Changes to Supreme Court practice

Quite a few changes are now underway in Lonsdale Street, triggered in part by the retirement of Derham AsJ and the never-ending number of applications to vary covenants pursuant to section 84 of the Property Law Act 1958. Amongst these changes is the appointment of Judicial Registrars to hear first returns to determine the extent of notice to beneficiaries and the welcome return of Efthim AsJ to hear restrictive covenant and other cases in Court 2.

The focus of the Court seems to be on clearing a backlog of unpublished decisions and otherwise improving the speed with which with covenant cases are resolved. While these steps are good for the efficient conduct of the business of the court, the faster pace of hearings also places a greater obligation on practitioners to ensure that draft orders and submissions are forwarded to the judge’s associate a clear day or two in advance of the hearing, and with even greater attention to detail. The court appears to be particularly grateful for short written submissions to accompany applications on their first return.

The retirement of Derham AsJ is the end of an era for the restrictive covenant jurisdiction. His Honour presided over a veritable renaissance of restrictive covenant modifications that arguably began with Morris J’s analysis of what amounts to “substantial injury” in Stanhill v Jackson [2005] VSC 169 and his Honour’s summary of how to construe a restrictive covenant in Clare v Bedelis [2016] VSC 381 has likely been cited in every contested s84 application since its publication.

A new set of guidelines for practitioners is also believed to be awaiting finalisation that may lead to further efficiencies in procedure.