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
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.
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Stoops v Lefas [2016] VSC 350
Case
[2016] VSC 350
Decision Date
CaseChat Overview and Summary
Stoops v Lefas was a case heard by the Supreme Court of Victoria where the plaintiff sought a declaration that a restrictive covenant was invalid. The dispute centred around the enforcement of a covenant that was originally part of a subdivision agreement, which restricted the use of certain land in a housing estate. The plaintiff argued that the restrictive covenant was invalid due to various reasons, including that it was not properly registered and that it was unreasonable. The defendant, on the other hand, sought to enforce the covenant to prevent the plaintiff from developing the land in a way that would violate the covenant.
The legal issues before the court involved the scope and application of the doctrine of abuse of process in relation to proceedings brought before the Victorian Civil and Administrative Tribunal (VCAT). The primary issue was whether the Associate Judge's decision to permanently stay the proceedings constituted an abuse of process. The court was also required to determine if there was an independent avenue for review under the Property Law Act 1958, and whether the application of the doctrine of abuse of process to VCAT decisions was appropriate. The court had to consider the factors identified in Putt v Perfect Builders Pty Ltd [2013] VSC 600 to assess whether there was a clear error in the VCAT decisions and whether those decisions caused manifest injustice.
The court found that there was no clear error in the VCAT decisions and that no manifest injustice had occurred. The Associate Judge's decision to permanently stay the proceedings was not considered an abuse of process. The court held that the doctrine of abuse of process was not applicable to VCAT decisions made in their review jurisdiction. The court also noted that there was an independent avenue for review under the Property Law Act 1958, which meant that the plaintiff's recourse was not solely dependent on the Supreme Court. Consequently, the appeal was dismissed. The court emphasised that the doctrine of abuse of process should be applied cautiously and only in cases where there is a clear error or manifest injustice.