Applications made under section 317 of the Act require the Court to apply the following two stage assessment:
1. have one or more of the grounds in section 317 been made out?
2. if so, is it appropriate for the Court to exercise its discretion to grant the orders sought?
What this means is that an applicant wishing to modify or extinguish a covenant must first meet at least one criteria set out in section 317 (1). If they have achieved that, then the court can decide to grant the order, which is still at discretion.
An import point of note with stage one is that although it says "one or more of the grounds", that's not strictly true. For example, if it will not substantially injure any person (317-1-d), that would not be considered enough on its own merit. That clause does feel slightly out of place, but don't worry about that.
Assessment process
Re: Assessment process
Thanks very much, George, for setting this up - a useful resource. Grant and Micaela