Cox v McMillan - [2020] VSC 11

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2018 01085

ANTHONY PETER FABIAN COX	Plaintiff
v
CATHRYN McMILLAN	Defendant

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JUDGE:	Blue AJ (sitting as a Judge of the Supreme Court of Victoria)
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2019
DATE OF JUDGMENT:	31 January 2020
CASE MAY BE CITED AS:	Cox v McMillan
MEDIUM NEUTRAL CITATION:	[2020] VSC 11

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PROCEDURE — Civil proceedings in State and Territory courts — Costs — Offers of compromise, payments into court and settlements

PROCEDURE — Civil proceedings in State and Territory courts — Costs — Indemnity Costs — Particular cases — Unreasonable conduct or delinquency relating to proceedings

PROCEDURE — Supreme Court procedure —Victoria —Practice under rules of Supreme Court — Disposition without trial

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P R Best	Gadens Lawyers
For the Defendant	Ms M J O’Sullivan	Nathan Kuperholz

HIS HONOUR:

This is an application for costs in an action that was resolved by consent declarations.

Background

The plaintiff and defendant are neighbours. The plaintiff owns land the subject of three certificates of title issued under the Transfer of Land Act 1958 (Vic) (‘the Act’) on which are constructed three terrace houses (‘the plaintiff’s land’).

The defendant owns land the subject of two certificates of title issued under the Act (‘the defendant’s land’). The defendant’s land comprises:

· a house block on which a dwelling is constructed; and

· a linear strip approximately 14 metres long and 0.9 metres wide (‘the subject land’) which abuts the house block.

The subject land has a 0.9 metre frontage onto a street. There is a 0.9 metre-wide gate at the entrance to the subject land from the street (‘the gate’). The gate has a lock on it (‘the lock’).

The plaintiff’s land has a frontage to a street on its north and adjoins the subject land at its rear to the south.

The plaintiff’s land and the subject land are shown on an approved plan of division (‘the plan’). On the plan, the subject land is coloured brown and under a heading “Appropriations” it is stated that ‘[t]he land coloured brown is appropriated or set apart for easements of way & drainage.’

The certificate of title in respect of the subject land contains the following indorsements:

ENCUMBRANCES, CAVEATS AND NOTICES
Any encumbrances created by Section 98 Transfer of Land Act 1958 or Section 24 Subdivision Act 1988 and any other encumbrances shown or entered on the plan or imaged folio set out under DIAGRAM LOCATION below.
DIAGRAM LOCATION
SEE LP034385 FOR FURTHER DETAILS AND BOUNDARIES

The defendant acquired the defendant’s land in 2004. The plaintiff already owned the plaintiff’s land at that time.

On 22 November 2017 the plaintiff’s solicitor wrote a letter to the defendant’s solicitor asserting the existence of an easement over the subject land. On 1 December 2017 the defendant’s solicitor responded denying the existence of an easement and in the alternative contending that…

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 Cox v McMillan

Details

AGLC: Cox v McMillan [2020] VSC 11
Case: [2020] VSC 11
Decision Date: 31 January 2020

CaseChat Overview and Summary

The case of Cox v McMillan involved the applicant, Cox, who sought an order for indemnity costs against the respondent, McMillan, on the basis that McMillan's conduct during the proceedings had been unreasonable. Cox's application arose from an earlier dispute concerning the ownership of certain land. The matter was before the Supreme Court of Victoria. Cox contended that McMillan had acted unreasonably and in a manner that caused Cox unnecessary costs and expenses.

The court was required to determine whether McMillan's conduct during the proceedings was unreasonable, justifying an order for indemnity costs. This included assessing the reasonableness of McMillan's conduct in relation to the overall conduct of the case, including the handling of offers of compromise, payments into court, and settlement negotiations. The court also had to consider whether McMillan's conduct constituted delinquency or unreasonable behaviour that warranted indemnity costs.

The court found that McMillan's conduct did not meet the threshold for unreasonableness. While there were instances of late filings and delays, these did not rise to the level of unreasonable conduct warranting indemnity costs. The court noted that McMillan's conduct did not involve any deliberate or egregious behaviour, and the delays were not such that they caused significant additional costs to Cox. The court dismissed Cox's application for indemnity costs.

Orders