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(Jones DCJ - 20 February 2015)
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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 Dalys' land.

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 changes.

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 development.

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 proceeding.

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:

  1. 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.
  2. LPG was in breach of its implicit undertaking to the court and to the Dalys to proceed in an expeditious way.
  3. 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.
  4. 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.
  5. It was clear from the material that the proceeding could not be sensibly prosecuted until the Supreme Court proceedings had been exhausted.
  6. 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 LPG.
  7. The proceeding ought to be struck out.