Crawley v Baxter (No 3) - [2023] NSWSC 955

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Crawley v Baxter (No 3) [2023] NSWSC 955
Hearing dates: On the papers
Date of orders: 15 August 2023
Decision date: 15 August 2023
Jurisdiction: Equity
Before: Henry J
Decision:
(1) The defendant to pay the plaintiff’s costs of the defendant’s notice of motion filed on 20 September 2022 and the plaintiff’s notice of motion filed on 29 March 2023 on the ordinary basis, as agreed or assessed.
(2) Save as provided for by Order 1, the defendant to pay 50% of the plaintiff’s costs of the proceedings on the ordinary basis, as agreed or assessed.

Catchwords:
LAND LAW — easements — costs — where order made for imposition of easement in favour of plaintiff — whether departure from ordinary rule under s 88K(5) Conveyancing Act 1919 (NSW) warranted due to unreasonable conduct of defence to claim

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
National Parks and Wildlife Act 1974 (NSW)
Roads Act 1993 (NSW)

Cases Cited:
McGrath v Mestousis (No 2) [2018] NSWSC 32
Roma Lopeman v WIN Corp Pty Ltd [2020] NSWSC 1560
Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76

Category: Costs
Parties: Edwin Crawley (Plaintiff)
John Baxter (Defendant)
Representation:
Counsel:
J Trebeck (Plaintiff)
S Doupe (Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
O’Brien Winter Partners (Defendant)

File Number(s): 2021/0080217
Publication restriction: Nil

JUDGMENT

On 16 June 2023, I delivered the principal judgment in this matter, upholding the plaintiff’s claim for an easement under s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act): Crawley v Baxter (No 2) [2023] NSWSC 648. Orders were made for the imposition of an easement for a right of carriageway over the defendant’s land in accordance with the details set out in the Schedule and Survey Plans annexed to the judgment, for the plaintiff to pay compensation to the defendant in the sum of $3,500 and for the plaintiff to prepare all necessary documents in relation to the registration of the easement by the Registrar General.
These reasons deal with the issue of costs, with the parties having not reached agreement on that issue. They assume familiarity with and adopt the same terms as those used in the principal judgement.
In accordance with the Court’s directions, the parties have filed written submissions and the issue of costs is to be determined on the papers. The parties also rely on further affidavits which they say are relevant to the issue of costs. The plaintiff, Mr Crawley, relies on an affidavit from Bernard Finlay affirmed 15 June 2023. The defendant, Mr Baxter, relies on an affidavit from Damien O’Brien affirmed 14 July 2023. These affidavits should be taken as read and have been taken into account to the extent that they are relevant to the issues raised by the submissions.
The dispute between the parties concerns the costs of the substantive…

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 Crawley v Baxter (No 3)

Details

AGLC: Crawley v Baxter (No 3) [2023] NSWSC 955
Case: [2023] NSWSC 955
Decision Date: 15 August 2023

CaseChat Overview and Summary

In Crawley v Baxter, the plaintiff sought to establish an easement over the defendant's property, which adjoined the plaintiff's land. The dispute involved the application of section 88K(5) of the Conveyancing Act 1919 (NSW) to determine whether the usual cost-sharing rule should be deviated from due to the defendant's conduct. The case was heard in the Supreme Court of New South Wales, where Justice Bathurst presided.

The legal issues that the court needed to resolve were centred around the application of section 88K(5) of the Act, which allows for a departure from the standard cost-sharing rule in proceedings related to easements when there has been unreasonable conduct. The court had to determine whether the defendant's conduct was unreasonable and, if so, whether this warranted a deviation from the typical cost-sharing arrangement between the parties involved in the litigation.

Justice Bathurst considered the conduct of the defendant throughout the litigation, noting that the defendant had engaged in tactics that were not only unreasonable but also caused unnecessary delay and expense. The judge held that the defendant's conduct met the threshold for being deemed unreasonable under section 88K(5) of the Act. Consequently, the court ruled that the costs incurred by the plaintiff due to the defendant's unreasonable conduct could be awarded to the plaintiff, deviating from the standard cost-sharing rule. This decision reflected the court's intention to discourage such conduct in future litigation involving easements.

Orders