Plaintiff v Defendants

"Upon the Defendants through their Counsel undertaking not to restrain the Plaintiff from having access to each one of the 38 units belonging to the Plaintiff over the common property relating to each and every one of the 38 lots on condition:

1. such access will be granted to it during normal working hours between 9am and 5pm on each and every weekday

2. the Plaintiff will give the Third Defendant 24 hours notice prior to the grant of such access."

4 Learned counsel who appeared before me, Mr Goldblatt for the plaintiff and Mr Wikrama S.C. for the defendants, appeared before Osborn J on the application, and I have read His Honour's short ruling upon the matter as well.

5 Then on 20 June 2005 by consent the matter was adjourned over to today and the matter has come on before me.

6 The short point at issue is the sought-for removal of the second previously undertaken condition, that is that the plaintiff will give the third defendant 24 hours' notice prior to any access. In respect of that discrete matter, I have before me an affidavit of Mr S. Spigler, solicitor for the defendants, affirmed 15 June 2005, in which affidavit, in language which appears to me to be extreme and in imagery likewise extreme, he deposes:

"If each and every one of the proprietors of the 800 storage units decided to access the units at the same time, not only would there have been pandemonium there would have been chaos. There would have been several hundred trucks parked in Little Collins Street trying to access the premises."

That appears in paragraph 19. The expression "unmitigated chaos" also appears in paragraph 6(a) of the affidavit.

7 In reply, Mr N.P. Bell, in his 22 June 2005 affidavit, set forth in paragraph 7 his response to that purported analysis and those expressions. It is unnecessary for me to rehearse his response other than to say he has set forth a factual matter which, on its face, answers to a substantial degree the language and imagery I have previously cited of the solicitor for the defendants. Further, Mr Bell has deposed in that paragraph that the consequence, effectively, of the 24 hour notice requirement is that there is not an access facility but rather, a warehouse facility. Various exhibits were tendered with that affidavit to that end, but it does not need such material to articulate the difference between access facility on the one hand, and warehouse facility on the other.

8 I consider on the material before me it is proper and appropriate to remove the requirement of 24 hour notice. The plaintiff already has less access than normal by reason of the nine to five requirement. The matter is to be adjourned for another month at the behest of the defendants and I consider in all the circumstances the second requirement ought be removed and I remove it.

9 Accordingly, I have signed the Orders sought: that the defendants are enjoined from restricting the plaintiff having access to the relevant premises.