The owners of Bocelli claim construction has adversely affected their business. Photo: Gabriel Oliveira

Forrest Chase developer wins legal fight

Friday, 24 August, 2018 - 15:08

The $110 million redevelopment of Forrest Chase is set to proceed unhindered after the Supreme Court granted an injunction against the owners of a neighbouring cafe, who had blocked work by head contractor Lendlease by staying open all night.

The owners of Bocelli Espresso Café have been in a ‘David versus Goliath’ battle with funds management giant ISPT, which owns Forrest Chase.

Francesco Agnello and Leo Agnello, who were represented by Bennett + Co, commenced legal action early this year.

They have claimed the noise, dust and vibration associated with construction work, along with signage and hoardings around the Myer store building, has adversely affected their business.

They took direct action in March, after being informed that Lendlease planned to start installing a gantry above their cafe, to protect it from demolition works.


The co-owners kept their café open through the night and did the same thing in June when Lendlease tried again to start work on the gantry.

They told the court that a temporary canopy overhead would add one more dimension of overall negativity to the cafe premises.

ISPT, represented by Allens, launched a counter-claim alleging the co-owners had adopted a deliberate and intentional tactic to interfere with the planned work.

In a ruling handed down this week, Justice Kenneth Martin expressed some displeasure with the way in which ISPT had managed the process.

During preliminary hearings, it emerged that ISPT and Lendlease had permission to undertake work across 97 nights to April 2019 – a greater period than previously revealed.

“I do not make a finding that that situation was intentional from ISPT,” Justice Martin stated.

“But it was both unsatisfactory and unacceptable.”

Justice Martin also found the dispute was linked to the failure of the owners to extend their lease with City of Perth beyond March 1 2021.

“It is clear from the plaintiffs' own evidence and the contemporaneous documentation that the plaintiffs were only prepared to cooperate so as to allow the redevelopment to proceed if they got a new lease deal on terms they found acceptable,” Justice Martin wrote.

“When they did not get the deal they wanted they developed a significant hostility towards ISPT whom they accused of as lying and deceiving.”

On balance, Justice Martin agreed to grant the interlocutory relief sought by ISPT, allowing the proposed works to proceed between 10.30pm and 5am.

In doing so, he noted the scale and significance of the redevelopment of such a prime location in central Perth.

If the injunction was not granted, he said ISPT and Lendlease would need to work around the cafe, only to return in 2021, after its lease had expired, to complete the walkway above the cafe.

He added several conditions, including that a professional person acting for ISPT, such as a senior lawyer, should issue notices with details of planned work, rather than “some low level official of ISPT”.

Today's judgement comes just days after small business minister Paul Papalia and the Small Business Development Corporation launched three publications and supporting digital tools to help state government agencies and local government authorities work with small businesses located in and around construction zones.

“The guides will help agencies to develop business engagement strategies and be more ‘small business friendly’ when undertaking works projects," the minister said.

"It will also assist small business owners to prepare for upcoming construction in their area."