PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd

In the matter of PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd, the plaintiff sought an injunction to address the defendant's cladding encroaching into the plaintiff's airspace. The court was tasked with determining whether an injunction should be granted and, if so, the appropriate form of relief. The legal issues before the court included whether the defendant's actions constituted a trespass to the plaintiff's airspace, the potential for damages as an alternative to an injunction, and the considerations that should be taken into account in deciding whether to grant an injunction.

The court found that the plaintiff had a strong prima facie entitlement to an injunction, as the encroachment into the airspace was ongoing and interfered with the plaintiff's actual and potential ordinary use of the land. The encroachment also conferred a commercial benefit on the defendant. The court considered several factors, including the lack of special countervailing considerations, the absence of significant delay by the plaintiff, and the lack of serious offers from the defendant to resolve the issues. Although there would be some hardship for the defendant if the injunction were granted, the court found that the defendant's actions were negligent and disregarded the plaintiff's rights. The court concluded that damages would not be an appropriate remedy as it would effectively allow the defendant to acquire the airspace against the plaintiff's will. Therefore, the court decided to grant an injunction requiring the removal of all the cladding.

The final orders included the defendant paying nominal damages for certain areas of encroachment and agreeing to remove the cladding if the plaintiff proceeds with its planned development in those areas. For other specified areas, the defendant was to either purchase, lease, or otherwise compensate the plaintiff for the encroachment. The defendant also agreed to provide an undertaking to the court regarding these matters. The court reserved the issue of quantum for a later time if damages were deemed appropriate.