Originating Application – where applicant filed
originating application seeking declaratory relief on 11 October
2013 – where respondent applicants were unsuccessful in
previous strike out application – where strike out
application primarily grounded on the applicant's failure to
properly prosecute its originating application
Strike out application – where respondent applicants
sought to renew their strike out application by way of an oral
application – where oral application opposed primarily on the
ground that it lacked merits or, in the alternative ought be
brought in a more formal way by the filing of a further application
and supporting material
Facts: This was the hearing of an oral
application to strike out the proceedings.
The Applicant (LPG) was carrying out a major multi-unit
residential development at Kangaroo Point. Stage 3 of the
development was proximate to land owned by the Respondents (Dalys).
Two easements existed for right of way between the site and the
LPG's development had been the subject of two submitter
appeals commenced by the Dalys. The appeals had been resolved and
Judgments granted approving the development application as a result
of certain agreements reached between LPG and the Dalys.
LPG subsequently decided to make changes to the approved
development with respect to the Stage 3 land. The Dalys opposed the
LPG filed an originating application on 11 October 2013 seeking
declarations that the absence of consent from the Dalys (as the
owners of a servient tenement under one of the easements) was no
barrier to LPG making a request to change the development approval
or lodging a new development application.
The Dalys argued that the changed proposal was inconsistent with
the intent and purpose of the easement, would result in a nuisance
and was substantially different from the approved form of
The originating application was adjourned a number of times in
the first half of 2014. The Dalys subsequently advised LPG that
they would not consent to any further adjournments and filed an
application seeking to strike out the proceeding.
The strike out application was heard on 19 August 2014 and was
dismissed. When the proceeding was next heard on 10 February 2015,
the Dalys made an oral application to renew their strike out
LPG argued that the Court should not entertain the oral
application and that any application should be done formally and
include a timetable for the filing of material.
LPG had also commenced separate proceedings in the Supreme Court
against the Body Corporate of Castlebar Cove CTS, an adjoining
owner, seeking relief as a statutory right of user. LPG indicated
that success in the Supreme Court proceeding was a condition
precedent to the subject proceeding being pursued.
Decision: The Court held, in striking out the
proceedings commenced by LPG by originating application:
There was nothing in the material sought to be relied upon by
the Dalys which could take LPG by any real surprise and cause
material prejudice to it.
LPG was in breach of its implicit undertaking to the court and
to the Dalys to proceed in an expeditious way.
If LPG were required to proceed with its application as amended
in a timely way, its prospects of succeeding could only be
described as being extremely poor.
LPG was unable to identify the details of its proposed
development and that was a fundamental requirement of it being able
to successfully prosecute its proceeding in this court.
It was clear from the material that the proceeding could not be
sensibly prosecuted until the Supreme Court proceedings had been
It would be inherently unfair to the Dalys to allow such a
state of uncertainty to continue and that unfairness outweighed to
a significant extent any prejudice that might be suffered by
The proceeding ought to be struck out.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).