Braye v Tarnawskyj (No 2)

[2019] NSWSC 659

Supreme Court

New South Wales

Medium Neutral Citation:	Braye v Tarnawskyj (No 2) [2019] NSWSC 659
Hearing dates:	On the papers
Date of orders:	05 June 2019
Decision date:	05 June 2019
Jurisdiction:	Equity
Before:	Darke J
Decision:	Form of order settled. Plaintiff entitled to indemnity costs from 1 March 2019.
Catchwords:	PRACTICE AND PROCEDURE – judgments and orders – form of orders to be made following delivery of judgment – dispute over new boundaries between the plaintiff’s and second defendant’s land following the Court’s determination that most of the first defendant’s title to the claimed land is extinguished by the plaintiff’s adverse possession – plaintiff’s proposed orders preferred   COSTS – departure from the general rule – offers of compromise – plaintiff made two offers of compromise shortly before the hearing – neither offer accepted by the defendants – plaintiff obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether it was reasonable to not accept either offer – offers held to be genuine compromises – defendants failure to accept offers not shown to be reasonable
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14
Cases Cited:	Braye v Tarnawskyj [2019] NSWSC 277 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No 2) [2008] NSWCA 273 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Gray v Hobson (No 2) [2018] NSWCA 131 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Thorpe v Frank [2019] EWCA Civ 150
Category:	Costs
Parties:	Keith Stanley Braye (Plaintiff) Gloria Millicent Tarnawskyj (as Administrator of the Estate of the late Mary King) (First Defendant) Simon John Ward (Second Defendant)
Representation:	Counsel: Mr J Horowitz (Plaintiff) Mr R D Marshall SC (Second Defendant)   Solicitors: Fox & Staniland Lawyers (Plaintiff) Turnbull Hill Lawyers (First Defendant) Osborn Law (Second Defendant)
File Number(s):	2018/249328
Publication restriction:	None

Judgment

1. On 19 March 2019, the Court delivered judgment in this matter (Braye v Tarnawskyj [2019] NSWSC 277 – the “Principal Judgment”). This judgment assumes familiarity with and adopts the same terminology as employed in the Principal Judgment.

2. In summary, the Court concluded that the plaintiff had made out its claim for possessory title to the claimed land, save for a narrow strip of that land identified as the “concrete pathway area”. The Court made orders that, within 28 days, the parties bring in Short Minutes to reflect the Court’s reasons in the Principal Judgment.

3. A disagreement has since arisen concerning the form of the final orders that the Court should make. In addition, the plaintiff seeks an order that the first and second defendant pay the plaintiff’s costs of the proceedings on an indemnity basis from 1 March 2019 as a result of both defendants’ failure to accept either one of two offers of compromise made in accordance with rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). It is not in contention that the plaintiff is entitled to an order for costs on the ordinary basis up to 1 March 2019.

4. As was the case in the main proceedings, this dispute is largely between the plaintiff and the second defendant. Consistent with the position taken in relation to the hearing, the first defendant appears to have chosen to take no part in the dispute over the form of orders or the plaintiff’s application for indemnity costs.

Form of Orders

5. Both plaintiff and the second defendant’s proposed form of orders accept that a declaration should be made to the effect that Mary King’s title as registered proprietor of the claimed land is extinguished due to the plaintiff’s adverse possession of that land, except insofar as Ms King’s title relates to the concrete pathway area. Both parties’ referred to this area as the “Residual Portion”. Both parties also accept that the second defendant should be ordered to remove the caveat lodged on the title of the claimed land within 7 days of final orders being made.

6. There is a difference between the parties in relation to the location of another part of the new boundary to be created. The plaintiff has annexed to its form of orders an amended Plan of Consolidation which shows a consolidation of the claimed land and the plaintiff’s land. It highlights the Residual Portion and clearly excludes it from the area to be added to the plaintiff’s land. The amended Plan of Consolidation shows the Residual Portion occupying the width of the concrete pathway area described in the Principal Judgment and running from the Brien Street frontage up to the commencement of what is described as the “new timber pergola”. The pergola encroaches slightly into the plaintiff’s proposed consolidated land (and formerly the claimed land). From the point of the new timber pergola, the amended Plan of Consolidation shows the plaintiff’s land occupying the balance of the claimed land, and thus extending to the boundary of the second defendant’s land.

7. The second defendant contends that the new boundary line between the second defendant’s land and the plaintiff’s land should run along the “line of occupation” by the second defendant of the claimed land. I understand this to mean that from the point of the pergola, the boundary between the plaintiff and the second defendant’s land would accommodate the encroachment of the pergola.

8. In response, counsel for the plaintiff points out that the second defendant’s proposed boundary is not supported by the Court’s findings in the Principal Judgment. In particular, counsel refers to paragraphs [55] and [63] of the Principal Judgment and contends the Court made clear findings that the claim for adverse possession was made out over all of the claimed land, save only for the concrete pathway area.

9. In my view, the boundaries in the amended Plan of Consolidation accurately reflect what the Court decided in the Principal Judgment. As identified by counsel for the plaintiff, the Court held in the paragraphs referred to above that the plaintiff was successful in its claim for adverse possession over the entirety of the claimed land except for the concrete pathway area. The Principal Judgment (at [62]) makes clear that the pathway ended at the commencement of the pergola gate. From that point onwards, and as reflected in the amended Plan of Consolidation, the plaintiff’s entitlement to the claimed land should extend to all parts of it, including any part over which the second defendant’s pergola encroaches.

Costs

10. On 28 February 2019 (five days before the commencement of the hearing), the plaintiff’s solicitors sent by email two offers of compromise to the respective solicitors acting for the first and second defendants. Both letters were expressed to be made in the accordance with UCPR r 20.26. Both letters were also expressed to be open for acceptance until noon on 4 March 2019. Subject to the arguments referred to below, there was no suggestion by the second defendant that these offers did not comply with the terms of UCPR 20.26.

11. In the first offer, the plaintiff offered to compromise the whole of the proceedings in exchange for a declaration that an easement existed over the claimed land in favour of the plaintiff’s land. The rights attending the easement included rights to drain water and sewage, for services access, and a right of access including the right to park vehicles at all times and for all purposes.

12. In the second offer, the plaintiff offered to compromise the whole of the proceedings in exchange for a declaration that the plaintiff was entitled to become registered proprietor of part of the claimed land as depicted on an annexed Plan of Delimitation. In essence, the plan showed that the declaration would not extend to the concrete pathway as well as (at least) the portion of land over which the pergola encroaches.

13. Neither offer was accepted by the first or second defendant. Counsel for the plaintiff contends that the failure of the defendants to accept either offer, and the fact that it subsequently obtained a judgment no less favourable to it, means that the plaintiff is entitled to an order for costs to be assessed on the indemnity basis from 1 March 2019.

14. Counsel for the second defendant opposes the making of the order on a number of grounds. Those grounds might be conveniently categorised into the “no genuine compromise” grounds, and the “reasonable refusal” grounds.

15. As for the “no genuine compromise” grounds, counsel noted that insofar as the easement offer was concerned, it did not represent any true compromise because the plaintiff always sought that relief in the proceedings, albeit in the alternative. Insofar as the other offer was concerned, counsel contended that there was no genuine compromise because it simply put to the defendant the entirety of the plaintiff’s claim for adverse possession (except for the narrow portion of land excluded).

16. As for the “reasonable refusal” grounds, counsel for the second defendant advanced three main reasons why it was not unreasonable to fail to accept the offers. First, counsel took issue with the fact that the offers were made on the same day and were inconsistent with each other; only one offer was capable of being accepted and not the other. Secondly, counsel contended that the second defendant was not aware of the decision in Thorpe v Frank [2019] EWCA Civ 150 which was delivered only fourteen days prior to both offers being made. It was suggested that prior to that decision the weight of the authorities was in the second defendant’s favour and that had the plaintiff drawn that case to the second defendant’s attention prior to or at the time of the offers, then it may not have been reasonable for the second defendant to have rejected the offer. Thirdly, counsel contended that the period in which the offers were open for acceptance was inadequate. In support of this submission, counsel referred to Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [149] and Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 at [20]. It was further put that in this respect the offers failed to comply with UCPR r 20.26(5)(b).

17. Before addressing these contentions, it is necessary to address one threshold point. Counsel for the second defendant contended that there was no presumptive entitlement to indemnity costs by reason of the failure to accept either offer of compromise. However, provided an offer is made in accordance with the rules, a plaintiff who obtains a more favourable outcome has a prima facie entitlement to costs assessed on an indemnity basis unless the defendant can demonstrate that some different cost order is warranted (see UCPR r 42.14; Gray v Hobson (No 2) [2018] NSWCA 131 at [4]).

18. Turning to the “no genuine compromise” grounds, it is my opinion that both offers constituted genuine compromises by the plaintiff. In the case of the first offer, it is true that an easement over the claimed land was sought by the plaintiff, but this was always in the alternative to the primary claim in adverse possession. Acceptance of the first offer would have meant that the plaintiff abandoned its primary case, and the second defendant would have been able to become the registered proprietor of the claimed land pursuant to its contract for sale with the first defendant, subject to the plaintiff’s rights under the easement. Even allowing that such rights would be extensive, there is in my view a more than minimal element of compromise.

19. As for the second offer, it excluded from the proposed declaration not only the concrete pathway but also an area of land behind it. The plaintiff’s claim sought the entirety of the claimed land. Whilst the excluded land amounts to only a small area, that area would offer not insignificant benefits to either defendant.

20. For these reasons, I am satisfied that both offers represented genuine compromises by the plaintiff.

21. I turn now to the “reasonable refusal” grounds. The proximity of the hearing when an offer is made will often be a relevant factor to take into account in determining whether the refusal to accept the offer was reasonable in the circumstances: Elite Protective Personnel Pty Ltd v Salmon (supra) at [149]. This will turn on the individual circumstances of the case. Where there are complex issues in dispute a short period in which to accept the offer may be unreasonable (see, for example, Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) (supra) at [23]). In some cases, the making of an offer close to the hearing may in fact be a benefit because the advanced state of preparation of the matter will mean that the parties are likely to have a good appreciation of the relative strengths and weaknesses of their cases (see Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) (supra) at [20]; Gray v Hobson (No 2) (supra) at [7]).

22. Counsel for the second defendant noted that no reason was advanced as to why the plaintiff waited so long to make the offers. It was submitted that this late timing caused difficulty for second defendant because he is a member of the Royal Australian Air Force stationed in Western Australia and it was thus difficult for him to obtain legal advice on short notice. However, I do not think the second defendant’s occupation and station in Western Australia is significant. The second defendant did not adduce any evidence showing that he suffered the difficulty suggested. No request for further time to consider the offers was made.

23. In addition, the legal questions in these proceedings were confined in nature and not especially complex. The case involved applying well established principles to a factual background which was, to a large extent, undisputed between the parties. Both parties had served their written submissions prior to the plaintiff making the offers of compromise. The defendants can be taken to have known the legal position and arguments of the plaintiff by that time. In these circumstances, it could not be said that the time in which the offers were open represented “a short period for the consideration of a global assessment of a reasonably complex dispute” (see Kooee Communications Pty Ltd (supra) at [23]). Rather, the case is closer to a situation where the parties, being in an advanced state of preparation, were in a good position to assess the strengths and weaknesses of their respective cases (see County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No 2) [2008] NSWCA 273 at [35]). For these reasons, I am satisfied that the closing date for acceptance of each offer was reasonable in the circumstances within UCPR r 20.26(5)(b).

24. As noted above, the second defendant advanced two other reasons why it was reasonable to not accept the offers. The first was that there were two offers of compromise made on the same date which were inconsistent with each other. This contention must be rejected. The rules expressly provide that multiple offers of compromise may be made in relation to the same claim: UCPR r 20.26(10). Thus, the mere fact that there may be multiple offers made during the same time period (or, as in this case, on the same day) which involve different or somewhat inconsistent offers to compromise proceedings will not of itself mean that failure to accept such offers will be reasonable in the circumstances. It was open to the defendants to accept one or other offer, or neither of them. It was obvious that both could not be accepted. The position was not confusing. As it turned out, neither offer was accepted. It seems to me that in these circumstances it is entirely reasonable for the plaintiff to rely on one or both offers in an application such as this for indemnity costs.

25. The second reason advanced by the second defendant was that it was unaware of the decision of the English Court of Appeal in Thorpe v Frank (supra). It was submitted that before this decision the state of the law was more favourable to the second defendant. It was put that had the plaintiff brought that decision to its attention at the time of the offers, it may not have been reasonable to refuse to the offers.

26. In my view, this submission overstates the importance of the decision in Thorpe v Frank insofar as it relates to the present case. That decision involved an adverse possessor making a claim to disputed land as a result of his continued efforts in paving that land over a number of years. The decision applied well known principles of law with respect to adverse possession in a somewhat novel situation. The factual circumstances in Thorpe v Frank were quite different from the circumstances of the present case. It has not been shown that it was reasonable in the circumstances not to accept either of the offers made by the plaintiff.

27. In my opinion, the second defendant has not made out any cogent reason to depart from the ordinary position as stated in UCPR r 42.14. It follows that indemnity costs should be awarded in favour of the plaintiff as against the second defendant from 1 March 2019.

28. I do not think that the first defendant should be in any different position. The first defendant took a passive role throughout the proceedings but did not, at any stage, file a submitting appearance. In these circumstances, it is appropriate to also order that the first defendant pay the plaintiff’s costs on an indemnity basis from 1 March 2019.

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Decision last updated: 05 June 2019