Stoops v Lefas

[2016] VSC 350

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 02893

PETER JOHN STOOPS	Plaintiff
v
ARTHUR LEFAS	First Defendant
TREVOR GEORGE	Second Defendant
LOUISE PUSCHNER	Third Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2015 and 14 May 2015
DATE OF JUDGMENT:	21 June 2016
CASE MAY BE CITED AS:	Stoops v Lefas & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 350         First Revision: 22 June 2016

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ABUSE OF PROCESS – Appeal from Associate Judge – Whether error in order of Associate Judge to permanently stay proceeding as an abuse of process – Attempt to litigate issue previously determined by VCAT – Restrictive covenant – Application for a declaration under s 84(2)(b) of the Property Law Act 1958 – Whether independent avenue for review under the Property Law Act 1958 – Application of abuse of process to decisions made by VCAT in its review jurisdiction – Application of factors identified in Putt v Perfect Builders Pty Ltd [2013] VSC 600 – Whether clear error in the VCAT decisions – Whether VCAT decisions caused manifest injustice – Appeal dismissed – Supreme Court (General Civil Procedure) Rules 2005, rr 23.01, 23.05, 77.06-77.06.9 – Property Law Act 1958, s 84(2)(b) – Supreme Court Act 1986, ss 17(3), 36

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First and Third Defendants	Mr D. Lloyd	Ellinghaus Weill

For the Second Defendant In person

HIS HONOUR:

Introduction and overview

1. The plaintiff, Mr Peter Stoops, is the registered proprietor of the land at 2 Fenton Crescent, Frankston (‘the property’).  The property is burdened by a restrictive covenant.[1]  Each of the three defendants owns a nearby property.  Each of their properties has the benefit of the restrictive covenant.  Numerous other properties also have the benefit of it.

   [1]Part of the property is burdened by another similarly worded restrictive covenant.  However, the proceeding is brought only in respect of the restrictive covenant arising from Instrument of Transfer 1770776.

1. More than 100 properties in the near vicinity are burdened and benefited by restrictive covenants, of which some are relevantly identical to the one which burdens the property and many others are not dissimilar.  These covenants, including the covenant which burdens the property, were imposed initially in the 1930s and 1940s in connection with the subdivision and sale of certain land by Mr Pompey Elliott, a well-known solicitor and renowned commander of Australian armed forces in the First World War, and by his deceased estate. 

1. Under the relevant part of the restrictive covenant that burdens the property, the proprietor for the time being covenants:

that no gravel or sand shall be dug out of the said land hereby transferred except for the purpose of excavating for foundations nor shall such land be used as a road or street nor shall the said land be used for any purpose other than residential purposes and that not more than one messuage shall be erected on the said land … .

1. Between 2002 and 2012, before this proceeding was commenced, Mr Stoops made various applications to the Frankston City Council and brought various applications to the Victorian Civil and Administrative Tribunal (‘VCAT’) relating, directly or indirectly, to the restrictive covenant.  On more than one occasion, he sought to establish that the restrictive covenant, on its true construction, would not prevent the erection on the property of a block of flats or apartments, as long as certain design features were present.  Mr Stoops was substantially unsuccessful in his applications insofar as they were intended to achieve his ultimate aim of establishing an entitlement to build a block of flats or apartments on the property.[2]  In one of these applications to VCAT, which was heard by Member Komesaroff over two days in 2003, Mr Stoops was represented by senior counsel.  He then brought another application to VCAT which was dismissed by Senior Member Byard in 2004 as a colourable attempt to achieve an overruling of the decision made by Member Komesaroff in 2003.[3]  Mr Stoops’ campaign resulted in the making and publication of additional reasoned decisions by VCAT in 2006,[4] 2008[5] and 2009.[6]  Those decisions related to more tangential aspects of Mr Stoops’ quest.  Another related application to VCAT was made by Mr Stoops in 2012.  It was summarily dismissed as misconceived by Senior Member Rickards on 24 August 2012.[7]

   [2]Stoops v Frankston City Council [2003] VCAT 965 (Member Komesaroff).

   [3]Stoops v Frankston City Council [2004] VCAT 591 (Senior Member Byard).

   [4]Stoops v Frankston City Council [2006] VCAT 167 (Member Martin).

   [5]Stoops v Frankston City Council [2008] VCAT 1337 (Senior Member Byard).

   [6]Stoops v Frankston City Council [2009] VCAT 15 (Member Cook).

   [7]VCAT reference number P1652/2012.

1. In June 2013, without legal representation, Mr Stoops commenced this proceeding by originating motion. He sought thereby a declaration under s 84(2)(b) of the Property Law Act 1958 as to the nature and extent of the restriction imposed by the covenant.  In an affidavit filed in support of the originating motion, Mr Stoops deposed that he wished to be in a position to use the property, or alternatively to offer the property for sale, as a property on which one building could be constructed containing shelter for more than one family or household.[8]  He has acknowledged[9] that what he meant, in substance, was that he wished to establish that a block of flats or apartments could lawfully be built on the property, if the abovementioned design features were present. 

   [8]Affidavit of Peter John Stoops filed 6 June 2013, [11].

   [9]Transcript of hearing on 26 March 2015, 19-20 and 58-59.

1. On 15 November 2013 the defendants, being then represented by Russell Kennedy, solicitors, filed an application by summons for an order under Rule 23.01(1)(c) of the Supreme Court (General Civil Procedure) Rules 2005 (as they then stood) that this proceeding be struck out as an abuse of process.  On 2 December 2013, Russell Kennedy ceased to act for the defendants.  On 5 February 2014, the summons came on for hearing before Associate Justice Lansdowne.  The defendants remained unrepresented.  Each of them appeared in person.  A barrister, Mr Mihaly, appeared for Mr Stoops, although there is no indication on the file that Mr Mihaly was instructed by a solicitor.

1. After a hearing that occupied the best part of a day, Associate Justice Lansdowne was satisfied that the proceeding amounted to an abuse of process. The abuse of process, as found, was that the proceeding represented an attempt to litigate a matter which had already been finally determined against Mr Stoops. In that regard, Associate Justice Lansdowne relied principally on the decision which had been given by VCAT against Mr Stoops in the matter heard and determined in 2003, in respect of which Mr Stoops had not commenced any appeal under s 148 of the Victorian Civil and Administrative Appeals Tribunal Act 1998.  Uncontroversially, her Honour determined that the proper form of order to reflect her finding of abuse of process was an order that the proceeding be permanently stayed (rather than struck out).  Her Honour made such an order.

1. On 21 February 2014, Mr Stoops filed a notice of appeal from the order made by Associate Justice Lansdowne.  At that stage Mr Stoops was once again acting for himself, without legal representation.  He has not been legally represented since.  On 27 February 2014, he filed an appeal book which he had prepared himself.[10]

   [10]The appeal book represents a reasonable attempt to comply with Practice Note No. 4 of 2012.  It includes copies of those affidavits and exhibits which Associate Justice Lansdowne said she would have regard to, and it omits those which, by agreement between the parties, her Honour had treated as superseded or unnecessary: see transcript before Associate Justice Lansdowne at pages 1-15.  Unfortunately, some of the copy affidavits in the appeal book are copies of unexecuted versions.  Further, the appeal book would have been considerably easier to use if it had contained an index and tabs, but I note that the Practice Note does not require this.

1. From February 2014 until early November 2014 or thereabouts, the defendants continued to represent themselves.  During that period, on 26 June 2014, the third defendant, Ms Louise Puschner, filed a short affidavit sworn by herself on 24 June 2014.  It contained little more than uncontroversial historical information about the subdivision and sale of the land formerly owned by Mr Pompey Elliott.  On 21 July 2014, the second defendant, Mr Trevor George, filed an affidavit affirmed by him on 16 July 2014.  It really amounted to no more than a submission of the same kind as had already been made on behalf of the defendants before Associate Justice Lansdowne. 

1. On 29 July 2014, Associate Justice Zammit (as her Honour then was) directed that the plaintiff file and serve any written submissions by 26 September 2014 and that the defendants file and serve any written submissions by 7 November 2014. 

1. On 15 September 2014, Mr Stoops filed a 36 page written submission (with 111 footnotes).  It was accompanied by an uncontroversial affidavit of the same date.

1. On 29 October 2014, Mr George filed a written submission of seven pages.  On 3 November 2014, an eight page written submission signed by Mr D. Lloyd of counsel was filed on behalf of the first and third defendants. 

1. In late January 2015, a firm of solicitors, Ellinghaus Weill, came onto the record for the first and third defendants (only). 

1. The appeal came on for hearing before me on 26 March 2015.  Mr Stoops appeared for himself.  The first and third defendants were represented by Mr Lloyd, instructed by Ellinghaus Weill.  Mr George appeared on his own behalf. 

1. At the outset, Mr Stoops told me that he had refined his submissions from his (36 page) written submission of 15 September 2014.  It turned out that he had committed these ‘refined’ submissions to writing and that they occupied 50 typed pages with 117 footnotes.  Mr Stoops explained that what he meant by ‘refined’ was that the new document was ‘refined in its arguments’.  The new document was entitled ‘Submission for the Appellant’ and was dated 25 February 2015.  Mr Stoops had not shown it to his opponents or filed a copy.  He said he had been intending to read it out.  He also said that he had only just finished writing it.[11]  He had copies available which he was happy to provide.  All of this was somewhat unsatisfactory, given that, as mentioned above, Mr Stoops had been directed to file and serve any written submissions by 26 September 2014.  In any event, I stood the matter down for a period to enable Mr Lloyd, Mr George and me to read the new ‘refined’ submissions privately.

   [11]Despite the document being dated 25 February 2015, I accept that it was only finished later.

1. When the hearing resumed, Mr Stoops also sought to rely on two new affidavits.  One was an affidavit affirmed on 18 March 2015 by Laurie Paul Willoughby, a neighbour of Mr Stoops, whose land was burdened by a relevantly identical covenant and who deposed, in effect, that he supported Mr Stoops’ appeal on the basis that Mr Willoughby would benefit if Mr Stoops could proceed with his proposed application for a declaration, in that Mr Willoughby would thereby gain an understanding of the true construction of the covenant affecting his own land.  The other affidavit was an affidavit of Mr Stoops himself affirmed on 25 March 2015 exhibiting a letter from the planning and environment manager of the Frankston City Council.  So far as relevant, that letter indicated that the council would be ‘interested’ to learn of the Court’s declaration on the matters raised by Mr Stoops relating to the meaning and effect of the restrictive covenant.  Mr Lloyd of counsel did not object to my receiving these affidavits, nor, in the end, did Mr George.  Likewise Mr Stoops raised no objection to my having regard to the affidavits which had been filed by Ms Puschner and Mr George in June and July of 2014.  So I treated all of these affidavits as being part of the material before me on the appeal.[12]

   [12]See Rule 77.06.9 of the Supreme Court (General Civil Procedure) Rules 2005 as in force when the appeal was commenced on 21 February 2014.

1. After some further discussion, I formed a tentative view that there might be some basis for considering whether the decision below involved error, albeit mainly with respect to points raised by Mr Stoops that had not been raised by his counsel before the Associate Judge.[13]  However, the claim which Mr Stoops wanted to be free to advance at trial, as set out in the originating motion, was a claim of an entirely theoretical or hypothetical nature.  It did not involve any definite development proposal for the land.  In fairness to him as an unrepresented litigant, I informed him that, in my view, the Court would probably not entertain such a claim in any event and that, if he wished to proceed, he would probably need to put forward a definite building proposal.[14] I also expressed concern that his claim might in any event amount to a claim for a declaration as to a future matter; that, in those circumstances, s 84(2)(b) of the Property Law Act 1958 might not be applicable; and that he might need to rely on the Court’s general jurisdiction and powers to grant declarations.[15]  After considerable further discussion, but ultimately with the agreement of Mr Stoops and with no real dissent from the defendants, I made an order designed to address these problems and to reduce the likelihood of multiple future hearings.  I ordered that the further hearing of the appeal be adjourned to 14 May 2015 before me; that the order of the Honourable Associate Justice Lansdowne made on 5 February 2014 be varied so far as necessary to facilitate the further provisions of my order; that by a specified time the plaintiff file and serve a further amended originating motion confining the proceeding to a claim for a declaration in respect of a clearly defined proposal for the land in question, such as the proposal the subject of the decision given by VCAT in 2003 in the matter referred to above, namely Stoops v Frankston City Council;[16] and that the parties be prepared on 14 May 2015 to advance the cases which, if this proceeding were not stayed, they would respectively advance at the final hearing of the proceeding (as confined in accordance with my order).  The order also contained provisions for the filing and service of outlines of any further submissions in relation to the appeal and outlines of the parties’ proposed submissions in relation to the contingent final hearing.  The outlines in relation to the appeal were not to exceed three pages, and the outlines in relation to the contingent final hearing were not to exceed 10 pages.  Provision was also made for the filing of any further affidavits upon which the parties might wish to rely in either respect. 

   [13]See below in the section dealing with ground 3 of Mr Stoops’ appeal from the Associate Judge.

   [14]ReLongo Investments Pty Ltd [2003] VSC 37 [16]; Prowse v Johnstone [2012] VSC 4 [26]–[31] and see now Blue Concept Pty Ltd v Farnan [2015] VSC 125 [19]–[24] (McDonald J).

   [15]See Prowse v Johnstone [2012] VSC 4 [26].

   [16][2003] VCAT 965.

1. No further affidavits were filed by any party in relation to the appeal from Associate Justice Lansdowne.

1. In his further amended originating motion filed on 15 April 2015, Mr Stoops duly invoked s 36 of the Supreme Court Act 1986 and Rule 23.05[17] of the Supreme Court (General Civil Procedure) Rules 2005[18] (as well as s 84(2)(b) of the Property Law Act 1958) in relation to his claim for a declaration in the contingent final hearing. He substituted for his theoretical or hypothetical claim a claim with respect to the very building proposal (and associated architects’ plans) which had been the subject of the application for review determined by VCAT in 2003.  He exhibited the relevant plans to an affidavit of his own affirmed on 10 April 2015 and filed on 15 April 2015.

   [17]Erroneously cited as ‘Rule 23.07’ in the further amended originating motion.

   [18]These Rules sunsetted and were repealed and replaced later in 2015. The current corresponding provision is Rule 23.05 of the Supreme Court (General Civil Procedure) Rules 2015.  It is in the same terms.

1. On the same day, 15 April 2015, Mr Stoops filed an outline of further submissions for the appeal and an outline of proposed submissions for the contingent final hearing.  (Curiously, each of these documents is dated 16 April 2015.)  However, Mr Stoops circumvented the page limit for the latter.  He did so by exhibiting to his affidavit of 10 April 2015 a copy of a 54 page research paper on restrictive covenants which he had written in 2012 for a course of study at Charles Darwin University.  The research paper had 120 footnotes and a bibliography containing a long list of cases and other references.  It related mainly to the very restrictive covenant in question.  Mr Stoops purported to adopt his research paper, with modifications, as part of his outline of submissions for the contingent final hearing.  The modifications were indicated, in a very confusing way, partly in the outline itself and partly in a 55 page amended version of the research paper on which Mr Stoops also sought to rely.  (By another curiosity, the amended version of the research paper is dated 25 April 2015.) 

1. No further affidavit material at all was filed on behalf of the first and third defendants.  On 29 April 2015, Mr George filed a short affidavit which had been affirmed by him on 24 April 2015.  It was in the nature of a submission on the interpretation of the restrictive covenant. On the same day, Mr George also filed a 10 page written submission dealing with that matter and a three page submission dealing with the appeal.  On 5 May 2015, an outline of five pages prepared by Mr Lloyd dealing with both aspects was filed on behalf of the first and third defendants.

1. On 14 May 2015, the matter duly came on before me for further hearing.  The hearing occupied a whole day and gave rise to 159 pages of transcript.[19]  Despite Mr Stoops’ non-compliance with part of my procedural order, I have had regard to all of his submissions and to all of the affidavit material on which he relies, as well as the submissions and affidavit material relied upon by the defendants.  I have also had regard to all the photocopied authorities and other reference material contained in the two thick folders of such material handed up by Mr Stoops on 14 May 2015, as well as the contents of the two more modest folders of such material handed up by counsel for the first and third respondents. 

   [19]This was in addition to the 84 pages of transcript generated by the hearing on 26 March 2015.

1. In my view, Associate Justice Lansdowne was right to conclude that this proceeding was an abuse of process as it stood at the time of the hearing before her.  Even as re-structured pursuant to my order, the proceeding remains an abuse of process.  It still amounts to an attempt to litigate a matter which should be regarded as having been finally determined against Mr Stoops previously.  Accordingly, the appeal from Associate Justice Lansdowne should be dismissed. 

The nature and grounds of the appeal

1. Mr Stoops’ appeal from Associate Justice Lansdowne may be treated as having been brought under s 17(3) of the Supreme Court Act 1986 and under Rules 77.06 to 77.06.9 (inclusive) of the Supreme Court (General Civil Procedure) Rules 2005 as those rules stood in February 2014.  The appeal is in the nature of a rehearing.  Generally speaking, error by the Associate Judge must be demonstrated before the appeal may be allowed.[20] 

   [20]Oswal v Carson [2013] VSC 355 [11]; Hou v Westpac Banking Corporation [2015] VSCA 57 [44]; cf Mainstream Construction (Aust) Pty Ltd v Carr Electrical Pty Ltd [2014] VSC 317 [53], [80]-[94].

1. Mr Stoops’ self-drawn notice of appeal filed 21 February 2014 divides his grounds of appeal into three paragraphs, with several particulars or sub-paragraphs under each paragraph.  Unfortunately, however, to the extent that there is any order in the setting out of the grounds in the notice of appeal, that order was not followed in any of Mr Stoops’ written or oral submissions relating to the appeal.  Further, his written submissions relating to the appeal tend to be convoluted, repetitious and prolix.   No attempt is made in Mr Stoops’ written submissions to distinguish between arguments that were put to the Associate Judge and those which were not.  It has been quite challenging to come to grips with all of Mr Stoops’ contentions.  In any event, for the sake of achieving some structure in these reasons, I will endeavour to deal with Mr Stoops’ submissions by reference, broadly, to the grounds stated in the notice of appeal. 

Ground 1

1. The overarching contention in paragraph 1 of the notice of appeal is that the Associate Judge ‘erred in her construction of s 84(2)(b) of the Property Law Act 1958’. The grounds set out in particulars (a), (b) and (c) under paragraph 1 are meritless and have been overtaken by events. They were drawn on the basis of the misconception on the part of Mr Stoops referred to above, namely the misconception that, under s 84(2)(b) of the Property Law Act 1958, the Court could and would entertain a claim for a declaration as to the nature and extent of the restriction imposed by the restrictive covenant without ‘a specific factual context’[21] and ‘in the abstract or theoretically’.[22]  Submissions which involved the same misconception had been put to Associate Justice Lansdowne by counsel on behalf of Mr Stoops.  They had been so put in an attempt to distinguish the claim which Mr Stoops wished to bring to this Court from the claim which had been unsuccessfully made on his behalf in the proceeding before VCAT decided in 2003.  Associate Justice Lansdowne was plainly correct in her finding that this was not a proper basis for distinguishing between the two proceedings for present purposes.[23] In any event, by amending his originating motion (in the manner indicated above) after the initial hearing on 26 March 2015 and by making no attempt in his final submissions to rely on the supposed scope for the making of a hypothetical or theoretical decision in a proceeding brought under s 84(2)(b) of the Property Law Act 1958, Mr Stoops must be taken to have abandoned the (misconceived) grounds set out in particulars (a), (b) and (c) of paragraph 1 of his notice of appeal.

   [21]Notice of appeal filed 21 February 2014, grounds of appeal, paragraph 1(a).

   [22]Ibid, paragraph 1(c).

   [23]Re Longo Investments Pty Ltd [2003] VSC 37 [16]; Prowse v Johnstone [2012] VSC 4 [26]-[31]; Blue Concept Pty Ltd v Farnan [2015] VSC 125 [19]-[24] (McDonald J).

1. The remaining particular under paragraph 1 of the notice of appeal is particular (d).  It reads as follows:

There are no known statutory provisions that provide a bar to an application to seek the true construction of a restrictive covenant.

This contention is allied to some of Mr Stoops’ contentions relating to ground 3.  I will come back to it in that context. 

Ground 2

1. The ground contained in paragraph 2 of the notice of appeal amounts to a complaint that the Associate Judge did not apply a sufficiently strict test, or set a sufficiently high ‘bar’, in dealing with the defendants’ application for a permanent stay of the proceeding on the ground of abuse of process.

1. This ground is also devoid of merit.

1. During argument before Associate Justice Lansdowne on 5 February 2014,[24] it was submitted by Mr Mihaly of counsel, on behalf of Mr Stoops, that the ‘striking out of proceedings must be done exceptionally cautiously’.  Mr Mihaly cited the decision of the High Court in 2010 in Spencer v Commonwealth[25] for this proposition.  Her Honour responded: ‘Yes’.  Mr Mihaly then submitted that, likewise, in Fancourt v Mercantile Credits the Court said:[26]

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.

Associate Justice Lansdowne responded: ‘Thank you, I am familiar with those authorities’.  Mr Mihaly replied: ‘Thank you, Your Honour’; and he turned immediately to other matters.  Towards the very end of his submissions, Mr Mihaly referred again to the ‘very high threshold required before your Honour strike an entire proceeding out’.[27] 

[24]Transcript of hearing before Associate Justice Lansdowne, 38-39.

[25](2010) 241 CLR 118 (‘Spencer’).

[26](1983) 154 CLR 87, 99. This passage was cited with approval by French CJ and Gummow J in Spencer 241 CLR 118, 131 [24].

[27]Transcript of hearing before Associate Justice Lansdowne, 62.

1. Associate Justice Lansdowne reserved her decision for a short time at the conclusion of the hearing and then returned to give her judgment that same day, 5 February 2014. Her Honour’s judgment was in due course revised and reduced to writing. At the beginning, her Honour correctly noted that the defendants’ application had been brought under Rule 23.01(1)(c). She then dealt with certain other preliminary matters and proceeded to say:[28]

The first matter to consider in relation to a determination of the [defendants’] application is the test to apply.  I have referred to the rule.  The authorities on all forms of summary determination, as correctly identified by counsel for the plaintiff, say that summary determinations should not be lightly given.  Summary determination means essentially cutting the case off [at] the knees, if I can put it that way colloquially, or at the very beginning, without full argument, and for obvious reasons should not lightly occur and that is the way I approach this application.  I proceed on the basis that the defendants should not be successful if there is any real doubt as to their case.  That is they should only be successful if it is clear beyond real doubt that the proceeding constitutes an abuse of process, and as I have made evident, that is the conclusion I have reached.

Her Honour went on to set out in very clear, careful and detailed terms her reasons for concluding that the proceeding constituted an abuse of process.  Her Honour’s reasons in that regard addressed every point which had been advanced by each of the parties.  No-one suggests the contrary.    

[28]Appeal book, 255. My emphasis.

1. In his submissions relating to ground 2,[29] Mr Stoops selects from the passage of her Honour’s reasons set out above, and refers to, only the following lines:

   [29]Submission for the appellant dated 25 February 2015, [57]-[61] inclusive.

I proceed on the basis that the defendants should not be successful if there is any real doubt as to their case.  That is, they should only be successful if it is clear beyond real doubt that the proceeding constitutes an abuse of process…

Mr Stoops then asserts that her Honour did not provide any legal authority for this ‘test’.  He says that, therefore, the ‘ambiguity’ within the expression ‘beyond real doubt’ cannot be clarified by reference to authority.  He purports to contrast ‘real doubt’ with ‘doubt’.  He submits that a permanent stay on the ground of abuse of process should only be imposed:[30]

(a)       very sparingly;[31] and

(b)       only in exceptional circumstances;[32] and

(c)when it can be ‘…shown obviously that the action is…an abuse of the process of the court’;[33] and

(d)when it is clear that there is no issue to be tried.[34]

[30]My emphasis.

[31]Citing Lawrance v Norreys (1890) 15 App. Cas. 210, 219.

[32]Ibid.

[33]Burton v Shire of Bairnsdale (1908) 7 CLR 76, 98 (Higgins J).

[34]Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99.

1. Plainly, Mr Stoops has taken the Associate Justice well out of context.  Her Honour was not purporting to apply some new or idiosyncratic standard or test of her own, devoid of authority.  Quite the contrary.  She was applying the very authorities that Mr Stoops’ own counsel had urged her to apply.  Her Honour said that counsel had ‘correctly identified’ these authorities.  Her Honour was ‘familiar’ with them.  In this context, her Honour’s use of the expressions ‘if there is any real doubt’ and ‘if it is clear beyond real doubt’ cannot be seen as indicating a departure by her Honour from the principles stated in the authorities to which she had been referred by counsel for Mr Stoops.  Those authorities included Fancourt v Mercantile Credits Ltd,[35] being the most recent of the three cases now cited by Mr Stoops himself in this respect.

   [35](1983) 154 CLR 87, 99.

1. Mr Stoops’ submission on this point is misconceived in another way.  He has selected four phrases used by judges in three decided cases.  (As it happens, all three cases were decided well before Spencer, being the case on which his counsel had principally relied before Associate Justice Lansdowne.)  Mr Stoops then asserts that a proceeding cannot be permanently stayed as an abuse of process unless all four of the ‘tests’ contained in these phrases are met.  There is simply no warrant for such an approach.  The language used by judges in exercising their power to stay a proceeding as an abuse of process is not to be equated to statutory language.  Much less are individual phrases or epithets to be strung together in order to fashion a set of cumulative, quasi-statutory requirements.  I note that slightly different language was used in a quite recent Victorian case involving an attempt to litigate a matter said to have been already finally decided against the litigant, namely Putt v Perfect Builders Pty Ltd.[36]  Indeed, Putt was treated by all parties before Associate Justice Lansdowne as being correct in law and relevant.  The case was decided by Kyrou J (as his Honour then was).  In Putt,[37] by reference to the judgment of French J (as the Chief Justice then was) in Spalla v St George Motor Finance Ltd (No 6),[38] Kyrou J had said:

The power to permanently stay a proceeding as an abuse of process is to be exercised sparingly and upon examination of the relevant circumstances of the particular case.

Hence, if anything, the test or standard applied by Associate Justice Lansdowne to the defendants’ application might have been too strict or too high and thus unduly favourable to Mr Stoops.  It was certainly not too favourable to the defendants. 

[36][2013] VSC 600 (‘Putt’).

[37][2013] VSC 600 [25].

[38][2004] FCA 1699 [70] (‘Spalla’).

1. Ground 2 must be rejected.

Ground 3

1. Paragraph 3 of the notice of appeal asserts that Associate Justice Lansdowne ‘erred in the application of legal principle of State Bank of New South Wales Ltd v Stenhouse Ltd’[39] in that her Honour placed ‘inappropriate weight on certain factors in the determination of “abuse of process” being …’.  Seven paragraphs numbered (a)(i) to (a)(vii) then follow.  There is no paragraph (b) nor are there any other lettered paragraphs. 

   [39](1997) Aust Tort Reports ¶81-423. (‘Stenhouse’).

1. Stenhouse was a judgment of the Chief Justice of the Commercial Division of the Supreme Court of New South Wales, Giles CJ.  It is frequently cited where abuse of process in the form of ‘relitigation’ is raised.  Giles CJ examined a number of earlier decisions in this field.  His Honour then said:[40]

   [40]Stenhouse (1997) Aust Tort Reports ¶81-423, 64,089.

It is apparent from this brief review of the decisions that whether proceedings are, or an aspect of the proceedings is, an abuse of process because a party seeks to relitigate a issue already decided depends very much on the particular circumstances.  The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –

(a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b)the opportunity available and taken to fully litigate the issue;

(c)the terms and finality of the finding as to the issue;

(d)the identity between the relevant issues in the two proceedings;

(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of—

(f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

1. In Putt[41] Kyrou J referred to this passage in the judgment in Stenhouse with approval.  His Honour said that the factors listed by Giles CJ provided a convenient framework for consideration of whether the Putt proceeding constituted an abuse of process. 

   [41][2013] VSC 600 [13]-[14].

1. Before Associate Justice Lansdowne, counsel for Mr Stoops invited her Honour to follow Putt insofar as Kyrou J had adopted the principles set out in Stenhouse.  Associate Justice Lansdowne duly took up this invitation; and the corresponding parts of her Honour’s reasons were structured accordingly.  On this appeal, as the opening words of ground 3 imply, Mr Stoops himself continues to accept that Stenhouse and, in turn, Putt are correct in law.  However, as already indicated, Mr Stoops contends that her Honour misapplied those authorities.

1. What Mr Stoops now says in support of the proposition that the Associate Judge misapplied Stenhouse and Putt can, I believe, be boiled down to three broad points. First, Mr Stoops says that her Honour failed to recognise, or give full weight to, what he contends to be the special nature and usefulness of the statutory ‘avenue’ provided by s 84(2)(b) of the Property Law Act 1958 for interested persons to apply for a declaration as to the meaning of a restrictive covenant.  Second, he says that her Honour wrongly treated the (unappealed) decision of VCAT made in 2003 as constituting a determination that was both ‘judicial’ and ‘final’ for the purposes of the principles relating to abuse of process.  Third, Mr Stoops says that her Honour should have made an assessment whether the 2003 decision of VCAT was wrong in law with respect to the true construction of the restrictive covenant; that she should have found that VCAT’s decision was clearly wrong and had caused him a manifest injustice; and that she should have taken that into account in Mr Stoops’ favour in weighing up the Stenhouse ‘factors’ relating to abuse of process. 

The features of section 84(2)(b)

1. The first of these three broad points may be traced in part to particular (d) of paragraph 1 of the notice of appeal, which is set out above.  It may also be traced to certain sub-paragraphs of paragraph 3, namely —

·sub-paragraph (a)(i), which is to the effect that her Honour ignored ‘avenues’ to make an application under s 84 of the Property Law Act 1958;

·sub-paragraph (a)(ii), which includes a contention to the effect that only ‘the County Court of Victoria or the Supreme Court of Victorian [sic] under the provisions of s 84 of the Property Law Act 1958 can determine the true construction of a restrictive covenant’;

·sub-paragraph (a)(v), which includes a contention that appropriate weight was not given to ‘avenues available to the Plaintiff to seek an answer to a question of law and public confidence in the ability to seek all avenues of redress’; and

·sub-paragraph (a)(vii), which includes a contention to the effect that there was a failure to consider that an appeal from VCAT was not the only ‘cause of action’ and that ‘other legal avenues’ (meaning an application under s 84) were available.

1. Originally, Mr Stoops tried to support the proposition that the ‘avenue’ provided by s 84(2)(b) was special and was to be distinguished from any path to VCAT on the basis, principally, that under s 84 the Court could and would construe a restrictive covenant in the abstract or on a theoretical basis. As pointed out above, Mr Stoops, rightly, no longer maintains that claim.

1. On the other hand, I will assume in favour of Mr Stoops that, apart from the abuse of process question, this proceeding could appropriately be brought under s 84(2)(b) of the Property Law Act 1958 now that Mr Stoops has put forward a particular building proposal supported by architects’ plans (even though there is no evidence as to how likely, or how far in the future, any actual development of the kind proposed might be[42]). 

   [42]Cf Prowse v Johnstone [2012] VSC 4 [26].

1. Section 84 as a whole confers on ‘the Court’ a range of powers in relation to restrictive covenants. Section 3 of the Act provides that ‘Court’ means, in relation to property the value of which does not exceed the jurisdictional limit of the County Court, the County Court or the Supreme Court; and, in any other case, the Supreme Court. Since 1 January 2007 the relevant jurisdiction of the County Court has not been subject to any limit.[43] Hence, in effect, the expression ‘the Court’ in s 84 means the Supreme Court or the County Court.

   [43]Courts Legislation (Jurisdiction) Act 2006, s 3.

1. Thus it is true that only the Supreme Court and the County Court have the jurisdiction and power under s 84(2)(b) to grant a declaration of the kind referred to in that provision.  However, this does not mean that no other court or tribunal can make a declaration as to the meaning or effect of a restrictive covenant.  Quite clearly, the general jurisdiction and power of the Supreme Court itself extends to the making of such a declaration.[44]  The County Court would seem to be in an equivalent position.[45]  Other courts or tribunals which have broad statutory powers to grant declarations, such as VCAT itself,[46] may well be in the same position too. The predecessor of s 84 was introduced in 1918 by s 10 of the Real Property Act 1918.  It was introduced at a time when the general jurisdiction or power of courts to grant declarations was, or was thought to be, much more limited.[47] Originally, the predecessor of s 84 applied only to the Supreme Court. It was later extended to the County Court. In both instances, the purpose was to expand the jurisdiction and power of these courts, not to limit the jurisdiction or power of any other court or tribunal.[48] 

   [44]Prowse v Johnstone [2012] VSC 4 [26] and cases there cited.

   [45]See County Court Act 1958, s 49.

   [46]Victorian Civil and Administrative Tribunal Act 1998, s 124.

   [47]PW Young QC, Declaratory Orders (1984), especially Chapters 1, 3 and 4 and paragraph [313].

   [48]Ibid [1612], [2014].

1. The powers conferred by s 84 are of two broad kinds. Under s 84(1), the Court may discharge or modify restrictions. Under s 84(2), the Court may make declarations about restrictions. In each case, it is provided that the Court ‘shall have power’ to do the thing concerned. It is well established, both as to s 84(1)[49] and as to s 84(2),[50] that the exercise of the respective powers is discretionary. That is to say, the power conferred by s 84(2) is a power to grant, or not grant, a declaration, according to the discretion of the Court. It is true that that discretion, in turn, is to be exercised judicially, but it remains a broad discretion. This view accords with the principles applicable to the exercise of the general jurisdiction or power of courts to grant declarations.[51] 

   [49]Vrakas v Registrar of Titles [2008] VSC 281 [45] (Kyrou J).

   [50]Prowse v Johnstone [2012] VSC 4 [27]; Blue Concept Pty Ltd v Farnan [2015] VSC 125 [19]–[24].

   [51]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Blue Concept Pty Ltd v Farnan [2015] VSC 125 [22].

1. Contrary to Mr Stoops’ submission, it is not significant that there may be no particular statutory provisions expressly limiting the power of the Court under s 84(2)(b) to grant declarations in relation to restrictive covenants or expressly limiting the ability of persons interested to apply for such declarations. The ordinary principles of law still apply, including the principles relating to abuse of process. In Blossomtree Pty Ltd v Brunswick NL,[52] the plaintiff company applied for a mandatory injunction under a provision of the Companies (Western Australia) Code which empowered the Court, on the application of a person with standing, to grant a mandatory injunction against a person who had refused or failed to do an act or thing which the person was required by the Code to do.  The defendant company had refused to send out a certain statutory notice to shareholders notwithstanding that the plaintiff had a right under another provision of the Code to require the company to send out the statutory notice and had demanded that the company do so.  The company contended that the plaintiff had a collateral purpose for making the demand and for seeking to enforce it.  On that basis, the company sought to have the proceeding dismissed as an abuse of process.  The plaintiff contended that, in the circumstances, the Court had no discretion and was obliged to grant the mandatory injunction sought.  Owen J held that the Court’s power was discretionary.  His Honour said that it was not appropriate, except in the clearest case, to interpret a statutory power to grant an injunction as being mandatory upon a superior court which has a general equitable jurisdiction and a general power to grant injunctions.[53] In my view, the reasoning of Owen J must apply all the more strongly to a specific statutory power of a superior court to grant declarations, such as the power conferred on this Court by s 84(2)(b) of the Property Law Act 1958. 

   [52](1991) 4 WAR 480 (‘Blossomtree’): affirmed (1992) 7 WAR 226 (Court of Appeal of Western Australia); cited in Williams’ Civil Procedure Victoria [I 23.01.47].

   [53](1991) 4 WAR 480, 486.

1. The next question in Blossomtree was whether a person who came to court claiming the enforcement by mandatory injunction of a statutory right could ever be said to be acting in abuse of the process of the court.  Most cases of abuse of process to the time of Blossomtree had involved claims for private rights.  However, after examining various authorities, Owen J said: [54]

For my part, I can see no reason why the mere fact that the legal process sought to be impugned is based on the exercise of a statutory right, should prevent a court of superior jurisdiction from striking out a proceeding which, on conventional principles, would be regarded as an abuse of process.  To hold to the contrary would, in my view, be an abdication to the legislature of the inherent power of the court to control its own processes.  Such an application is not warranted either by authority or on general principle.

It is true that Owen J went on to say that the courts should be reluctant to deny an applicant the results of reliance on a (substantive) statutory right and should only do so in exceptional circumstances. However, that is not this case. Section 84(2)(b) is entirely procedural. Mr Stoops has no relevant substantive statutory right. Rather, he approaches this Court seeking the exercise in his favour of its discretionary power to grant or withhold a declaration as to the meaning and effect of the restrictive covenant in question. If his application to this Court is otherwise an abuse of process, the mere fact that he makes the application pursuant to s 84(2)(b) of the Property Law Act 1958 does not relevantly assist him.

[54](1991) 4 WAR 480, 488.

1. Before Associate Justice Lansdowne and in his submissions to this Court, Mr Stoops has referred to the fact that, by virtue of s 84(4) of the Property Law Act 1958, a decision of the Supreme Court given under s 84(2)(b) binds all persons having the benefit of the relevant restrictive covenant. He also refers to the general precedential value of a decision of the Supreme Court and refers to the fact that numerous properties in the near vicinity have the benefit or the burden of restrictive covenants containing relevantly identical or similar wording. However, in my view, these circumstances are of little or no present relevance.

1. The primary question is whether the matter of the true construction of the restrictive covenant has already been finally determined as against Mr Stoops.  It is not whether that matter has been determined in relation to anyone else, even in relation to the other parties to this proceeding, much less third parties.  Fundamental aspects of public policy underlying this area of the law are the principle of finality and the need to protect the proper administration of justice.  Depending on the circumstances, it may well be an abuse of process for a party, who has lost an issue before a competent court or tribunal and has waived or exhausted any right of appeal, to enlist that or any other court or tribunal, at public expense, to deal with the same matter again.[55]  As indicated above, Mr Stoops contends that these considerations do not apply to decisions of the kind made by VCAT in his earlier proceedings.  I will return to that point in the next section of these reasons.  However, for the moment, I note that Mr Stoops did not appeal from either the 2003 decision or the 2004 decision.  He does not suggest that, at those times, there were any personal or other special circumstances inhibiting his ability to appeal.[56] 

   [55]Reichel v Magrath [1889] 14 App Cas 665, 668-669; Hunter v Chief Constable of West Midlands Police [1982] AC 529, 541; Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394, 1397-1398; Mosman Park Town Council v Walker (1991) 73 LGRA 30, 33-36; Sea CultureInternational v Scoles (1991) 32 FCR 275, 279; Walton v Gardiner (1993) 177 CLR 378, 392-394; Coffey v Secretary, Department of Social Security (1999) 86 FCR 434, 443 [25]; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, 410-414.

   [56]He does submit that at, a later time, doubt was thrown on the correctness or finality of the 2003 and 2004 decisions as a result of aspects of his later proceedings in VCAT; and that this justified his waiting until now to approach this Court.  I will deal with that submission later in these reasons.

1. In his outline of submissions for the appeal dated 16 April 2015, Mr Stoops asserts that the process of refusing to grant a planning permit under s 61(4) of the Planning and Environment Act 1987 ‘was never intended by the legislature to restrict an application under s 84 of the Property Law Act 1956’. In support, he refers to s 6A of the Planning and Environment Act 1987 which provides that a planning scheme must not prohibit or restrict the creation, variation or removal of easements or restrictions by agreement, prescription, abandonment or otherwise by operation of law. He says that this indicates that ‘the legislators’ did not want planning provisions to ‘usurp the role of the courts with respect to restrictive covenants’. He mentions a comment made by the Minister in the second reading speech relating to the Bill which introduced s 61(4) of the Planning and Environment Act 1987, that:

Enforcement of covenants is properly left to the courts.

Mr Stoops observes that the enforcement of a restrictive covenant is generally achieved by an injunction.  He says that an applicant for an injunction would ‘reasonably seek’ from the court a declaration that the land in question was being used in a way which breached the relevant restrictive covenant.  He then posits an example where a planning authority or VCAT in its review jurisdiction has determined that a restrictive covenant would not be breached by a proposal for the development of land and has granted a planning permit.  Mr Stoops asks rhetorically: would the owner of property with the benefit of the restrictive covenant be constrained from seeking an injunction for enforcement of the restrictive covenant on the basis that this would be an abuse of process?  He submits that the answer would be ‘no’.  On that basis, he submits that it would be an injustice if a person seeking a declaration with respect to a restrictive covenant burdening his or her land could not do so in the face of a contrary determination by a planning authority or VCAT in its review jurisdiction. 

1. These submissions are unsound. Section 6A of the Planning and Environment Act 1987 says nothing about the interpretation of a restrictive covenant. By contrast, s 61(4) of the Planning and Environment Act 1987 expressly contemplates that a planning authority will need to decide whether a relevant restrictive covenant would be breached by a proposal for which a planning permit was sought.  It may be that, where a party benefited by a restrictive covenant seeks to enforce it in a court, a question of interpretation of the covenant may arise.  But that is of no moment for present purposes.  Turning to the example given by Mr Stoops, I do not accept that the beneficiary of a restrictive covenant could always safely stand by in the face of an application by the proprietor of the burdened land for a planning permit.  In such a case, the beneficiary may possibly lose any right to enforce the covenant.  In any event, where the beneficiary declined to take part in a formal review proceeding at VCAT, or was unsuccessful in (actively) opposing the proprietor’s application in VCAT, the beneficiary may well be bound by the outcome.  That is to say, it may well be an abuse of process for the beneficiary to seek to enforce the restrictive covenant on the basis of an interpretation of it different from that found by VCAT. 

1. Insofar as regard may be had in this case to the position or interests of persons other than Mr Stoops, the interests of principal relevance are those of the three defendants, not the interests of third parties.  The 2003 VCAT proceeding and the 2004 VCAT proceeding each carried potential consequences for the defendants or for their predecessors in title, as persons whose properties had the benefit of the relevant restrictive covenant.  The defendants or their predecessors in title were involved, at least to a substantial extent, in opposing Mr Stoops’ claims in the 2003 and 2004 proceedings in VCAT.[57]  By contrast, if it matters, out of the many potentially interested neighbours, Mr Stoops has only managed to find one neighbour, Mr Willoughby, to support his appeal.  Mr Willoughby was found at the last minute.  He says, in effect, that his interest is based on curiosity alone.  In these circumstances, Mr Willoughby’s position is of minimal significance for present purposes.  The letter from the Frankston City Council also arrived at the last minute.  The Council is now said to be ‘interested’ in the outcome of this case.  Again, the present attitude of the Frankston City Council, not being a party to this case, is of minimal significance. 

   [57]See transcript before Associate Justice Lansdowne (Judgment), 83.

1. In any event, apart from the new material relating to Mr Willoughby and the Frankston City Council, all of these considerations were taken into account by Associate Justice Lansdowne in her reasons.  Her Honour gave them at least their due weight. 

1. Mr Stoops gains nothing in this appeal from his first broad point under ground 3, being his point relating to the particular features of s 84(2)(b) of the Property Law Act 1958. 

The status of the relevant VCAT decisions

1. I turn to Mr Stoops’ second broad point under ground 3.

1. In the relevant part of the notice of appeal (paragraph 3(a)(ii)), it is contended that VCAT is an administrative forum and that it therefore did not finally determine the issue relating to the meaning and effect of the restrictive covenant. 

1. This represents a radical departure from the way in which the matter was argued by counsel for Mr Stoops before Associate Justice Lansdowne. 

1. In the hearing before her Honour, there was discussion and argument not only about abuse of process but also about issue estoppel.  The defendants, who were not legally represented, had not expressly relied on issue estoppel, but her Honour invited the parties to address it, as well as abuse of process.  In the end, issue estoppel was not found.  However, during the discussion, Mr Mihaly referred her Honour to the judgment of Weinberg JA in Morris v Riverwild Management Pty Ltd.[58]  That was principally a judgment about issue estoppel, not abuse of process.  Mr Mihaly relied on it, and also on Putt,[59] for the proposition that it is at least doubtful whether the doctrine of issue estoppel applies to decisions of VCAT given in the exercise of its administrative review jurisdiction, as distinct from its original jurisdiction.[60]  However, Mr Mihaly expressly conceded that an argument of abuse of process based on the prior decisions of VCAT was available in this case.[61] 

   [58](2011) 38 VR 103 (‘Morris’).

   [59][2013] VSC 600 (Kyrou J).

   [60]Transcript before Associate Justice Lansdowne, 58-61.

   [61]Ibid 61-62.

1. Mr Mihaly had previously made another concession as well.  He conceded that the 2003 decision of VCAT necessarily established that the particular proposal which had been put forward in the 2003 proceeding was contrary to the restrictive covenant, in that it involved more than ‘one messuage’.[62]  As already indicated, Mr Mihaly maintained that, nevertheless, the proceeding should be permitted to go forward on the basis that a declaration could still be made as to the meaning of the restrictive covenant on a theoretical or hypothetical basis.[63]

   [62]Transcript before Associate Justice Lansdowne, 57.  See also 33, 39 and 45-47.

   [63]As indicated more than once above, that contention is no longer maintained by Mr Stoops.

1. Before me, neither Mr Lloyd (for the first and third defendants) nor Mr George (for himself) submitted that Mr Stoops was bound in this appeal by the concessions made by counsel on his behalf before the Associate Judge.  Accordingly, I will consider Mr Stoops’ arguments on these points.

1. Mr Stoops submits that the doctrine of abuse of process does not apply to decisions of VCAT given in its administrative review jurisdiction (as distinct from its original jurisdiction).[64]  In this regard, Mr Stoops refers to a passage from the judgment of Kyrou J in Putt.[65]  His Honour, having said that he would first consider abuse of process because it was wider in scope than res judicata and issue estoppel, went on to say:

   [64]Submission for the appellant dated 25 February 2015, especially at [197]-[212]. 

   [65][2013] VSC 600 [12].

This is because a proceeding which seeks to re-agitate matters dealt with in a prior judicial decision may constitute an abuse of process even if the principles of res judicata and issue estoppel do not apply.[66]

[66]Here, Kyrou J cited Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, 201-202 [15]-[16].

Mr Stoops emphasises the expression ‘judicial decision’ in this sentence.  Next, Mr Stoops quotes a sentence from the judgment of Brereton J in In the matter of HIH Insurance Ltd (in liq); De Bortoli Wines (Superannuation) Pty Ltd v McGrath (as liquidator of HIH Insurance Ltd).[67]  Brereton J said: 

[67][2014] NSWSC 774 (‘HIH Insurance Ltd’) [19], omitting citations.

An attempt to relitigate an issue resolved in earlier proceedings in a court of competent jurisdiction may, depending on the facts, involve an abuse of process, even in the absence of an estoppel or res judicata. 

On this occasion, Mr Stoops emphasises the expression ‘in a court of competent jurisdiction’.  Then, turning to the status of VCAT, Mr Stoops refers to the following passage from the judgment of Weinberg JA in Morris:[68]

VCAT is, of course, an independent statutory tribunal.  However, it is not a court.  Insofar as it exercises ‘original jurisdiction’, as it did in this case, it carries out a statutory function that in some ways resembles the exercise of judicial power.  Insofar as it exercises ‘review jurisdiction’, it is plainly engaged in a purely administrative task.

[68](2011) 38 VR 103, 118 [63], citations omitted.

1. Next, Mr Stoops contends that, for the doctrine of abuse of process to apply, the whole of the issue in the new case must have been determined in the prior case.  He cites the judgment of Hunt CJ at CL in Haines v Australian Broadcasting Corporation[69] in purported support of that proposition.  Mr Stoops then says that Associate Justice Lansdowne found only that an ‘essential component of the interpretation now sought in this Court’ had been determined in the previous proceedings in VCAT.  Thus, Mr Stoops says, the ‘whole issue’ requirement was not met.

   [69](1995) 43 NSWLR 404 (‘Haines’), 414.

1. Mr Stoops then refers to a statement of Hunt CJ at CL in Haines[70] to the effect that the tribunal which decided the earlier case must have been an appropriate one to do so. Mr Stoops submits that, because of the provisions of s 84 of the Property Law Act 1958 (as discussed above), only the Supreme Court or the County Court can be regarded as an appropriate tribunal to determine, with finality, the proper construction of a restrictive covenant. 

   [70]Ibid.

1. Mr Stoops is plainly and egregiously wrong in relation to each of these submissions. 

1. It is true that Kyrou J used the expression ‘judicial decision’ in Putt.  However, that usage is to be explained because the matter before his Honour related to a prior decision of the Supreme Court itself, not to a decision of a body other than a court.  There was no occasion for his Honour to consider the situation of a prior decision of a tribunal or other non-curial body.  His Honour did not purport to say anything about what the situation may be in such a case.  A corresponding explanation applies to the use by Brereton J of the expression ‘in a court of competent jurisdiction’ in the HIH Insurance Ltd case.  

1. Moreover, an examination of the cases cited by Brereton J in this connection in HIH Insurance Ltd exposes the error in Mr Stoops’ submission.  One of those cases was Sea Culture International v Scoles.[71]  The relevant part of that decision is the following sentence from the judgment of French J (as the Chief Justice then was):[72]

   [71](1991) 32 FCR 275.

   [72]Ibid 279 (emphasis added).

An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.

Another case cited by Brereton J was Coffey v Secretary, Department of Social Security,[73] in which the Full Court of the Federal Court had said:

[73](1999) 86 FCR 434 (‘Coffey’), 443 (emphasis added).

An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel: see Sea Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner (1993) 177 CLR 378 at 393-394.

It is of critical importance for present purposes to appreciate that in Coffey the prior decisions in question were administrative, not judicial, in nature.  Indeed, for constitutional reasons, they were required to be so.  They related to an original decision made by an officer of the Social Security Department to the effect that an amount overpaid to Mr Coffey by the Department was recoverable.  That decision was affirmed by an authorised review officer.  It was later affirmed by the Social Security Appeals Tribunal.  Mr Coffey applied to the Administrative Appeals Tribunal (‘AAT’) to review the affirmed decision but his application for review was dismissed.  He did not appeal from that decision.  Some years later, Mr Coffey applied to the AAT to review the Secretary’s decision ‘not to allow a review of validity of overpayment due to lack of worth’.  The AAT decided that it did not have jurisdiction to hear the application, and dismissed it.  Mr Coffey did not appeal from that decision.  With that background, the Full Court of the Federal Court said:

In the present case the circumstances are these.  First, the Parliament has made available a comprehensive and multi-level process for the review of decisions under the Act.  Secondly, the appellant has had three reviews under the procedures thus made available.  Thirdly, the respondent and his officers have been vexed already by these reviews, especially those before the two Tribunals.  In our view, for the Court to allow the appellant to relitigate his claim that the respondent was not entitled to withhold from his benefits the amount of the alleged overpayment, would be to permit its process to be employed in a manner unfair to the respondent.  The maintenance of the debt claim is an abuse of process, and should be dismissed.

1. What was said by the Full Court of the Federal Court in Coffey can readily be applied to VCAT because the review jurisdiction of VCAT corresponds directly with the jurisdiction of the (Commonwealth) AAT.  VCAT succeeded to the jurisdiction of the Victorian Administrative Appeals Tribunal in 1998.  Its jurisdiction, in turn, had been modelled on that of the Commonwealth AAT. 

1. There is nothing to the contrary in the passage from the judgment of Weinberg JA in Morris set out above.  The fact that the exercise of VCAT’s review jurisdiction represents a ‘purely administrative task’ does not mean that the same may not involve the final determination of an issue for the purposes of the doctrine of abuse of process.  That was recognised by Mr Mihaly in the concession which he made in this regard before Associate Justice Lansdowne.  I note that, later in the judgment of Weinberg JA in Morris, his Honour refers, without a hint of disapproval, to a comment made by the eminent author Professor Pearce, in his text Administrative Appeals Tribunal,[74] to the effect that, whether or not estoppel applies in relation to the decisions of the Commonwealth AAT, an attempt to re-litigate previously determined issues can be a basis for dismissing an application as frivolous or vexatious.[75]  

   [74](2003).

   [75](2011) 38 VR 103, 119-120 [73].

1. In any event, the judgment of the Full Court of the Federal Court in Coffey puts beyond doubt the proposition that a proceeding in VCAT, including a proceeding in its review jurisdiction, can, depending on all the circumstances, form the basis for a finding that a later proceeding is an abuse of process.[76]  

   [76]Coffey was recently cited by the High Court with apparent approval in Tomlinson v Ramsey Food Processing Ltd (2015) 323 ALR 1 [26].

1. Mr Stoops’ contention that, for the purposes of the doctrine of abuse of process, the whole of the issue in the new case must have been determined in the prior case is simply not supported by anything said by Hunt CJ in Haines.[77]  Quite the contrary.  The doctrine of abuse of process may be applied so as to preclude either the whole or a part of the new proceeding.  A part of the new proceeding may be precluded where it corresponds to ‘an issue’ determined in the earlier case.[78]

   [77](1995) 43 NSWLR 404.

   [78]Ibid 414.

1. Mr Stoops’ submission that VCAT was not an appropriate tribunal to decide, or to decide finally, the issue relating to the construction of the restrictive covenant is likewise entirely wrong. It is based on the proposition, rejected above, that because of the existence of s 84(2)(b) of the Property Law Act 1958, only the Supreme Court or the County Court can give a final and binding decision as to the proper interpretation of a restrictive covenant.  On the contrary, in an appropriate case, VCAT has the capacity to make a final determination involving the interpretation of a restrictive covenant.  The matter determined by Member Komesaroff in Stoops v Frankston City Council[79] in 2003 was just such a case. Member Komesaroff was conducting a preliminary hearing to consider a question of law arising from an application by Mr Stoops under s 77 of the Planning and Environment Act 1987 to review a decision by the Frankston City Council to refuse a permit for the land at 2 Fenton Crescent, Frankston, to be developed by way of the construction of a building containing four residential units. Subject to a presently irrelevant exception, s 61(4) of the Planning and Environment Act 1987 expressly prevented a responsible authority from granting a permit for anything which would result in a breach of a registered restrictive covenant.  Frankston City Council had refused the permit by reference to that provision.  As mentioned above, Mr Stoops was represented at this hearing by senior counsel and the hearing lasted some two days.  In her decision, Member Komesaroff examined the issue in detail and with extensive reference to the case law on which the parties had relied.  Her Honour determined that the proposal would offend the restrictive covenant.

   [79][2003] VCAT 965.

1. The proceeding before Senior Member Byard in 2004[80] arose from a failure by Frankston City Council, within the prescribed time, to make a decision regarding the grant of a permit to Mr Stoops in relation to a proposal that was claimed by Mr Stoops to be materially different from the proposal dealt with by Member Komesaroff in 2003. Senior Member Byard determined that the small difference in the new proposal was in fact immaterial. He was satisfied that the new proposal was barred by the restrictive covenant and that therefore s 61(4) of the Planning and Environment Act 1987 applied to the same extent as it had in the previous case. 

   [80]Stoops v Frankston City Council [2004] VCAT 591.

1. As I have mentioned above, Mr Stoops did not appeal from either decision under s 148 of the Victorian Civil and Administrative Tribunal Act 1998.  He did not challenge either of them by way of judicial review or otherwise. 

1. Mr Stoops contends that the status of the 2003 and 2004 decisions of VCAT was brought into doubt in a later proceeding of his in VCAT. He refers in particular to the 2009 proceeding before Member Cook. That was an application under s 79 of the Planning and Environment Act 1987 in relation to a failure by the Frankston City Council to grant a planning permit within the statutory period.  The application was for a permit to amend the restrictive covenant presently in question by removing certain provisions from it, including the provision that the land shall not be used for any purpose other than residential purposes.  After the application to VCAT was commenced, the Council actually made a decision on the application.  Its decision was to refuse the permit.  Subsequently, the Council, through its solicitors, lodged a submission with VCAT.  In the submission, the solicitors expressed concern that if the residential purposes restriction was removed, the land would be able to be used for a purpose such as a childcare centre.  The Council submitted that a ‘messuage’ could accommodate such a purpose.  The solicitors further submitted on behalf of the Council that it was ‘unclear’ what the term ‘messuage’ meant and that the Council was concerned that ‘messuage’ may mean more than merely a dwelling.  Member Cook, in her decision, accepted the Council’s submission in this regard.  She said:[81]

In theory, if the covenant was varied in the manner proposed by Mr  Stoops, a non-residential building (or even buildings) could be constructed on the subject land and used for say, a medical centre or childcare centre if the zoning and overlay controls were otherwise complied with.

Member Cook affirmed the decision of the Council to grant no permit. 

[81]Stoops v Frankston City Council [2009] VCAT 15 [22].

1. Mr Stoops submits that there is conflict between, on the one hand, the 2003 and 2004 decisions of VCAT and, on the other, the submission by the Council to the 2009 hearing of VCAT and the acceptance or partial acceptance of that submission by Member Cook, as indicated above.

1. In my view, there is no conflict.  Member Komesaroff did not say in terms that the word ‘messuage’ always and in every context meant house or dwelling or household.  Rather, in my view, she determined that the word carried those connotations in this particular restrictive covenant.  In any event, it is crystal clear that Senior Member Byard treated the word ‘messuage’ in that way.  I will return to this point when I come to Mr Stoops’ third broad point under ground 3.  However, I would indicate at this stage that I do not accept that Mr Stoops’ omission to challenge the 2003 and 2004 decisions of VCAT in a timely way can be in any way excused by what he describes as the ‘problem’ that the ‘contradiction’ in the ‘value judgments’ of VCAT only came to light in 2009, well after the expiry of the time for applying for leave to appeal in the matters heard in 2003 and 2004.[82]

   [82]Submission for the appellant dated 25 February 2015, [136].

1. The proposal the subject of the present proceeding is identical to the proposal that was dealt with in the 2003 decision of VCAT. 

1. In these circumstances, Mr Mihaly was entirely correct in conceding before Associate Justice Lansdowne that the 2003 decision of VCAT ‘necessarily established’ that this proposal was contrary to the restrictive covenant.[83] 

   [83]Transcript before Associate Justice Lansdowne, 57.  Mr Mihaly also conceded that the 2003 decision by VCAT would have been ‘final’ for the purposes of the doctrine of issue estoppel: transcript before Associate Justice Lansdowne, 54.

1. It follows that the second broad point raised by Mr Stoops under ground 3 of this appeal must fail. 

Whether the VCAT decisions were manifestly wrong

1. As mentioned above, Mr Stoops’ third broad point under ground 3 is to the effect that the relevant decisions of VCAT were clearly wrong and that they caused him a manifest injustice.  This point can be related to factor (g) of the Stenhouse factors adopted by Kyrou J in Putt, namely:

(g)an overall balancing of justice to the alleged abuser against the matters supportive of an abuse of process. 

1. The following sentence in the judgment of Hunt CJ at CL Haines is also apposite:[84]

There may also be circumstances where, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice. 

On the other hand, it is clear from that sentence that it will be an unusual case where a moving party will be able to overcome the absence of an appeal. 

[84](1995) 43 NSWLR 404, 414.

1. I should say immediately that no point of this kind was advanced to Associate Justice Lansdowne by counsel for Mr Stoops.

1. On a very generous reading, one may find a basis in sub-paragraph 3(a)(vi) of the notice of appeal for Mr Stoops’ third broad point.  That sub-paragraph asserts that there was ‘a failure to appreciate the consequences of a permanent stay on the applicant who has sought a declaration from the Court’.  In any event, the defendants accepted before me that Mr Stoops should be permitted to run the point.[85] 

   [85]Transcript of the hearing on 14 May 2015, 107.

1. The mere circumstance that the earlier decision could possibly be wrong is no basis for refusing to dismiss a proceeding as an abuse of process on ‘relitigation’ grounds.  Otherwise, no proceeding could ever be dismissed as an abuse of process on ‘relitigation’ grounds.  There would always have to be a full consideration of the substantive issues raised in the proceeding.  That simply cannot be so.

1. Mr Stoops has unleashed a veritable avalanche of cases, reference materials and propositions in an endeavour to persuade me that the decisions arrived at by Member Komesaroff and Senior Member Byard were clearly wrong in law.  However, he has not suggested that either Member Komesaroff or Senior Member Byard overlooked some ‘binding authority’.  In fact, none of his arguments appear especially new or fresh at all.  He does says that the decisions have caused him ‘manifest injustice’, but only because, in his submission, they were clearly wrong.

1. In the proceeding before VCAT in 2003,[86] Mr Stoops was represented by Mr Gobbo QC, a barrister of great eminence in the fields of property law and planning.  Mr Gobbo’s arguments were certainly respectable.  But, in my view, Member Komesaroff was not bound to accept them.  The arguments put on behalf of the Frankston City Council were at least equally respectable.  It cannot be said that the conclusion arrived at by Member Komesaroff was clearly or plainly wrong.  To the contrary, I am inclined to the view that the Member’s conclusion was correct.  The same view was taken by Senior Member Byard in the 2004 decision.

   [86][2003] VCAT 965.

1. Member Komesaroff described Mr Stoops’ building proposal in her decision.   Mr Stoops has not criticised the accuracy of the description.  It was as follows:[87]

   [87]Ibid [2]-[5].

It is proposed to erect a large building on the subject land, comprising four dwellings.  Two of these are at ground floor level, and two at first floor level.  A single front door opens onto a small entry lobby, which provides the means of access to each of the dwellings.  To get to that small entry lobby, one needs to walk through a car park, which is contained within the building.  There is no direct means of access between the four dwellings, other than by way of the lobby on each level. 

The development is unusual in that one needs to walk through an enclosed car park before one accesses the entry door and lobby to the four units.  As the land slopes down towards the rear, and as there are extensive views of the bay from the rear, it has been decided to construct the building with the car park at the front, so the dwellings get the views.  The layout adopted also has a lot to do with the word ‘messuage’ which is pivotal to the consideration of this case.  The features of this layout include:

(a)a shared external entrance way;

(b)a common central passageway [lobby], off which the entrances to the individual units are positioned;

(c)shared areas of communal open space in addition to private open space;

(d)a common staircase and elevator leading to an upper floor;

(e)dividing walls between the units which cannot be easily divided vertically;

(f)a single roof over the entire structure; and

(g)a shared area for carparking, with a single vehicular entrance and exit, and a shared single pedestrian exit from the carpark into the communal part of the building.

Mr Gobbo conceded that one could subdivide the building into four separate titles plus common property owned by a body corporate.

It is clear that the building is to be used by four different household groups sharing an undercover carpark, BBQ area and garden plot.

1. The Member went on to summarise the arguments advanced by Mr Gobbo QC.  Again, Mr Stoops has not criticised this summary.  The Member said this:[88]

   [88]Ibid [12]-[18].

Mr Gobbo QC submitted from the dictionary definitions that ‘messuage’ can be understood as either land containing house and appurtenances within a curtilage or merely a building itself (structure).  He added that messuage is not limited to residential premises, for which he relied upon an Irish competition law case.

He said messuage is a very broad word, connoting a building, and not limited to the number of households in that building.  He said messuage is a building, different to a house, different to a dwelling house, which, in turn, is different to a dwelling, but that even if it is a house or a dwelling house, it can accommodate more that one single domestic household group therein.  For this proposition he relied upon the more recent case law in Natraine; and Longo, although neither of those cases used the word messuage in their covenant.

He said that it is only the use of the word dwelling which is the ‘single household’ concept, i.e. the purpose of the use concept.  He argued that dwelling house refers to the structure, not the use.

Mr Gobbo QC distinguished the cases he analysed on whether their covenants restrained use or development (form of structure).

Mr Gobbo’s fundamental argument was that a careful consideration of the covenant in this instance, indicates that whilst the form of the building to be erected on the land was to be limited to a single structure, its use could be for more than one residence or dwelling – the only limitation being that all of the use or uses of the structure be for residential purposes. 

Another of Mr Gobbo’s fundamental arguments was that the covenant should be strictly construed.  He said the evidence suggests that the term ‘messuage’ was used deliberately, as it would equally have been open for the covenant to refer instead, or in addition, to the term ‘dwelling house’ (as did the next transfer out of the parent title), or to use some other term such as ‘dwelling’ or some other term in common use at the time, if it were intended that the structure should not house more than one domestic household group.  His submission effectively equates one messuage with one building.

I agree that the way the covenant is worded, there is a distinction between the use of the land, which is clearly limited to residential use (but not necessarily to a single  residential use or single household domestic use), and the construction on the land, which is limited to one messuage.  The burning question is whether the word messuage is limited to a single household structure or can be understood as a multiple household structure (four flats housed within one building). 

1. The arguments of the responsible authority and the objectors were summarised as follows:[89]

Ms Lane submitted that all the cases relied upon by Mr Gobbo QC, where the covenant uses the word ‘house’, ‘building’, ‘dwelling house’ or ‘dwelling’ are not on point.  The only useful precedent  to be relied upon is one that uses the word messuage, eg Rogers v Hosegood [1900] 2 Ch. 388 @ 393,4.

Ms Lane also submitted that the Irish conception of the word, relied upon by Mr Gobbo QC, is equally unhelpful, and that local examples of use of the word should be relied upon, such as the High Court in the Royal Sydney Golf Club case, which is closer to our local understanding. 

[89]Ibid [19]-[20].

1. Member Komesaroff then turned to certain dictionary definitions.  She said:[90]

   [90]Ibid [21]-[29].

In considering the ordinary meaning of words, it is customary for courts and tribunals to have regard to dictionary definitions.  Here follows a list of the definitions provided by both parties as well as researched by the Tribunal.

The Complete Oxford English Dictionary, 1933 edition, contains the following definition:

Originally, the portion of land intended to be occupied, or actually occupied, as a site for a dwelling house and its appurtenances.  In modern legal language a dwelling house with its outbuildings and curtilage and the adjacent land assigned to its use.

The Shorter Oxford English Dictionary (1944 edition) indicates that the word ‘messuage’ was probably derived from Norman French, being a corruption of the word ‘menage’, which means a household, or a group of people living together as a unit.  The definition reads as follows:

Orig., the portion of land intended as a site for a dwelling-house and its appurtenances.  In mod. Legal use, a dwelling-house with its outbuildings and curtilage and the adjacent land assigned to its use …

The Macquarie Dictionary (1991 Edition) suggests the same Norman French etymology, and a substantially similar definition:

Law.  a dwelling house with its adjacent buildings and the lands appropriated to the use of the household.

The following definitions of ‘messuage’ are taken from Butterworths Encyclopaedic Legal Dictionary:

1.        Property comprising a dwelling house with all curtilages, outbuildings and land used for the purposes required by the household such as gardens, orchards, ornamental and vegetable gardens.

2.        A house, or similar structure, together with as much land as is necessary for the convenient and comfortable enjoyment of the house:  Draper v South Australian Railways Cmr [1901-3] SALR 150.  Often used in combination with ‘tenement’ (as in ‘messuage or tenement’), the combined words comprehend both the house itself and the surrounding garden or yard belonging to or occupied along with the house:  Thomas v Bergin [1986] 2 Qd R 478 at 480.

In Osborne’s Legal Dictionary it is described as “a house, including gardens, courtyard, orchard and outbuildings”.

In Words and Phrases Legally Defined Volume 3, Butterworths, 3rd edn, 1989:

It appears to me that the term message denotes all that is occupied together at one and the same time, and no more.  ‘Kerslake v White (1819) 2 Stark 508 at 509, per Abbott CJ.

We think, that although the word messuage may, there is no necessity that it must, import more than the word dwelling-house;  with which word it is frequently put in apposition and used synonymously.  The ordinary language of conveyances is sufficient proof of this, in which “all that messuage or dwelling-house” occurs as a constant description…….  If the word messuage is referred to in the old book called Termes de la Ley, it will be found that “a house and a messuage differ, in that a house cannot be intended other than the matter of building;  but a messuage shall be said , all the mansion place, and the curtilage shall be taken as parcel of the messuage”  showing only that it is more comprehensive where there is any thing besides the building.  Fenn v Grafton (1836) 2 Bing NC 617 at 618, 619, per Tindal CJ.

Australia In conveyancing the expression “messuage” means not only the house itself but the outbuildings, courtyard, garden and adjacent land used and occupied with it. ‘Royal Sydney Golf Club v Federal Comr of Taxation (1955) 91 CLR 610 at 625, per cur.

Although the Permit Applicant pointed out the changes to the Victorian planning scheme definitions of dwelling, flat, residential building, apartment house and boarding house, which I had traced through in VBI Properties Pty Ltd v Port Phillip City Council [2000] VCAT 885 @13 - 19, I have not relied on that analysis because this case relies upon the word messuage and it is dangerous to apply different words with their specific statutory definitions to words used in non-statutory parlance. 

The strong impression I have reached as a result of dictionary definitions, is that messuage relates to a single household unit occupying a house, its appurtenances  (such as swimming pool, outhouses, sheds, etc) and its surrounding garden and yard.  This impression is supported by the High Court of Australia in Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610.

1. Under the heading ‘Analysis of the case law’, Member Komesaroff said:[91]

   [91]Ibid [30]-[39].

Many cases were referred to me, most of which did not incorporate the word messuage in their covenant.  The cases which I have found persuasive as being more on point, are:

(i)those cases which use the word messuage rather than just house, dwelling house, building, dwelling;

(ii)those cases which use the word messuage as a structure; and

(iii)local or English case law, as opposed to Irish competition case law;

(iv)those cases which use the prefix one instead of the prefix 'a' before the word messuage or house.

One such case is Rogers v Hosegood [1900] 2 Ch. 388 @ 393,4 where the purchaser covenanted:

That no more than one messuage or dwelling-house with such suitable outhouses and stabling (if any) as it might be thought fit to erect in connection therewith, should at any one time be erected or be standing on the Thorney House plot and that such messuage should be adapted for and used as and for a private residence only.

It was proposed to erect a building containing between thirty to forty flats (eight per floor) with one front entrance, and a common corridor, stairs and lift, into which the flats opened.  It was not proposed that any flat should open directly into the street. 

Farwell, J. of the lower court, which was upheld on appeal, asked:

Is the building proposed to be erected one messuage or dwelling-house or several?

and held:

In my opinion, a flat such as is proposed is not one messuage or dwelling-house, but several……..In my opinion, a large building which is to be used as thirty or forty separate residential flats does not answer the description of a messuage to be used as and for a private residence. 

The Court of Appeal also opined at page 409 that:

the building proposed is certainly not one messuage or dwelling-house only adapted for and used as a private residence neither does it seem to us to constitute several separate dwelling-houses 'adapted for and used as private residences only' within the meaning of the covenant.  We think that residential flats, involving the use of a public entrance and staircase, do not answer the description of private residences contemplated by the words quoted.  The covenant must, we think, be construed in an ordinary or popular, and not in a legal and technical sense; and we do not think that residential flats, though for many purposes separate dwelling-houses, come within the popular description of the class of buildings which it was intended to permit.

If one applies the dictionary definitions that existed at the time of the transfer in 1940,  with their strong inference of a 'house and garden plot' occupied by a single household, and adds to that the habendum of Rogers v Hosegood, the irresistible conclusion is that the proposal breaches the covenant in this case. 

Kimber v Admans [1900] 1 Ch. 412 @ 413 supports my opinion, because Cozens-Hardy, J. considered that a number of flats in one building may also be for certain purposes regarded as a number of separate messuages.  Kimber's covenant used the different word house instead of messuage and therefore came to an opposite conclusion to Rogers v Hosegood as regards the construction of flats, but supported Hosegood's ruling on the word messuage. 

Ingberg v Bayside CC [2000] VCAT 2407, a decision of Bruce DP 30 November 2000, is also instructive in that there it was automatically considered necessary to vary a similar restrictive covenant to allow two residences instead of one, for which a planning permit had already been obtained. Ingberg's covenant read:

…and that no more than one messuage or dwelling house with suitable outhouses shall at any time be erected or standing on the said land hereby transferred.

Longo Investments Pty Ltd [2003] VSC 37 per Osborn, J., although not considering the word messuage, supports the opinion to which I have arrived, because it dealt with whether a hostel for aged residential group care contravened a restrictive covenant permitting one main dwelling house. Osborn, J. held that the form of the building, used as one large aged care household instead of a number of separate households, did not contravene the covenant. 

I am of the opinion that the proposal will offend the restrictive covenant.

1. In his submissions,[92] Mr Stoops submits that Member Komesaroff erred in her construction of the word ‘messuage’, and, consequently, in the construction of the subject restrictive covenant, because of:

   [92]Appellants’ outline submission with respect to the construction of the subject restrictive covenants dated 16 April 2015 [24]-[25].

(a)   an overreliance on dictionary definitions;

(b)   an alleged misreading or misapplication of Kimber v Admans[93] insofar as the restrictive covenant considered in that case used the term ‘house’;

[93][1900] 1 Ch 412.

(c)    an alleged failure to appreciate points of distinction between Rogers v Hosegood[94] and the present case;

[94][1900] 2 Ch 388.

(d)  an alleged assertion by Member Komesaroff that in a situation of ambiguity a restrictive covenant should be construed in favour of the covenantee, not the convenantor. 

On these bases, Mr Stoops contends that Member Komesaroff erred when she said:

If one applies the dictionary definitions that existed at the time of the transfer in 1940,  with their strong inference of a 'house and garden plot' occupied by a single household, and adds to that the habendum of Rogers v Hosegood, the irresistible conclusion is that the proposal breaches the covenant in this case. 

1. Mr Stoops proceeds to put forward a construction of the covenant whereby the requirement that there be not more than  ‘one messuage’ used for ‘residential purposes’ would allow for a single main building containing any number of self-contained residential apartments, as long as the design has a single front door to the street and ‘internal communication’ (by which Mr Stoops means that the doors to each apartment can all be reached without leaving the building, by means of common indoor areas including a lobby, staircase and/or lift).  More specifically, Mr Stoops has identified the following features as being the only necessary requirements for a building containing multiple apartments to be considered a single messuage:[95]

(a)a common locking front door to the street, controlled by the occupants;

(b)a communal hallway and passageways, off which the entrances to the individual units were positioned;

(c)common staircases and elevator leading to each of the floors; and

(d)possibly a single roof over the main building excluding outbuildings (if any) associated with its use of the main building.

[95]See the submission version of Mr Stoops’ research paper, 49.

1. According to Mr Stoops, the covenant distinguishes between provisions directed to use and provisions directed to physical form.  Mr Stoops argues that ‘one messuage’, as used in the context of the covenant, refers only to the physical form and character of the totality of the land, including any buildings constructed on it.[96]  By contrast, he says, the only restriction on the use that the land may be put to is that it must not be used for purposes other than ‘residential purposes’.  Mr Stoops goes on to say that a building occupied by multiple households is still being used for ‘residential purposes’ and so does not contravene the covenant in that respect.[97] 

   [96]He refers to the definition of ‘land’ in the Acts Interpretation Act 1901 (Cth); Methuen-Campbell v Walters [1979] QB 525, 544; and Hill v Grange (1555) 1 Plowden 164, 170.

   [97]Citing Re Derhams’ Application [1961] VR 174 (Gavan Duffy J); Munns v Watson [1937] VLR 178.

1. As regards the meaning of ‘messuage’, Mr Stoops submits that it is a legal term of art bearing a specific meaning when used in a conveyancing context.  Mr Stoops relies on the test identified by the New South Wales Court of Appeal in Pheonix Commercial Enterprises Pty Ltd v City of Canada Bay Council to say that ‘messuage’ should be approached as a legal term of art, namely:[98]

   [98]Pheonix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 [174].

If the document in question is drawn by a lawyer, is manifestly intended to effect a legal transaction, and uses an expression that is not an expression in common use but that has a meaning in an area of legal discourse that is relevant to the document in question, that in itself provides a basis for the reasonable reader concluding that that expression is used in its special legal sense, unless there are other factors present that show it is not used in that special legal sense.

Mr Stoops submits that the use of the word ‘messuage’ in the covenant satisfies each of those criteria, and should be treated as bearing a specific legal meaning.  He points out that in Royal Sydney Golf Club v Federal Commissioner of Taxation,[99] the High Court indicated that the term ‘messuage’ bears a specific meaning in conveyancing:[100]

in conveyancing the expression ‘messuage’ means not only the house itself but the outbuildings, courtyard, garden and adjacent land used and occupied with it.

[99](1955) 91 CLR 610 (‘Royal Sydney Golf Club’).

[100]Ibid 625 (emphasis added). Also citing Thomas v Bergin [1986] 2 Qd R 478, 480 (in which it was said that ‘house’ and ‘messuage’ have been treated as synonyms on various occasions).

1. Otherwise, Mr Stoops seeks to downplay the relevance of this passage from Royal Sydney Golf Club,[101] which is a passage heavily relied on by the defendants.  Mr Stoops says that the passage does not directly address whether the term ‘messuage’ refers to a building in which only one household can reside, or whether it refers to a building which can accommodate multiple households.  Mr Stoops submits that other case law and authorities must be looked to in order to determine this.  He says that dictionary definitions should not be given much weight in this regard, as such definitions are not binding upon the Court and should only be used to the extent necessary to refresh the Court’s memory.[102]  Mr Stoops urges me to rely on the description of ‘messuage’ given in Kerslake v White,[103] in which it was said that:

   By the demise of a messuage with all rooms and chambers thereto belonging and appertaining, is to be understood all that is occupied together, as the entire messuage at one and the same time.

   Mr Stoops focuses on the reference ‘all rooms and chambers’ as being a reference to separate apartments.  This interpretation is derived from the comment of Tindal CJ in the 1836 case of Fenn v Grafton,[104] which was a case concerning an injury to a ‘messuage and premises’ said to be in the possession of the plaintiff.  There was a question as to whether the plaintiff was relevantly possessed of the whole messuage when he had only the separate use and occupation of one floor and some other parts of the house, with the defendant having separate use and occupation of the remainder.  Tindal CJ said that:

   although the word messuage may, there is no necessity that it must, import more than the word dwelling-house; with which word it is frequently put in apposition and used synonymously…And if the declaration had stated that the Plaintiff was lawfully possessed of a certain dwelling-house, there can be no doubt upon the authority of Lord Coke, 3 Inst. 65, and many other authorities, the evidence would have supported the allegation: “Likewise,” he says, “a chamber or room, be it upper or lower, wherein any person does inhabit or dwell, is domus mansionalis in law.”

   Mr Stoops relies on the emphasised part of that passage, namely the reference to a ‘chamber or room’ being domus mansionalis, as a finding that a ‘chamber’ or ‘room’ can be a separate, self-contained apartment within a messuage.[105]

   [101](1955) 91 CLR 610.

   [102]Citing Joske v Dental Cash Order Co. Pty Ltd (1917) 21 CLR 172, 178.

   [103](1819) 2 Starkie 508, 509 (emphasis added).

   [104](1836) 2 Bing. (N.C.) 617, 238 (emphasis added); cf Monks v Dykes [1839] 4 M&W 567, 569-570: In considering whether the defendant was possessed of a dwelling house, or merely a lodger, Parke B referred to Fenn v Grafton (1836) 2 Bing. (N.C.) 617 and stated that that case ‘only decides, what is quite correct, that a messuage and a dwelling-house are substantially the same things, and therefore that if rooms be so occupied as to be in fact a dwelling-house, they may be described as a messuage’.

   [105]Citing also the Conveyancing and Law of Property Act 1884 (Tas), s 75A(3); and the Macquarie Dictionary definition of ‘chamber’ which is ‘a room or apartment, usually a private room, and especially a bedroom’ (emphasis added).

2. For the separate chambers and rooms to be considered a single messuage, Mr Stoops says, the building need only meet the requirements set out above.  If, and only if,[106] a part of building lacks those features (by having a separate front door to the street and no ‘internal communication’ with the remainder of the building, such that it is necessary to go outdoors to move between the front doors of the apartments) will it be considered to have been ‘severed’ and to have become a separate messuage.  This is said to be indicated by a line of authorities from the United Kingdom which discuss whether a building can be considered a single ‘house’ or ‘dwelling house’.[107]  These cases examine the question in a variety of legal contexts, including rating and trespass, a fact which Mr Stoops says supports his view that the same meaning should apply to the use of ‘messuage’ in the covenant.  Mr Stoops then points to certain lease agreements in the United Kingdom in the 1940s-1960s which contained references to apartment buildings as single messuages.  He says that this should be understood as the legal meaning of ‘messuage’[108] when used in any conveyancing context.  Mr Stoops submits that the same has been adopted as the position in Australia.[109] 

   [106]See Cook v Humber [1861] 11 C.B. (N.S.) 31, 47-48: ‘the authorities are uniform to shew, that, by actual severance, a part of a house became changed into a house, and without such severance the change would not be effected’ (emphasis added).

   [107]See Monks v Dykes [1839] 4 M&W 567, 567-570; Cook v Humber [1861] 11 C.B. (N.S.) 31, 47; Attorney-General v Mutual Tontine Westminster Chambers Association Ltd (1875-6) L.R. 1 Ex. D. 469; Kimber v Admans [1900] 1 Ch 412; Ilford Park Estates Limited v Jacobs [1903] 2 Ch 522. See also Preston & Newsom’s Restrictive Covenants: Affecting Freehold Land (1982, 7^th ed), [5-17].

   [108]See for e.g. the lease agreement extracted in MacMillan and Co Ltd v Rees [1946] 1 All ER 675, 677; see also S. Perks, Residential Flats of all classes including artisans’ dwellings: a practice treatise on their planning and arrangement together with chapters on their history, financial matters, etc with numerous illustrations (1905).

   [109]Citing Ex parte High Standard Constructions Limited (1928) 29 SR (NSW) 274, 278; The Legal Process Restrictions Act 1904 (Qld), s 3 (definition of ‘householder’).

3. Mr Stoops further submits that his construction of the covenant is not contradicted by Rogers v Hosegood,[110] a decision which, as indicated above, was given weight by Member Komesaroff in coming to her conclusion that one ‘messauge’ in the covenant referred to only one household.  Mr Stoops contends that Rogers v Hosegood should be distinguished on several bases.  First, he argues that the design in Rogers v Hosegood differed critically from the design plans in this proceeding in that there was no ‘internal communication’ between the apartments.  The design in Rogers v Hosegood was described in the headnote to include only one front door, but:[111]

   this entrance was to open onto a corridor leading into a lighting hall in the centre of the building.  This hall would be open to the sky, but would be surrounded by a colonnade, so as to enable the occupants of flats on the further side to pass into the street dry shod.  The entrance would not admit of carriages passing into the lighting hall…Each flat was to be self-contained, to have its own front door, opening either onto the central court or on to the corridor leading to it, or, in the case of the first and upper floors, on to corridors communicating by lifts and staircases with the lighting hall.  It was not proposed that any flat should open directly into the street.

   Mr Stoops says that because some residents of the building referred to in Rogers v Hosegood would have had to step into an open-air courtyard that was not fully enclosed by the building’s roof in order to move between the doors to the apartments, there was insufficient ‘internal communication’ for the purposes of the legal meaning of ‘messuage’.  Mr Stoops acknowledges that this is an artificial distinction,[112] but contends that it is in accordance with the legal meaning of the term ‘messuage’ as it was used at the time the covenant was entered into and so must be applied.  Second, Mr Stoops says that the terms of the restrictive covenant in Rogers v Hosegood differed from the covenant here in that it provided ‘that such messuage should be adapted for and used as and for a private residence only’.[113]  Mr Stoops argues that the inclusion of the word ‘private’ was what determined that the building erected on that land could only be occupied by one household, and that such word is lacking from the covenant here.  Related to this was Mr Stoops’ third argument that the correctness of his interpretation of Rogers v Hosegood was evident in the fact that there were two covenants in that case, one of which lacked the limitation of ‘one messuage’, but which was still held to have been contravened.  Mr Stoops says that this result must have arisen from the requirement for there to be a ‘private’ residence.[114]

   [110][1900] 2 Ch 388.

   [111]Emphasis added.

   [112]Transcript of the hearing on 14 May 2015, 59.

   [113]Emphasis added.

   [114]Citing also Re A R Wilson and the Conveyancing Acts 1919-1943 (1949) 49 SR (NSW) 276, 279; Cala Homes (South) Ltd v Carver [2003] EWHC 1995 (Ch).

1. Having sought to distinguish Rogers v Hosegood, Mr Stoops submits that it is necessary to assess the intention behind the covenant at the time it was entered into,[115] and that that intention supports his contention as to the meaning of the covenant. In Mr Stoops’ submission, the intention behind the covenant was to restrict the density of the development of the area, but only in terms of the number and design of any physical buildings. Mr Stoops says that the covenant was intended to stop the development of a slum-type area of terrace houses with haphazard planning, as had arisen in other areas of Melbourne. He says that this view is supported by the restriction on the building of connecting roads in the covenant. Mr Stoops says that the covenant was also intended to prevent subdivision by limiting the number of buildings that could be erected. Mr Stoops submits that there is no inconsistency in attempting to impose a density control that is directed only at the form of any buildings built and not to the number of residents.[116]

   [115]Citing Tonks v Tonks (2003) 11 VR 124 [8], [15].

   [116]Transcript of the hearing on 14 May 2015, 44, 55-7, 123-8.

2. Finally, Mr Stoops submits that any ambiguities in the meaning of the covenant ought to be construed in his favour.[117] This is said to be because s 56(2) of the Property Law Act 1958 requires the covenant to be interpreted as a deed of indenture, and, according to Mr Stoops’ interpretation of Norton’s A Treatise on Deeds, although the words of a deed are to be construed most strongly against the person who uses them, the words of a deed of indenture are not taken to be the words of either party.  Rather, they are considered to be the words of both parties, as the deed is executed by both parties.  This can be contrasted with a deed poll, which is executed by the grantor alone; and so the words used are the grantor’s and should be ‘taken most strongly against him’.[118]  To the extent that the authorities indicate that the words in a restrictive covenant should, as a last resort, be construed against the covenantor, Mr Stoops submits that these are in error.

   [117]Citing Property Law Act 1958, s 56(2).

   [118]Norton, A Treatise on Deeds (1928, 2^nd ed) 127; 132 (citations omitted). See Browning v Beston (1555) 1 Plowden 131, 134.

1. There can be no denying the energy and diligence employed by Mr Stoops in the pursuit of his cause.  However, in my view, his submissions do not, either individually or collectively, establish that the conclusion arrived at by Member Komesaroff or the conclusion arrived at by Senior Member Byard was clearly wrong.  To the contrary, as already mentioned, I am inclined to the view that each of those conclusions was correct.

1. I would not accept Mr Stoops’ submission that Member Komesaroff relied too heavily on dictionary definitions.  The definitions which she took from general dictionaries were quite illuminating.  Moreover, several of the definitions to which she referred were taken from legal dictionaries, not from general dictionaries.  There can be no criticism of the use of legal dictionaries in the present context.  The dictionary definitions do support the view that, whatever the position may be in England, the word ‘messuage’ was and is used in Australia, albeit not always, to refer to a house, a dwelling house or a household.  I would accept that the word can also be used to mean, simply, a building, or even to refer to a building containing a group of flats or apartments.  Indeed, the word has been used in Victoria to refer to a part of a municipal town hall provided to a tenant to be used as a concert hall.[119]  However, in my view, the word is not a legal term of art.  It has no single meaning in law.  It can mean a variety of things.  The real question is: what does it mean in this particular covenant? 

   [119]Radio Theatres Pty Ltd v City of Coburg [1947] VLR 84.

1. The covenant should be read as a whole.  The context of the word ‘messuage’ in the covenant is important.  The existence of the ‘residential’ requirement adds to the likelihood that the word ‘messuage’, in this covenant, was intended to refer to a house.  Royal Sydney Golf Club also tends strongly in that direction.  It refers to a messuage as a ‘house’.  If this be right, then the approach which I took to comparable questions of construction in Prowse v Johnstone[120] is the approach I would be inclined to take again. 

   [120][2012] VSC 4.

1. It is not clear how the quote from Kerslake v White[121] supports Mr Stoops’ case.  The interpretation of ‘rooms and chambers’ as being a reference to separate self-contained apartments in an apartment building (as opposed to being simply a reference to the various rooms comprising a single house) seems quite tortured.  The quote from Fenn v Grafton[122] seems similarly unhelpful to Mr Stoops.  Both Kerslake v White and Royal Sydney Golf Club seem to imply that there must be single occupation of both the building and surrounds, as these are to be ‘occupied together’.[123]  

   [121](1819) 2 Starkie 508.

   [122](1836) 2 Bing. (N.C.) 617.

   [123]Transcript of the hearing on 14 May 2015, 130-131, 143-144.

1. Mr Stoops relies mainly on United Kingdom case law, much of which I discounted in Prowse v Johnstone for the reasons stated there.  Mr Stoops relies on the manner in which the word ‘messuage’ was deployed in Queensland in the definition of ‘householder’ in The Legal Process Restrictions Act 1904 (Qld), but this is hardly persuasive in the present context.    

1. The proposition that a single front door and ‘internal communication’ is the deciding factor as to whether a building will be one messuage or several is artificial.   One of the bases on which Mr Stoops would distinguish Rogers v Hosegood, namely that a covered colonnade surrounding a private courtyard is materially different from an indoor lobby area, is even more artificial.  The number of residents/households that could live on the premises could be increased without limitation, simply by keeping all doors to the apartments within the building fabric.  

1. The authorities do show that where there is a requirement for a ‘private’ residence or dwelling that means there can only be one household, but the inverse is not true.  Each covenant is to be assessed on its own terms.

1. Although Mr Stoops acknowledges that the covenant was intended to be a ‘density’ restriction, on his interpretation there would be no limit on the number of households that could be accommodated on the premises.  He says that it was not contemplated in 1940 that an apartment block of enormous size could be built, but plainly apartment blocks were in existence as of 1940.  In Tonks v Tonks,[124] a restrictive covenant containing the phrase ‘a dwelling house’ was considered by Bongiorno J.  His Honour noted that there were two possible constructions of the restrictive covenant: it could either be directed to ensuring that the relevant land was maintained as a residential area without restriction on the number of dwelling houses constructed on each block, or its purpose could be to ‘not only maintain the residential character of the area but also to restrict the number of dwelling houses to one on each block’.[125]  His Honour found that the former was the purpose of the restrictive covenant in question in that proceeding, noting that if the parties to the original covenant had wished to restrict the number of dwelling houses built on each block they could have done so by replacing the word ‘a’ with the word ‘one’.[126]  The restrictive covenant here does use the word ‘one’ before ‘messuage’ and, as was the case in Prowse v Johnstone,[127] that provides some support for the proposition that the purpose or object of the covenant was to limit population density by restricting the number of independent residences on the property.[128]

   [124](2003) 11 VR 124.

   [125]Ibid [15].

   [126]Ibid [17].

   [127]Prowse v Johnstone [2012] VSC 4 [85].

   [128]Re Stani (unreported, Supreme Court of Victoria, Full Court (Young CJ, Barber and Nelson JJ) 7 December 1976) passim. 

1. In my view, there is no need to determine in whose favour an ambiguity in a restrictive covenant is to be resolved.  The covenant in question is not relevantly ambiguous.  In any event, Mr Stoops’ submission in this regard is contrary to the weight of current authority.[129]  

   [129]See for eg, Bradbrook & Neave’s Easements and Restrictive Covenants in Australia (2000, 2^nd ed), [15.6].  See also Ferella v Otvosi (2005) NSWLR 101 [15]; Prowse v Johnstone [2012] VSC 4, [52], [72].

1. Overall, I would agree with the following remarks of Senior Member Byard in the 2004 decision of VCAT:[130]

On Mr Stoops’ interpretation of this restrictive covenant the one messuage allowed under the covenant could contain a multi-dwelling building of 4 or 40 or 400 dwellings. That this should be the intention of this covenant seems to me to be improbable. As I have said, I see no reason to quarrel with the view reached by my colleague in the previous case, that the covenant is intended to, and does, impose a limitation to a single dwelling house with its grounds (if any), and that this means a single dwelling. This appears to me to accord with the dictionary definitions (both legal and general), with the decision of my colleague, the cases there referred to in the previous Tribunal decision and the meaning of the particular covenant in its context.

[130]Stoops v Frankston City Council [2004] VCAT 591 [39].

1. I am far from satisfied that the relevant conclusions of VCAT were clearly wrong.  I do not think that they were wrong at all.  The order of the Court permanently staying this proceeding as an abuse of process did not lead to an imbalance of justice as between Mr Stoops and the defendants, much less did it cause manifest injustice to Mr Stoops.

Conclusion

1. No error in the judgment of her Honour Associate Justice Lansdowne has been made out. 

1. The appeal will be dismissed.

1. I will hear the parties on the question of costs.