Cody v O'Neill - [2019] VSC 94

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PROPERTY LIST

S CI 2017 02259

BELINDA VERA CODY	Plaintiff
v
RONALD EDWARD O’NEILL	First Defendant
KATHLEEN MARY O’NEILL	Second Defendant
REGISTRAR OF TITLES	Third Defendant

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2018
DATE OF RULING:	26 February 2019
CASE MAY BE CITED AS:	Cody v O’Neill
MEDIUM NEUTRAL CITATION:	[2019] VSC 94

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COSTS – Plaintiff partially successful – Costs follow event – Standard basis – Supreme Court (General Civil Procedure) Rules 2015, r 63.31 – Plaintiff abandoned other claims – Effective discontinuance of part of proceeding – Starting point discontinuing party pays costs – Not displaced – Standard basis – Supreme Court (General Civil Procedure) Rules 2005, rr 25.05 and 63.15 – ASTA v Amasya [2016] VSCA 186; Lai Qin (1997) 186 CLR 622; Soteriadis v Nillumbik Shire Council [2015] VSC 363 – Indemnity costs – Calderbank offers – Not unreasonable to reject offers – Chen & Ors v Chan & Ors [2009] VSCA 233; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; Gunns Ltd & Ors v Marr & Ors (No 4) [2007] VSC 91

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Stark	Alpass & Associates
For the First and Second Defendants	Mr A Burnett	Petersen Westbrook Cameron Solicitors

JUDICIAL REGISTRAR:

Introduction

This proceeding concerns the ownership of a strip of land which is fenced into the plaintiff’s property at 44 Simpson Street, Kyneton (‘Plaintiff’s Land’) but which appears on the certificate of title of the property at 12 Powlett Street, Kyneton (‘Defendants’ Land’). I shall refer to the disputed land as the Subject Land. A garage was built many years ago on the Plaintiff’s Land and part of the garage was built over the Subject Land. The plaintiff claims ownership of the Subject Land through adverse possession (‘Adverse Possession Claim’). She also makes claims in nuisance and trespass by reason of the first and second defendants’ alleged conduct in respect of entering upon the Plaintiff’s Land and the Subject Land and carrying out excavation works near the garage and erecting a wall inside the garage. The plaintiff seeks injunctive relief to restrain the defendants from this conduct (‘Injunction Claim’) and she also claims loss and damage arising from that conduct (‘Damages Claim’).

The third defendant, as is common in such matters, informed the Court[1] that he did not intend to appear in the proceeding and he played no role in the proceeding. Where I refer to ‘the defendants’ in these reasons, I am referring to the first and second defendants.
[1]By letter dated 11 July 2017.

By their defence filed 29 August 2017, the defendants reject all of the plaintiff’s claims.

On 17 May 2018, her Honour Justice Emerton made a declaration by consent, in the form set out in paragraph C…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cody v O'Neill

Details

AGLC: Cody v O'Neill [2019] VSC 94
Case: [2019] VSC 94
Decision Date: 26 February 2019

CaseChat Overview and Summary

Cody and O'Neill were involved in a legal dispute which came before the court. The plaintiff, Cody, was partially successful in their claim against the defendant, O'Neill. The court was tasked with determining the costs associated with the litigation, applying the relevant rules and precedents. The legal issues before the court involved the principles of costs following the event and indemnity costs, particularly in the context of a partial discontinuance of claims by the plaintiff.

The court had to consider whether the plaintiff's abandonment of other claims constituted an effective discontinuance of part of the proceeding, and how this affected the allocation of costs. Under the Supreme Court (General Civil Procedure) Rules, the starting point for costs in such cases is that the discontinuing party pays the costs. However, this principle can be displaced under certain conditions. The court found that the plaintiff's discontinuance was effective and not displaced by any exceptional circumstances, thus adhering to the principle that the discontinuing party bears the costs of the discontinued claims. The court also considered indemnity costs in light of the Calderbank offers made by the parties. It was determined that it was not unreasonable for the plaintiff to reject these offers, as per the authorities cited.

The court ultimately decided that the plaintiff should bear the costs of the discontinued claims on a standard basis, while the defendant was awarded indemnity costs for the remaining proceeding. This decision was based on the established legal principles and the particular circumstances of the case. The court's final orders reflected this outcome, with specific directions on the allocation of costs between the parties.

Orders