web view07.09.2015 · of an application by rebekah farrell and alexander joel sheed-finck...

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION

No. S Cl 2015 04448

IN THE MATTER of the Property Law Act 1958 (Vic), section 84(1)

and

IN THE MATTER of an application by Rebekah Farrell and Alexander Joel Sheed-Finck for the discharge and/or modification of the restrictive covenant contained in Instrument of Transfer No. 2071058 registered in the Land Titles Office in the Register Book and imposed upon the land more particularly described in Certificate of Title Volume 07210 Folio 950

IN THE MATTER of an application by:

Rebekah Farrell and Alexander Joel Sheed-Finck

Plaintiffs

ORDER

Associate Judge

The Honourable Associate Justice Mukhtar

Date Made:

7 September 2015

Originating Process

Originating Motion

How Obtained

On return of the plaintiffs Originating Motion filed 25 August 2015

Attendance

Matthew Townsend of Counsel for the Plaintiffs

Other Matters

According to the present expert affidavit evidence, there are at least 298 persons who have the benefit of the restrictive covenant. In accordance with established practice, the Court has identified those lots on the plan of subdivision that are in the nearby vicinity of the subject land and therefore are more likely to be affected by the application.

For convenience or possible future reference, Schedule Three to this order is a plan which depicts through the use of red dots the Lots for which the plaintiff must give direct notification under paragraph 2. (On that plan, "S" signifies the subject land). Lots coloured pink are presumed not to have the benefit of the Covenant.

An awareness of the application to the surrounding neighbourhood ought be created in this neighbourhood by the Court's first order which, akin to planning applications, requires a public notice to be displayed on the subject land itself.

THE COURT ORDERS THAT:

1. By 14 September 2015, the plaintiffs shall display a copy of a notice in the form of Schedule One to this order enlarged to size A3 and encased in a weatherproof cover by erecting it on a post in a conspicuous way near or alongside the letterbox adjacent to the driveway of the property at 68-74 Vasey Concourse, Croydon.

2. In addition to order one, by 14 September 2015, the Plaintiffs shall send notice of the application in the form of the Schedule One to this order by pre-paid ordinary mail to the address of those person in the Register of Titles or the address for that person in the rate book of the municipality who are the registered proprietors and mortgagees of each lot which is identified in Schedule Two. That notice should have attached to it, the proposed plan of subdivision, in colour, attached to these orders as Schedule Four.

3. The notice shall remain displayed until 14 October 2015.

4. The further hearing of this proceeding is adjourned to 20 October 2015 at 10:30 am in Associate Judges Court No.2, Ground Floor, 436 Lonsdale Street, Melbourne.

5. Liberty to apply.

6. This Order be drawn up on behalf of the Plaintiffs and be signed by the Associate Judge making the Order.

DATE AUTHENTICATED:

THE HON ASSOCIATE JUSTICE MUKHTAR

Schedule One

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION

No. S Cl 2015 04448

NOTICE OF APPLICATION TO DISCHARGE OR MODIFY RESTRICTIVE COVENANT

RE: LAND AT 68-74 VASEY CONCOURSE, CROYDON

CERTIFICATE OF TITLE VOL 7210 FOL 950

THIS NOTICE is given by order of the Supreme Court of Victoria:

TAKE NOTICE that Rebekah Farrell and Alexander Joel Sheed-Finck (the Plaintiffs) have applied to the Supreme Court of Victoria in proceeding No. S CI 2015 04448 for an order to discharge or modify the covenant contained in transfer no.2071058 registered on the title to the land. Under the covenant the owner cannot erect more than one building and outbuildings on any part of the land having an area of less than one acre. The owner of the land seeks to discharge or modify the covenant in order to subdivide the land into three lots and erect separate buildings and outbuildings on each lot. The application is made under section 84 of the Property Law Act 1958 (Vic).

TAKE FURTHER NOTICE that any person who is entitled to the benefit of the covenant and who intends to oppose the application should:

1. By 12 October 2015, give written notice to the plaintiffs solicitors, SMR Legal, 65 Nixon Street, Shepparton, Victoria, 3630; and

2. Appear on 20 October 2015 in Associate Judges Court No. 2, Ground Floor, Supreme Court, 436 Lonsdale Street Melbourne, at 10:30 am on which occasion the Court usually makes procedural orders for the conduct of the application.

If no person appears, the Associate Judge may make the Order sought.

Copies of all documents relating to this application and any further information (including name and address of any other objector or person entitled to the benefit of the covenant) may be obtained, on request from the plaintiffs solicitors, SMR Legal, 65 Nixon Street, Shepparton, Victoria, 3630.

The Hon. Associate Justice Mukhtar has authorised us to inform you that the costs of any person opposing the application are in the discretion of the Court, and that it may be that no more than one set of legal costs of separately represented persons with the same or similar interests opposing the application, will be allowed.

DATED 7 September 2015

Schedule Two

Lot ??? on Plan of Subdivision LP16996





























Schedule Three

Schedule Four

web view07.09.2015 · of an application by rebekah farrell and alexander joel sheed-finck...

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