matter. However, I find that, for the purposes of this hearing, the plaintiffs have made out a prima facie case that they can enforce the reciprocal rights deed.
7 The City, the second defendants and Mr Bogle, made an agreement which the plaintiffs describe as the 'first assumption reciprocal rights deed'. Mr Bogle then transferred his interest to the second defendants. Then the City, the second defendants and the Bank of Queensland entered into a deed described by the plaintiffs as the 'second assumption reciprocal rights deed'.
8 The material before the court is to the effect that the second defendants have entered into a conditional contract to sell lot 602 to a company associated with one Henry Bethlehem. A town planning firm, called TPG Town Planning Urban Design and Heritage, has submitted an application for development approval for lot 602. The plaintiffs say that the application, if approved, would permit the owner of lot 604 to act in a manner inconsistent with the benefits conferred on the plaintiffs, pursuant to the reciprocal rights deed, the first assumption reciprocal rights deed or the second assumption reciprocal rights deed, and that would be to the detriment of the plaintiffs. I accept, for the purposes of this hearing, that the plaintiffs have made out a prima facie case to that effect.
9 The development application must be determined by the Metropolitan North West Joint Development Assessment Panel, which the parties have described as JDAP. As I have said, the members of the JDAP are the third defendants. The City has furnished to the JDAP a report entitled Responsible Authority Report. The report recommends, in substance, that the JDAP approve the development application, subject to certain conditions, which are set out in the report. In its report, the City stated, amongst other things, the following. At point 1:
The applicant is reminded that the 1983 Deed is applicable to this development.
10 At point 10, it is stated:
This approval is not an authority to ignore any constraint to development on the land, which may exist through statute, regulation, contract or on title, such as an easement or restrictive covenant. It is the responsibility of the applicant and not the City to investigate any such constraints before commencing development. This approval will not necessarily have regard to any such constraint to development, regardless of whether or not it has been drawn to the City's attention.
11 The officer's comment appears on page 24 of the report (page 132 of the affidavit). Under the heading '1983 Deed Relevant to the Proposed Development', the report makes observations about the deed and the development and in its concluding paragraph of that section states:
The City has formed the view that the proposed development is consistent with the provisions of this deed. The City received a Writ of Summons dated 12 November 2013 in regards to the existing deed dated 11 May 1983. This matter is with the City's solicitors.
12 It is important to focus on the relief which the plaintiffs seek in this application. The plaintiffs seek an injunction restraining the JDAP from determining the application until such time as the proper construction of the reciprocal rights deed is determined by this court in this action. In determining whether the court should grant an interim injunction, as with an interlocutory injunction, the court must have regard to whether or not the plaintiffs have made out a prima facie case for relief in the sense explained by the High Court in ABC v O'Neill (2006) 227 CLR 57 and whether or not the balance of convenience favours the grant of the relief sought.
13 The court must take into account matters relevant to the exercise of its discretion. In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, the High Court considered whether or not an injunction should have been granted to restrain the appellant from distributing, publishing, copying or broadcasting a particular video. The head note records that the majority held that 'where an interlocutory injunction is sought it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought (which need not be injunctive in nature)'. At [21], Gleeson CJ stated:
It is not contended that the appellant has contravened, or threatens to contravene, any statute. It appears that the people from whom the appellant received the video broke the law, perhaps in a number of respects. And it is pointed out that the appellant knows that the respondent's activities were filmed unlawfully, and without the respondent’s consent. But if the respondent has the right to prevent the appellant's use of the film, that right must emerge from some principle of general application. The appellant says that it has broken no law, and there is no principle which justifies an order preventing it from broadcasting the material that has come into its possession. It does not seek, or require, judicial approval of its conduct. It maintains that it is free to broadcast simply, because there is no law against it.
14 In my view, the plaintiffs have failed to identify the legal or equitable rights which are to be determined by the JDAP and in respect of which final relief is relevantly sought. Counsel for the plaintiffs submits that the JDAP must take into account the reciprocal rights deed as a relevant planning instrument. That much may be accepted. Indeed, the report of the City observes as much. However, the duty of the JDAP is to hear and determine the application. The plaintiffs have not pointed to any legal, statutory or equitable right of the plaintiffs, which is infringed by the JDAP proceeding to hear and determine the application for planning approval.
15 Furthermore, whilst the JDAP must take into account the reciprocal rights deed as a planning instrument relevant to the exercise of its discretion or its decision on the development application, the JDAP must make its decision having regard to all relevant matters before it. The discretion of the JDAP is not fettered by the deed in the sense that it removes from the JDAP the duty and discretion to consider the development application and make its decision having regard to all relevant matters before it. Of course, the JDAP must take into account the reciprocal rights deed and should have regard to its proper construction.
16 The JDAP has not at this time made any decision which infringes any right, legal, statutory or equitable, of the plaintiffs. In my view, for those reasons, the plaintiffs have failed to make out a prima facie case for the relief which they seek, and that the relief which is sought in this application is in support of the final relief or any final relief which they seek in the terms explained in ABC v Lenah Game Meats.
17 Furthermore, matters concerning the balance of convenience and discretion also need to be considered. The injunction sought seeks to prevent the JDAP considering the application until the court has determined the proper construction of the deed. That, in effect, or in part, seeks to stop the JDAP exercising its statutory duty to consider all relevant planning instruments, including the deed and to have regard to its proper construction. The panel has not yet made a decision. The JDAP may decide to refuse approval or to add further conditions flowing from or related to the reciprocal rights deed.
18 Furthermore, if the panel does grant approval then the plaintiffs may pursue relevant relief that might include seeking judicial review of the decision of the panel if it is contended that that decision is unlawful. It might include taking action to restrain the second defendants or the subsequent purchaser of lot 604, from proceeding to develop the land in a way which is inconsistent with the deed. In my view, the proper exercise of the discretion of the court is to refuse the injunction which is sought.
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