Wong v McConville & Ors (No. 2)

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2013 02552

IN THE MATTER of the Property Law Act 1958, Section 84

and

IN THE MATTER of an application by Rebecca Yokehoong Wong for the modification of the restrictive covenant contained in Instrument of Transfer No. 2389018 registered in the Land Titles Office in the Register Book and imposed upon the land more particularly described as Lot 493 on Plan of Subdivision 9986 Certificate of Title Volume 08024 Folio 024

REBECCA YOKEHOONG WONG	Plaintiff
and
DANIEL McCONVILLE & ORS (and others according to the attached schedule)	Defendants

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2014
DATE OF JUDGMENT:	17 June 2014
CASE MAY BE CITED AS:	Wong v McConville & Ors (No. 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 282

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COSTS — Application for modification of restrictive covenant — Application granted — Application of special factors relevant to costs in applications for the discharge or modification of restrictive covenants — Re Withers [1970] VR 319 applied — Calderbank offers made by plaintiff — Applicable legal principles — Whether unreasonable of defendants to reject Calderbank offers — First offer too early and not susceptible of formulation as modifications to covenant — Second offer not susceptible of formulation as modifications to covenant — Whether in the nature of an invitation to negotiate— Whether the need that the Court exercise jurisdiction under s 84 of the Property Law Act 1958 affects the availability or utility of Calderbank offers — Effect of abandonment of a significant ground of the application on the first day of the trial — Costs of the defendants to be paid by the plaintiff on the standard basis.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Townsend	Michael Flemming & Associates
For the Defendant	Mr R Miller	Best Hooper

HIS HONOUR:

Introduction

1. The trial of this proceeding involved the application for the modification or discharge of a restrictive covenant, restricting, amongst other things, the erection of more than one dwelling on the land. The central issue in the trial was whether the plaintiff had established that the proposed discharge or modification would not substantially injure the persons entitled to the benefit of the covenant.

1. On 7 April 2014, I delivered judgment in this proceeding (Wong v McConville & Ors [2014] VSC 148) granting the application, on the basis that the plaintiff had established that the proposed discharge or modification would not substantially injure the persons entitled to the benefit of the covenant.

1. On that day, Counsel for the plaintiff informed the Court that three ‘without prejudice’ letters save as to costs (commonly known as Calderbank offers) were served on the defendants.  Each Calderbank offer was rejected by the defendants.

1. Accordingly, I made directions for the parties to file affidavits and written outline of submissions on the issue of costs.

Affidavits

1. The solicitor for the plaintiff, Michael Anthony Flemming, filed no fewer than four affidavits in…