Seitanidis Pty Ltd v Vassallo

[2001] VSC 323

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7028 of 2001

SEITANIDIS PTY. LTD. AND ANOTHER	Plaintiffs
V
VASSALLO AND ANOTHER	Defendants

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JUDGE:	BEACH, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 AUGUST 2001
DATE OF JUDGMENT:	27 AUGUST 2001
CASE MAY BE CITED AS:	SEITANIDIS & ANOR. v. VASSALLO & ANOR.
MEDIUM NEUTRAL CITATION:	[2001] VSC 323

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CATCHWORDS:      Practice and Procedure – Interlocutory injunction – Serious issue to be tried – Balance of convenience.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. R.C. Wells	Rennick & Gaynor
For the Defendants	Mr. V.A. Morfuni	Velos & Davis

HIS HONOUR:

1. On 9 October 1979 the defendants became the owners of Lot 7 Allenby Road, Sydenham.

1. On 11 September 1981 the 1st plaintiff became the owner of Lot 8 Allenby Road.

1. As at the time the first plaintiff acquired Lot 8 there was in existence a post and mesh fence between the two allotments which purported to indicate the boundary between the two allotments and two structures erected on what appeared to be the defendant's property - each consisting of a galvanised iron shed.

1. The fact is that the fence and the two sheds encroach on the plaintiff's land. 

1. In 1982 the plaintiffs evinced an intention to remove the fence and structures and erect a new fence on the correct boundary.

1. The defendants filed a proceeding in this court, being proceeding No.9975 of 1982. 

1. On 10 December 1982 the matter came before Murray, J.  Upon the plaintiffs giving the usual undertaking as to damages and the defendants undertaking not to demolish or otherwise interfere with the wire mesh fence dividing the allotments and not to demolish or interfere in any way with the buildings now occupied by the defendants on the defendants' land until the hearing and determination of the action or until further order, the plaintiffs' notice of motion in that action was adjourned sine die.  Thereafter the proceeding remained dormant in the court.

1. On 2 July 2001 the first plaintiff sold Lot 8.  The contract is conditional upon the first plaintiff re-locating the existing fence to the title boundary within 90 days of the day of sale.  The defendants have also entered into an unconditional contract to sell their land. 

1. On 7 August 2001 the plaintiffs filed this proceeding in the court seeking:

1.An order that each of them be released from the undertakings referred to in the statement of claim, those being the undertakings given to Murray, J. on 10 December 1982.

2.A declaration that the first plaintiff is entitled to possession of the piece of disputed land.

3.        An order for possession of the land.

1. The matter came before me on 15 August.  On the plaintiffs giving an undertaking that they would not demolish or otherwise interfere with the post and mesh fence and not demolish or otherwise interfere with the two sheds without first giving not less than seven days' prior notice in writing to the solicitors for the defendants of their intention to take any action, I ordered that the plaintiffs and defendants be formally released from their undertakings given to the court on 10 December 1982 in proceeding No.9975 of 1982.

1. On 23 August the defendants filed their defence and counter-claim in the new proceeding.  By their counter-claim they seek an injunction, interim, interlocutory and final, restraining the plaintiffs from demolishing the fence and the buildings, a declaration that they are entitled to possession of the disputed strip of land and an order, if necessary, that the certificates of title in relation to the two allotments be amended to show the present boundary, or to show that the boundary of the land accords with the location of the present boundary fence. 

1. The plaintiffs have now given notice to the defendants of their intention to remove the fence and sheds and erect a new fence on the title boundary.

1. This is the return of a summons filed in the court by the defendants whereby they seek an order that the plaintiffs be restrained from demolishing the fence and buildings in question.

1. In my opinion there is clearly a serious issue to be determined in the proceeding concerning the defendants' claim that they now have a possessory title to the disputed strip of land. 

1. It is a great pity that the then - and I stress the word "then" - legal advisers of the parties did not ensure that the ownership of the strip was determined by the court back in the 1982 proceeding.  Had that occurred this further proceeding would have been unnecessary.

1. As for the balance of convenience, in my opinion the appropriate course for the court to adopt now is to make an order the effect of which will be to preserve the status quo of the matter until the case can be fully heard and determined by the court.  If that causes a degree of inconvenience to the parties, in my opinion they have no one but themselves to blame.

1. Counsel for the defendant having given the usual undertaking as to damages, I order:

That until further order the plaintiffs by their servants or agents or howsoever otherwise be restrained from demolishing the fence and buildings referred to in paragraph 3 of the plaintiffs' statement of claim.

I order that the costs of this application be reserved.

I direct that within 48 hours the solicitors for the plaintiffs prepare this order and bring it to me for authentication.

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