Daily Construction: Friday, 15 May 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Executive Summary (One Minute Read)
Rosenwald v Hogg (VSC) - real property - restrictive covenant should not be discharged or modified - declaration refused - proceeding dismissed
Ferrari Estate Holdings Pty Ltd v Sovereign Resort Developments Pty Ltd (QSC) - negligence - nuisance - trespass - claim dismissed for want of prosecution
Summaries With Link (Five Minute Read)
Rosenwald v Hogg [2015] VSC 199
Supreme Court of Victoria
Macaulay J
Real property - restrictive covenant - plaintiff wished to demolish detached single dwelling on her land and replace it with apartment building with car park - plaintiff sought declaration that covenant did not prevent construction on land of single building containing a number of residential apartments and outbuildings - whether covenant limited use of land to one dwelling - whether appropriate to either discharge or modify covenant to allow for multi-dwelling use - whether modifying covenant to permit built-form of development would ‘substantially injure’ a covenant beneficiary - construction of restrictive covenant - held: covenant limited use of land to one dwelling - Court not satisfied covenant should be discharged or modified in terms proposed by plaintiff - declaration refused - proceeding dismissed.
Ferrari Estate Holdings Pty Ltd v Sovereign Resort Developments Pty Ltd [2015] QSC 126
Supreme Court of Queensland
Henry J
Negligence - nuisance - trespass - want of prosecution - parties were adjoining lot owners of properties - first defendant engaged second and third defendants to carry out development works - plaintiff alleged works carried out in 2004 were negligently done and transgressed property boundary onto its land - plaintiff did not file claim until 2010 - further delays followed - first defendant sought dismissal of claim for want of prosecution - plaintiff’s director orally applied to take further step without notice at the hearing of application - held: plaintiff engaged in prolonged delays - plaintiff failed to comply with implied undertaking under r5 Uniform Civil Procedure Rules 1999 to proceed in expeditious way - no good prospects of success - unsatisfactory explanation for delay - plaintiff exhibited no material regard to prejudice to first defendant - claim dismissed for want of prosecution.
By Edward Rowland Sill

Be still,—be still!
Midnight’s arch is broken
In thy ceaseless ripples.
Dark and cold below them
Runs the troubled water,—
Only on its bosom,
Shimmering and trembling,
Doth the glinted star-shine
                       Sparkle and cease.
Be still,—be still!
Boundless truth is shattered
On thy hurrying current.
Rest, with face uplifted,
Calm, serenely quiet;
Drink the deathless beauty—
Thrills of love and wonder
Sinking, shining, star-like;
Till the mirrored heaven
Hollow down within thee
Holy deeps unfathomed,
Where far thoughts go floating,
And low voices wander
                Whispering peace.