Radandt v O'Toole [2006] NSWSC 721

Radandt v O'Toole [2006] NSWSC 721

Because the restrictive covenant appeared to affect each lot in a 150 lot subdivision, other registered proprietors might wish to be heard, and there had been no notice to those persons and no specific notice to the local council. The hearing therefore could not commence. The need to vacate the hearing lay with the defendant/cross-claimant because the procedural precedent identified in Conveyancing Service New South Wales should have alerted his legal advisers to the notice procedure, so he was ordered to pay the plaintiffs' costs thrown away.

Jurisdiction
Australia
Judgment Date
17 July 2006
Procedural Posture
Summons to Enforce Restrictive Covenant and Cross Claim to Modify or Wholly or Partially Extinguish Restrictive Covenant / Ex Tempore Judgment on Hearing Date Concerning Notice and Referral
Outcome
Hearing vacated; summons and cross-claim referred to an Associate Justice; defendant/cross-claimant ordered to pay plaintiffs' costs thrown away by the vacation of the hearing.
Legal Topics
['restrictive Covenant' 'section 88 B Instrument' 'modification or Extinguishment of Restriction on User' 'notice of Application' 'associate Justice Jurisdiction' 'costs Thrown Away']
['conveyancing' 'equity' 'civil Procedure'] ['restrictive Covenant' 'section 88 B Instrument' 'modification or Extinguishment of Restriction on User' 'notice of Application' 'associate Justice Jurisdiction' 'costs Thrown Away']

Case Brief

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Procedural Posture

Summons to Enforce Restrictive Covenant and Cross Claim to Modify or Wholly or Partially Extinguish Restrictive Covenant / Ex Tempore Judgment on Hearing Date Concerning Notice and Referral

Legal Issues

  1. 1 ["Whether the hearing could proceed where the defendant's cross-claim sought modification or extinguishment of a restrictive covenant under Conveyancing Act 1919, s 89 without notice to other affected lot owners or specific notice to the local council." 'Whether the summons and cross-claim should be referred to an Associate Justice for notice to be settled and for hearing.' 'Who should bear the costs thrown away by the vacation of the hearing.']

Ratio Decidendi

Because the restrictive covenant appeared to affect each lot in a 150 lot subdivision, other registered proprietors might wish to be heard, and there had been no notice to those persons and no specific notice to the local council. The hearing therefore could not commence. The need to vacate the hearing lay with the defendant/cross-claimant because the procedural precedent identified in Conveyancing Service New South Wales should have alerted his legal advisers to the notice procedure, so he was ordered to pay the plaintiffs' costs thrown away.

Court Disposition

Hearing vacated; summons and cross-claim referred to an Associate Justice; defendant/cross-claimant ordered to pay plaintiffs' costs thrown away by the vacation of the hearing.

Orders

  • ['Vacate the hearing of the matter.' 'Close the ECM Court.' 'Refer the summons and the cross-claim for hearing before an Associate Justice.' 'Stand the matter over before the Registrar at 9.30 am on Thursday 20 July 2006 for initial reference of the cross-claim to an Associate Justice to settle the form of notice of...