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Stanhill Pty Ltd v Jackson

Stanhill Pty Ltd v Jackson

Case [2005] VSC 355 2 September 2005

Restrictive Covenants

Costs

Discretionary Remedies

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6334 of 2003

STANHILL PTY LTD (ACN 075 266 312)	Plaintiff
v
JACKSON AND OTHERS	Defendants

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JUDGE:	MORRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2005
DATE OF JUDGMENT:	2 September 2005
CASE MAY BE CITED AS:	Stanhill Pty Ltd v Jackson
MEDIUM NEUTRAL CITATION:	[2005] VSC 355

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr RB Phillips	No appearance
For the Defendants	Mr AJ Finanzio	No appearance

HIS HONOUR:

On 19 May 2005 I delivered a judgment in this matter and indicated that I proposed to order that the restrictive covenant contained in Instrument of Transfer No 1421721 in the Register Book at the Office of Titles be modified by substituting the expression “not more than two dwelling houses” for the expression “not more than one dwelling house” in paragraph (c) therein. The defendants, who had objected to any modification of the covenant, sought costs, relying upon the decision in Re Withers.[1] As the parties had not had time to read the reasons for judgment I provided an opportunity for the plaintiff and the defendant to make written submissions.
[1][1970] VR 319.

In their submission the defendants have pointed out that the original application sought a modification to the covenant so as to allow the plaintiff to erect five dwellings. Hence, they said, the outcome was well short of what the plaintiff applied for; and justified the defendant’s participation in resisting the original claim. In my opinion, this contention has merit.

The defendants also relied upon the decision in Re Withers. In that case Anderson J commented:

“Though costs are a matter of discretion and each case stands on its particular facts, such cases as these indicate that, unless the objections taken are frivolous, an unsuccessful objector in a proper case should not have to bear the bitter burden of his own costs when all he has been doing is seeking to maintain the continuance of a privilege which by law is his.”

The principle set out in Re Withers is consistent with other decisions of the Court, such as that by Gillard J in Re Markin[2], Lush J in Re Shelford Church of England Girls’ Grammar School[3] and McGarvie J in Re Ulman.[4] In my opinion, it is a sound principle.

[2][1966] VR 494.

[3]Unreported, 6 June 1967.

[4](1985) VConVR 54-178.

The plaintiff submitted that it is rare for a successful plaintiff to be deprived of a costs order in his or her favour. However that general principle is not applicable where a plaintiff seeks some indulgence from the court or (as is the present case) seeks to change an existing right. This is especially so where the remedy sought by the plaintiff is discretionary. I agree with the plaintiff’s submission that section 84 of the Property Law Act should not be seen as a section in which an applicant obtains an indulgence or concession.…

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.

Continue reading Stanhill Pty Ltd v Jackson

Details

AGLC: Stanhill Pty Ltd v Jackson [2005] VSC 355
Case: [2005] VSC 355
Decision Date: 2 September 2005

CaseChat Overview and Summary

The Supreme Court of Victoria was presented with a case between Stanhill Pty Ltd and Jackson, wherein the plaintiff sought to modify a restrictive covenant contained in an Instrument of Transfer. The defendants contested the modification, arguing that the plaintiff’s request was excessive and that they had a legitimate interest in maintaining the existing covenant. The court was tasked with determining whether the defendants were entitled to costs after unsuccessfully opposing the modification of the covenant. The central issue was whether the defendants, who had objected to the modification of the covenant, were justified in their opposition and thus should not bear their own costs, in line with the principles established in Re Withers.

The court considered the principle articulated in Re Withers, which suggests that an unsuccessful objector in a proper case should not have to bear the burden of their own costs if their objections are not frivolous. The court noted that the defendants had a legitimate interest in the existing covenant, and their opposition was not unreasonable given the significant change sought by the plaintiff. The court also examined the defendants' conduct during the proceedings, finding it to be responsible and proper. The court found that while the plaintiff was successful in its application, the outcome was significantly less than what it initially sought, and the defendants' role in opposing the modification was justified.

Based on the analysis, the court ruled that the defendants were justified in their opposition and should not bear their own costs. It held that the defendants played a proper role in defending the claim, and their objections were not frivolous. Therefore, the court ordered that the plaintiff pay the defendants' costs, to be assessed on a party and party basis. This decision underscores the importance of responsible conduct in legal proceedings and the discretion of the court in determining costs in cases involving modifications of restrictive covenants.

Orders