Shirvid Pty Ltd v Tomwill Pty Ltd

[2005] VSC 513

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9946 of 2005

SHIRVID PTY LTD & ORS	Plaintiffs
v
TOMWILL PTY LTD	Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 December 2005
DATE OF JUDGMENT:	21 December 2005
CASE MAY BE CITED AS:	Shirvid Pty Ltd v Tomwill Pty Ltd
MEDIUM NEUTRAL CITATION:	[2005] VSC 513

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Tort - trespass - interlocutory injunction - restraints on all parties - no undertaking as to damages required.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I. G. Waller	Brand Partners
For the Defendant	Mr M. R. Simon	Pietrzak Solicitors

HIS HONOUR:

1. This is an application for interlocutory injunctions in an action commenced by writ on 14 December 2005 in which the plaintiffs seek declarations and injunctions concerning alleged easements over a laneway at the rear of their premises in Glenferrie Road, Hawthorn.

1. The defendant is an adjoining land owner who claims an absolute right to use the laneway as an unencumbered part of his property.  To assert this right he has blocked access to the laneway by the installation of a retractable bollard.  The plaintiffs seek interlocutory relief pending a resolution of what is considered on all sides to be a serious issue to be tried.  Attempts to settle the matter have been unsuccessful and so I must make a determination as to what should happen pending the trial.

1. The laneway has been used for many years by adjoining residents (in one case more than 30 years) for the disposal of garbage, parking (particularly at weekends) and the delivery of goods and maintenance of the Glenferrie Road properties.  In 1994 the then owner of the defendant's land asserted title to the laneway but permitted continued use.

1. It is essential that some sort of practical solution to this matter is found pending the trial of the action when the rights of the parties can be properly determined.  At present the defendant is conducting building works on his premises and has a rubbish skip in the laneway, as well as some screenings and sand, which are presumably being used in the building works.  He must be permitted to continue the building works until they are completed, which it is said will be sometime in about mid February.  To this end he must be able to use a skip and bring building materials onto the disputed area.

1. The bollard is another matter.  It is as much a psychological barrier as a physical one and serves only the purpose of demonstrating the defendant's assertion of his rights.  It must be retracted into the ground pending the resolution of this matter and it must remain there until that resolution.

1. The plaintiffs have customarily used the lane for access to their properties including the delivery of goods and they have parked vehicles there at weekends.  They must be able to have limited use of the lane pending the resolution of the proceedings.

1. The orders which I will make will probably not satisfy anybody, but common sense and a spirit of tolerance must dictate the actions of all of the parties if this is not to degenerate into an unseemly and very costly dispute.

1. The parties will have liberty to apply so that if the matter becomes unbearable and further orders are required, they will be able to come back to court, but they are not encouraged to do so.  They are to be encouraged to resolve their differences during the short period which will elapse until this matter can be finally determined.

1. The orders I will make are as follows, and I will hear counsel on the question of an undertaking as to damages at the end:

Order (1) The defendant immediately retract the bollard presently obstructing the entrance to the laneway the subject of this dispute and keep that bollard retracted until the resolution of this proceeding or further order.

(2)  That until the trial of this proceeding or further order, the plaintiffs and the defendant are prohibited from obstructing the laneway the subject of this dispute, such that such obstruction prevents any of them from accessing their respective premises including accessing those premises using motor vehicles, provided that:

(a)  the defendant may maintain a rubbish skip or similar receptacle in or about the position of the yellow skip currently situated in the laneway whilst it is engaged in building work to its premises adjoining the lane or until 31 March 2006, whichever first occurs;

(b) the defendant may use the laneway, including leaving motor vehicles stationary in the laneway, for purposes legitimately connected with the said building works, during the currency of those works or until 31 March 2006, whichever first occurs;

(c) the plaintiffs and the defendant may use the laneway, including using it by motor vehicle, to obtain access to their properties as they did before the bollard was erected, including, when necessary, leaving motor vehicles stationary for reasonable periods for purposes connected with the delivery of goods, maintaining their properties and like uses.

(3)  That the defendants file and serve a defence and counterclaim to the plaintiffs' statement of claim by 23 January 2006.

(4)  That the plaintiffs file any reply and defence to counterclaim by 1 February 2006.

(5)  That any further affidavits by or on behalf of the plaintiffs be filed and served by 7 February 2006.

(6)  That any affidavits on behalf of the defendant be filed and served by 13 February 2006.

(7)  That there be a mediation in accordance with the mediation procedures set out in the Commercial List Practice Note, such mediation to occur by 20 February 2006.

(8)  That matter be referred to the Listing Master on 21 February 2006 for fixing for trial on an estimate of two and a half days with such expedition as she is able to give it.

1. I turn then to the question of an undertaking as to damages.  It seems to me that having regard to the fact that restraining orders have been made against both the plaintiffs and the defendant, this might be a case in which it is not appropriate to seek an undertaking as to damages from the plaintiff.

1. What do you say, Mr Simon?  It does not seem to me to be the sort of case where it is very realistic that there will be any damage of a kind requiring financial compensation.  If something happens, somebody has got to come back to court, and it is a matter - - -

MR SIMON:If Your Honour pleases.

HIS HONOUR:  I mean, do you want to say anything about it?  I am inclined not to impose an undertaking as to damages.  It does not seem to matter very much.

MR SIMON:  If Your Honour pleases.  Would Your Honour reserve the costs?

HIS HONOUR:  Yes, there will be liberty to apply.  The costs will be reserved.  Are there any other orders?

MR WALLER:  No, Your Honour.

MR SIMON:  No, Your Honour.

HIS HONOUR:  Very well.  Thank you, gentlemen.

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CERTIFICATE

I certify that this and the 3 preceding pages are a true copy of the reasons for Judgment of Bongiorno of the Supreme Court of Victoria delivered on 21 December 2005.

DATED this 21 day of December 2005.

Associate