Litigating the enforcement of building covenants – Parts 1 and 2

The enforceability of building covenants is quite cumbersome in Queensland. Generally, they need to be enforced contractually. This can be very time consuming and costly. I was recently involved in a series of cases enforcing building covenants on a housing estate. Given the limited authorities relating to the enforcement of covenants in Queensland, I thought it useful to write about those recent cases and my experiences in them to identify matters would be helpful in enforcing covenants in other litigation.

The attached paper (Litigating the enforcment of covenants pt 1) is part 1 of five parts addressing the enforcement of convenants. It focuses on obtaining the initial injunction in a series of matters involving BGM Projects Pty Ltd and Durmaz Corporation Pty Ltd.

The lessons from this case were more about practice than the substantive law relating to restrictive covenants. Those lessons were:

1. the importance of having a precedent draft application and order, which made the drafting of the documents for the instant matter much easier;
2. being familiar with, and having available, the key authorities, as this meant that there was no scramble to locate cases and allowed focus on important matters;
3. some material is better than none, and the more that can be prepared the better (which segues neatly to the last lesson);
4. it is very helpful to have an experienced instructing solicitor.

This is the second part on my series on the enforcement of covenants – the Transfer Injunction (Litigating the enforcment of covenants pt 2). The lessons, at this stage of the matter, were more about practice than the substantive law relating to restrictive covenants. Those lessons were:

1. the importance of having a precedent draft application and order, which made the drafting of the documents for the instant matter much easier;
2. being familiar with, and having available, the key authorities, as this meant that there was no scramble to locate cases, and allowing you to focus on important matters;
3. that some material is better than none, and the more that you can be prepared the better (which segues neatly to the last lesson);
4. it is very helpful to have an experienced instructing solicitor.

The third instalment will deal with the Final Injunction.

 

Robert A. Quirk

Higgins Chambers

7 October 2020