Radandt v O'Toole

[2006] NSWSC 721

CITATION:	Radandt v O'Toole [2006] NSWSC 721
HEARING DATE(S):	17/07/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	07/17/2006
DECISION:	Hearing vacated. Summons and cross claim referred to an Associate Justice to settle notices and for hearing.
CATCHWORDS:	CONVEYANCING - Relationship of Vendor and Purchaser - Restrictive Conveyance - Summons by one lot owner against another to enforce restrictive covenant applicable to 150 lot subdivision - Cross claim to modify or wholly or partially extinguish the covenant - No notices to others under the Conveyancing Act 1919, s 89(4) nor compliance with Precedence in Ritchie's Supreme Court Procedure at [14,006]
LEGISLATION CITED:	Conveyancing Act 1919 Supreme Court Rules 1970 Conveyancing Service New South Wales, Butterworths, Australia, 2003, looseleaf
PARTIES:	Manfred Paul Radandt & Evelyn Edith Radandt - Plaintiffs Gary Daniel O'Toole - Defendant
FILE NUMBER(S):	SC 3677/04
COUNSEL:	Mr P R Cummings - Plaintiff Mr B J Burke - Defendant
SOLICITORS:	Cunningham & Adam Solicitors - Plaintiff Bruce Wilkinson Solicitor & Attorney - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 17 JULY 2006

3677/04 MANFRED PAUL RADANDT & ANOR v GARY DANIEL O’TOOLE

EX TEMPORE JUDGMENT

1 The plaintiffs, Manfred Paul Radandt and Evelyn Edith Radandt, by summons seek a declaration that they are entitled to the benefit of a restriction as to user expressed in cl 6 of an instrument registered with the deposited plan of a subdivision of some 150 lots under the Conveyancing Act 1919, s 88B, a declaration that the land of the defendant, Gary Daniel O’Toole, is burdened by the restriction, a declaration that a shed type building erected on Mr O’Toole’s land was erected and is maintained in breach of the restriction, an order for demolition, and a permanent injunction restraining Mr O’Toole from constructing buildings on the land which do not comply with the restriction.

2 By way of a cross-claim, Mr O’Toole seeks an order that the restriction as to the use of the land expressed in cl 6 of the instrument be modified or wholly or partly extinguished pursuant to the Conveyancing Act 1919, s 89. It provides, relevantly for present purposes, that where land is subject to a restriction arising under covenant or otherwise as to the user thereof, the Court may from time to time, on the application of any person interested in the land, by order modify or wholly or partially extinguish the restriction upon being satisfied of a number of things. Section 89 (4) is in these terms:

“Notice of any application made under the section shall, if the Court so directs, be given to the council of the area (within the meaning of the Local Government Act 1993) in which the land is situated, and to such other persons and in such manner, whether by advertisement or otherwise, as may be prescribed by rules of Court or as the Court may order."

3 The notes in Conveyancing Service New South Wales, Butterworths, Australia, 2003, looseleaf, at [32253.50] state:

"Procedural aspects of a summons to vary a restrictive covenant are dealt with in Ritchie’s Supreme Court Procedure, Butterworths, Sydney, 1984 to date (looseleaf), at guidecard “Precedents” [14,006].”

4 There are no relevant rules of Court that govern the operation of the Conveyancing Act 1919, s 89(4), but the precedent sets out, in detail, a suggested procedure. In essence, it states that the usual way of proceeding in an application under the section is to approach the Court twice. On the first occasion, an Associate Justice determines the notice to be given and settles its form. A precedent is given of such a notice at the foot of the precedent. The notice indicates to the recipient what they may do if they wish to oppose the application and if they wish to be heard. The second approach is when the matter is dealt with by an Associate Justice.

5 An Associate Justice has specific jurisdiction to deal with matters under the Conveyancing Act 1919, s 89 under the Supreme Court Rules 1970, Pt 60 r 1A(1)(a) and the reference to the section in Pt 1 of Sch D.

6 Some of the issues in the summons may not fall within an Associate Justice’s jurisdiction as matters incidental to the Conveyancing Act 1919, s 89 in terms of the Supreme Court Rules 1970, Pt 60 r 1A(6). But an Associate Justice also has jurisdiction with respect to the matters set out in Pt 3 of Sch D in terms of Pt 60 r 1A(1)(c) and cl 4 includes any trial or hearing of proceedings, except with a jury, where referred by an order of a Judge.

7 The salutary aspects of the precedent are obvious as are the requirements in the Conveyancing Act 1919, s 89(4).

8 It seems that the restrictive covenant in question affects each of the lots in the 150 lot subdivision. There may well be other persons, the registered proprietors of other lots, who wish to be heard with respect to the matter raised by the cross-claim.

9 In those circumstances it does not seem to me to be possible to commence the proceedings today, there having been no notice to any of those persons and no specific notice to the local council, although the council is aware of the dispute.

10 Mr Burke, who appears for Mr O’Toole, submits that the costs of the adjournment should be costs in the cause because Mr O’Toole was only alerted to the need for notification of the other persons within the subdivision upon receipt of the written submissions of Mr and Mrs Radandt on 30 June 2006. It seems to me, however, that reference to the Conveyancing Service New South Wales should have brought home to the legal advisers of Mr O’Toole the precedent that is clearly identified in the note to the Conveyancing Act 1919, s 89(4).

11 In those circumstances, it seems to me that the need for the vacation of the hearing lies squarely at the feet of Mr O’Toole and I propose to make an order that he pay the costs thrown away.

12 I therefore vacate the hearing of this matter. I close the ECM Court. I refer the summons and the cross-claim for hearing before an Associate Justice. I stand the matter over before the Registrar at 9.30 am on Thursday 20 July 2006 for initial reference of the cross-claim to an Associate Justice to settle the form of notice of the cross-claim and the persons to whom it is to be sent. I order the defendant/cross-claimant to pay the plaintiffs’ costs thrown away by the vacation of the hearing.

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