Choosing a lawyer to run your application to either modify or remove a restrictive covenant, or to defend such an application, can have considerable bearing on both the substantive outcome of the proceedings and, of course, costs.
In this sub-specialty of property law, only a relatively small number of law firms have had much recent experience, particularly in contested applications.
Getting your choice of lawyer wrong can mean up to twelve months lost by pursuing the wrong type of application or perhaps losing an opportunity to recover a proportion of your costs.
The best means of choosing the right solicitor (or barrister) is to look through recent published cases to see: who has been acting for who, where the relevant land was located; and in which jurisdiction the case was run.
The following search from the independent Australian Legal Information Institute lists all Victorian cases (Supreme Court proceedings, VCAT hearings and panel hearings) using the search phrase “restrictive covenant”.
The following is a similar search narrowed to Supreme Court proceedings: "restrictive covenant".
And the following is a similar search narrowed to VCAT proceedings: "restrictive covenant".
However, be careful about making predetermined judgements about which jurisdiction in which to commence your application. The decision to pursue an application under the Planning and Environment Act 1987 vis a vis the Property Law Act 1958 may prove to be of considerable importance and you should be confident your lawyer is familiar with the advantages and disadvantages of both avenues.
*To view Matt Townsend's blog, Restrictive Covenants in Victoria, or to sign up for to receive email notifications each time a new post is published, please click here.