Spitzer v Gregory Investments Pty Limited

[1990] TASSC 138

Serial No B61/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Spitzer v Gregory Investments Pty Limited [1990] TASSC 138; B61/1990

PARTIES:  SPITZER, Bernarda Maria
  v
  GREGORY INVESTMENTS PTY LIMITED
  DREAVER, Nigel Anthony
  SANDY BAY HI FI (RETAIL) PTY LIMITED
  trading as EDUARDO'S RECORD SHOPPE

FILE NO/S:  1239/1990
DELIVERED ON:  27 September 1990
JUDGMENT OF:  Zeeman J

Judgment Number:  B61/1990
Number of paragraphs:  6

Serial No B61/1990
List "B"
File No 1239/1990

BERNARDA MARIA SPITZER v GREGORY INVESTMENTS PTY LIMITED
NIGEL ANTHONY DREAVER and SANDY BAY HI FI (RETAIL) PTY LIMITED
trading as EDUARDO'S RECORD SHOPPE

REASONS FOR JUDGMENT  ZEEMAN J

27 September 1990

1. In this matter, the applicant is one of the two plaintiffs in the action (the other having died since the application was filed) and seeks relief similar to that referred to in Spitzer v Nichols Properties Pty Limited (B60/1990) in which I have delivered judgment earlier to–day. In this case the relief is sought in respect of properties at 9 – 11 Gregory Street and 20 Princess Street, Sandy Bay. The considerations which led me to dismiss that application also apply in this case, subject to three matters of difference:

(a)A significant amount of building works were involved in this case and such works largely have been completed.

(b)The terms of the Corporation's approval were somewhat different.

(c)There was evidence as to significant prejudice, at least on the part of the second and third–named respondents.

1. As to the first of those matters, suffice it to say that significant building extensions are involved in this matter and that at least in so far as the exterior portion of those is concerned, they have been largely completed.

1. In so far as the Corporation's determination is concerned, it was in different terms, namely:

"That pursuant to Section 734 of the Local Government Act 1962, the application for additions and change of use to a shop and flat with associated car parking at 9 and 11 Gregory Street and 20 Princess Street, Sandy Bay, be approved by way of a dispensation from the interim order subject to the following conditions:"

1. There followed a number of conditions of the type which one might normally expect to find in a planning approval. It is reasonably arguable in respect of this matter that the Corporation did not purport to dispense the respondents from the requirements of the interim order (if enforceable) to obtain planning approval after the dispensation had been granted.

1. As to prejudice, I heard evidence from Mr Dreaver of prejudice which he and the third–named respondent would suffer if the injunction were to issue. It is sufficient to summarise his evidence (which I accept) by saying that his present business must very shortly vacate its present location, and that if he cannot occupy the premises, the subject of the action, his long–standing business will not have a site available to it in Sandy Bay. The building which has been largely completed has been custom built for his purposes. It is reasonable to infer that significant economic detriment would befall the second and third–named defendants if I were to grant the injunction.

1. Again, applying the relevant principles, bearing in mind the additional factors referred to in these reasons, I am not persuaded that I ought to grant the applicant the relief which she seeks. The application is dismissed.