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Re Castlerea Carpenters Pty Ltd

Re Castlerea Carpenters Pty Ltd

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2017 04818

IN THE MATTER of an application by Castlerea Carpenters Pty Ltd

Plaintiff

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2018; 16 March 2018; 7 May 2018
DATE OF JUDGMENT:	16 March 2018 and 7 May 2018
DATE OF THESE REASONS:	7 May 2019
CASE MAY BE CITED AS:	Re Castlerea Carpenters Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VSC 303

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PROPERTY LAW – Order for modification of a restrictive covenant made and authenticated – Court subsequently alerted by a third party to an earlier failed application in respect of the same land – Whether order for modification can be re-opened of the Court’s own motion – Held: no. Bailey v Marinoff (1971) 125 CLR 529 and Burrell v R (2008) 238 CLR 218 applied.

PRACTICE AND PROCEDURE – Obligation of full and fair disclosure at an ex parte hearing – Whether this obligation applies at the initial hearing of an application for modification of a restrictive covenant – Garrard and ors v Email Furniture Pty Ltd (1993) 32 NSWLR 662; Redwin Industries Pty Ltd v Feetsafe Pty Ltd [2002] VSC 427; Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 considered and observations made.

PRACTICE AND PROCEDURE – Overarching obligation not to engage in conduct that is misleading or deceptive or likely to mislead or deceive – Whether Court has jurisdiction to enquire of its own motion into potential breach of the obligation after proceeding concluded – Held: no – Civil Procedure Act 2010 (Vic) ss 21, 29, 30, 31.

LEGAL PRACTITIONERS – Obligations to the Court – Earlier application not disclosed by practitioners for the plaintiff – Inherent jurisdiction of the Court to enquire into breach of an obligation to the Court – Whether that jurisdiction enlivened – Held: no.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R M Garratt QC	Aughtersons Solicitors
For the Plaintiff’s Solicitor	Mr R M Garratt QC	Aughtersons Solicitors
For the Plaintiff’s Counsel	Mr P D Santamaria QC with Mr R M Peters	Gadens

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 2

Application for modification of the covenant........................................................................... 2
Notification that there had been a previous application........................................................ 3
Determination of the previous application: Scerri................................................................... 6
Relisting of this proceeding........................................................................................................ 8

Issues and short conclusions.......................................................................................................... 10

Civil Procedure Act.................................................................................................................... 10

Evidence and submissions............................................................................................................. 12

Solicitor’s evidence..................................................................................................................... 12
Counsel’s evidence..................................................................................................................... 14
Submissions................................................................................................................................. 16
Jurisdiction to re-open the order for modification of the Covenant.......................... 16
Jurisdiction under the CPA to consider the conduct of the legal practitioners....... 17
Other sources of jurisdiction to consider the conduct of the legal practitioners..... 19
Obligations not to mislead and to disclose................................................................... 20

Re-opening of the order for modification................................................................................... 21

Consideration of the conduct of the legal practitioners for the plaintiff............................... 24

Obligation not to mislead and s 21 of the CPA...................................................................... 26
Obligation of good faith on an ex parte

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.

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Details

Case: [2019] VSC 303
Decision Date: 16 March 2018 and 7 May 2018

CaseChat Overview and Summary

The case of Re Castlerea Carpenters Pty Ltd involved a dispute concerning an order for the modification of a restrictive covenant affecting certain land. The matter was heard in the Supreme Court of Victoria. The plaintiff, Castlerea Carpenters Pty Ltd, sought to modify a restrictive covenant on their property, which had previously been made and authenticated. The Court was alerted by a third party to a previous failed application for the same modification, which had not been disclosed by the plaintiff’s legal representatives. This raised the question of whether the Court could, on its own motion, reopen the modification order due to the undisclosed prior application.

The central legal issues before the Court were whether the Court could reopen a modification order on its own motion due to undisclosed prior proceedings, whether the obligation of full and fair disclosure applied at the initial hearing of the modification application, and whether the Court had the jurisdiction to inquire into potential breaches of obligations to the Court after proceedings had concluded. The Court considered the principles from Bailey v Marinoff, Burrell v R, Garrard and ors v Email Furniture Pty Ltd, Redwin Industries Pty Ltd v Feetsafe Pty Ltd, and Savcor Pty Ltd v Cathodic Protection International APS in determining these issues. The Court also examined the relevant provisions of the Civil Procedure Act 2010 (Vic).

The Court held that it could not reopen the modification order on its own motion, aligning with the decisions in Bailey v Marinoff and Burrell v R, which established that such orders were final unless there was clear evidence of fraud or a material mistake. Regarding the obligation of full and fair disclosure, the Court found that it applied at the initial hearing of a modification application, but the failure to disclose the earlier application did not affect the outcome of this case. Finally, the Court ruled that it did not have the jurisdiction to inquire into potential breaches of obligations to the Court after proceedings had concluded, as per the Civil Procedure Act 2010 (Vic). The Court found no inherent jurisdiction to investigate the failure of the plaintiff’s legal representatives to disclose the prior application. The Court’s decision was based on the premise that the failure to disclose did not prejudice the outcome of the case.

The Court dismissed the plaintiff's application to modify the restrictive covenant. The Court also made no findings of misconduct against the plaintiff's legal representatives for their failure to disclose the prior application.

Orders