David Peter Buckley v David Francis Timbury (No 2)

[2013] NSWSC 1389

Supreme Court

New South Wales

Medium Neutral Citation:	David Peter Buckley v David Francis Timbury & Anor (No 2) [2013] NSWSC 1389
Hearing dates:	1 August 2013
Decision date:	20 September 2013
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	First defendant restrained from placing rocks in or near the subsoil drains under the easement. Order stayed pending parties' compliance with previous consent orders. Plaintiff to pay 25% of the defendants' costs incurred in relation to prayers (1)-(3) of the Summons.
Catchwords:	REAL PROPERTY - easement - actionable interference to easement by blocking sub-surface drains with rocks made out - parties unable to agree on final orders - whether injunction restraining placement of rocks an appropriate form of relief - whether a declaration should be made - whether any injunction should be conditional on the payment agreed in the previous consent orders. COSTS - plaintiff unsuccessful in relation to a dominant issue but successful on a lesser issue - relief granted against the first defendant only - no interference on the part of the second defendant - whether the plaintiff should pay some or all of the defendants' costs - whether the first and second defendant's costs should be treated differently - whether any presumption that first and second defendant each liable for half of the costs should be applied - whether a more flexible apportionment is possible, in the circumstances.
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 36.1, r 42.1
Cases Cited:	AG NSW v Radio 2UE Sydney Pty Ltd and Anor [1993] NSWCA 134 David Peter Buckley v David Francis Timbury & Anor [2013] NSWSC 1009 Elite Protective Personnel Pty Ltd and Anor v Salmon (No 2) [2007] NSWCA 373 Korner v H Korner & Co Ltd [1951] Ch 10 Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507 Maylord Equity Management Pty Ltd v Reeltime Media Ltd (No 2) [2008] NSWSC 1133 Zenere v Leate (1980) 1 BPR 9300
Category:	Consequential orders
Parties:	Plaintiff:- David Peter Buckley First Defendant:- David Francis Timbury Second Defendant:- Susan Elsie Timbury
Representation:	Counsel: Plaintiff:- Ms L. Doust First and Second Defendants:- Mr J. Hewitt Solicitors: Plaintiff:- James Edward Behringer, Harris & Co Solicitors First and Second Defendants:- John Joseph Woodward, Turnbull Hill Lawyers
File Number(s):	2012/142622
Publication restriction:	No

Judgment

1. This is my second judgment in these proceedings. In the Court's principal judgment the Court found an actionable interference by one of the defendants, Mr Timbury, to the plaintiff's easement over the defendant's property: David Peter Buckley v David Francis Timbury & Anor [2013] NSWSC 1009.

1. In the principal judgment (at [116] and [117]) the Court directed the parties to put on written submissions about issues of costs and to forward short minutes of order to the Court to give effect to the reasons in the principal judgment. The parties have been unable to agree upon short minutes of order and have advanced competing submission about issues of costs. This judgment resolves those two remaining issues. Events, matters and things are referred to in this judgment in the same way as they are in the Court's principal judgment. This judgment and the Court's principal judgment should be read together. The findings in the principal judgment are not repeated here.

Orders for removal of rocks

1. In the principal judgment (at [110]) the Court found that Mr Buckley was entitled to relief restraining Mr Timbury from "placing rocks in or near the subsoil drains under the roadway on the easement or in a position where they are likely to wash into the drains during times of rain". The Court did not find any evidence that Mrs Timbury was involved in any such activity and the Court did not see any basis to grant an injunction against her on that ground: principal judgment at [110]. The defendant submits that a declaration rather than an injunction is the appropriate form of relief in respect of this issue of the blocked drains. The defendant advances a number of reasons in support of this conclusion.

1. First, the defendant says that injunctive relief in relation to the placement of rocks was not sought in the plaintiff's summons. But this is not an answer to granting injunctive relief. The issues of placing rocks in drains was clearly in contest at the trial on both sides. It was equally clear that Mr Buckley was seeking such relief as the Court thought appropriate in respect of that issue. Moreover, in modern litigation, particularly where the parties have been in contest about an issue during trial and where it is unmistakable (as it is here) that some kind of remedy is being sought about that issue by the plaintiff, the absence of a precise or specific claim in the originating process is not an obstacle to relief. Uniform Civil Procedure Rules 2005 r 36.1 ("UCPR") specifically authorises the Court to make orders "as the nature of the case requires", whether or not a claim for relief extending to that judgement or order "is included in any originating process or notice of motion". This is not an obstacle to granting of an injunction: Mr and Mrs Timbury were well aware of this part of Mr Buckley's claim at trial and that some relief was being sought in respect of it.

1. Secondly, Mr and Mrs Timbury say that granting an injunction is more likely to exacerbate than to quell the existing controversy. Drawing upon observations of McClelland J in Zenere v Leate (1980) 1 BPR 9300 at 93089 ("Zenere") and observations of the Victorian Supreme Court in Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507at [121] - [125], Mr and Mrs Timbury say that the appropriate relief in the circumstances is a declaration that the plaintiff be permitted to remove from the drains under the right of way any rocks that are reasonable likely to cause flooding of the right of way during times of rain. In Zenere McClelland J did emphasise (at 9308) where parties have been neighbours for many years it is undesirable to have "their future relationship carried on under the shadow of permanent injunctions...with the ever present threat of proceedings for contempt of Court in respect of the slightest deviation". His Honour was particularly loath to make such orders in circumstances where the injunctions could only be expressed in "very general terms".

1. But I am not persuaded that the principles stated in Zenere are applicable in this case. An injunction will only be granted in one area which is only a very small part of the parties' relationship and which has been the subject of deliberate conduct on Mr Timbury's part in the past. This is not a case where accidental conduct could be misconstrued as a breach of the Court's orders. The injunction can be framed with sufficient precision to avoid problems.

1. Thirdly, the Timburys criticise Mr Buckley's proposed form of injunction to give effect to the principal judgment (at [10]), as "overly broad and general". Specifically it is said to restrain the placement of any rock in a position where it is likely to wash into the drains, without specifying any relationship with flooding, which is the basis for the relief. Mr Timbury does not wish to be exposed to the prospect of contempt proceedings if he places a rock somewhere, which then happens to be washed into a drain during times of ordinary rain.

1. But Mr Timbury's argument on the generality of the orders sought can be taken into account to a limited extent. The orders proposed by Mr Buckley can be tightened to reflect the fact that Mr Timbury should not place rocks in a position where they are likely to wash into the drains during flooding or heavy rain. I see no reason to restrain Mr Timbury from doing this. He is quite at liberty to install fence-mesh down into the depressions under his fence or to secure any rocks that he places in those depressions to prevent them being washed away in floods using some kind of gabion structure or by planting grass, or other vegetation that better secures any rocks that he needs to place there.

1. Fourthly, Mr Timbury says that an injunction should not be granted in circumstances where Mr Buckley has not yet paid the defendants the sum in respect of the encroaching brick structure conveyed under the consent orders of August 2012 (CB10).

1. I agree with the Timburys on this matter. The commencement of the injunction should be conditional upon Mr Buckley paying this $15,000 for the conveyance of the land under the pillars from the Timburys to Mr Buckley. The payment will no doubt only occur in the context of conveyance of the land. Making the injunction spring up only after this conveyancing transaction is completed will not only serve the principle of "he who seeks equity must do equity" but will have another advantage. It will reduce a potential sense of grievance on Mr Timbury's part that he has been subjected to an injunction in circumstance where Mr Buckley has not yet performed the August 2012 consent orders. The Court has drafted orders to reflect the conditional nature of the injunction in this respect. If there is any difficulty with the form of these orders then the parties have liberty to apply to better effect their implementation.

Costs orders

1. The parties disagree about the proper order for costs in the proceedings. Mr and Mrs Timbury say they should have a costs order in their favour. Mr Buckley picks up the Court's observation in paragraph [114] of the principal judgment and submits that "each party should bear his or their own costs of these proceedings". In the result and after hearing further argument the Court has adopted neither of these solutions. Rather, for the reasons which follow, the Court determines that Mr Buckley should pay 25% of Mr and Mrs Timbury's costs of the proceedings.

1. The Timburys' case on costs may be shortly stated. They divide up the costs position of Mr and Mrs Timbury. They submit that Mr Buckley has completely failed in his claim against Mrs Timbury and that in the circumstances the Court should order that costs should follow the event, unless it appears that some other order should be made: UCPR s 42.1. The Timburys point out that there was no disentitling conduct on Mrs Timbury's part which would deprive her of a cost order, given that she was not involved in any activity forming the basis for the grant of relief: principal judgment at [110]. Moreover the Court has found, as the Timburys point out, that Mrs Timbury did not do anything to promote the discord between the parties - and as the Court also observed, nor did Mrs Buckley for that matter: principal judgment at [47].

1. Mr and Mrs Timbury submit that as they were jointly represented the Court can and should infer that they are each liable to pay an aliquot part of the defendants' total costs: King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204 ("King Network") at [25] - [26] citing Rogers v Kabriel (No 2) [1999] NSWSC 474 at [15]. It follows, Mr and Mrs Timbury submit, that Mrs Timbury is entitled to a costs order in her favour of 50% of the defendants' total costs, as agreed or assessed.

1. The defendants also submit that a costs order in Mr Timbury's favour is warranted in respect of the other half of the defendants' costs. He says he should have in his favour an award of 25% of the defendants' total costs (that is half of his 50%) as agreed or assessed.

1. Mr Timbury justifies this position on the following grounds: he succeeded in relation to the dominant issue at the trial, the solar powered gate; the area of Mr Buckley's success, the rocks in the drains, was only a minor issue; Mr Buckley failed in relation to the stones on the grassy verge and the posts in the roadway; and, the placement of rocks in the drains was not flagged clearly before hearing and was therefore not the reason the litigation took place.

1. Mr Buckley has persuasive answers to the Timburys' claims for costs. The Court accepts them in part in the course of its analysis of the Timburys' claims for the following reasons.

1. First, I accept Mr Buckley's contention that determination of the issue in relation to rocks in the under road drains was not trivial. It occupied more Court time than the question of the stones on the grassy verge and more than the ultimately abandoned claim in relation to the posts in the easement roadway. Although it is true, as the Timburys submit, that the solar powered gate was the dominant issue. In the absence of any countervailing factors Mr Buckley's success on the rocks in the road drains issue, would warrant a substantial costs order in his favour.

1. Secondly, I accept that all the Timburys' costs associated with the cross-claim and prayers for relief (4) and (5) of the Summons should be excluded from these orders and from any costs assessment ("the excluded costs"). This is because the settlement to which the Court's order on 7 August 2012 gave effect in relation to those issues included an order that "there will be no order for costs". The clear intent of this was that so far as those issues in the proceedings were concerned the parties will not further pursue the recovery of costs against one another. Thus, when the apportionment of costs on the present argument is taking place, all costs covered by the 7 August 2012 order can be ignored.

1. Thirdly, Mr Buckley argues that the Court should not proceed on the basis that Mrs Timbury is liable to pay half of the costs of the proceedings and that therefore half of the Timburys' costs are recoverable against Mr Buckley because he failed against her. Mr Buckley says that the assumption that Mrs Timbury is liable for her aliquot share of costs is not an assumption that should be made here and that the principles of cases such as King Network are not applicable in the present case. Rather, Mr Buckley says that the assumption is displaceable depending upon the nature of the case advanced and the defences raised: Korner v H Korner & Co Ltd [1951] Ch 10.

1. I accept that the principle in King Network is displaceable. I agree with Mr Buckley's submission that most of the allegations of interference in the easement concerned only Mr Timbury. But it was nevertheless necessary for Mr Buckley to join Mrs Timbury because without doing so there would have been difficulty in enforcing orders by way of injunctive relief against her land. But Mr Buckley's case was clear: Mr Timbury rather than Mrs Timbury was the author of most of the deliberate conduct interfering with the easement. In my view consideration in cases such as King Network are not applicable here. I would not have apportioned the actual effort by legal practitioners on Mrs Timbury's part of the case at more than 25% of the total defendants' costs. Although of course it can be assumed that Mr and Mrs Timbury were jointly and severally liable to their solicitors for costs on the defendants' side of this litigation.

1. Fourthly, some considerable time in the proceedings was taken up with the issues of the gateposts in the roadway and the stones on the grassy verge, neither of which were an unqualified victory for the Timburys. The gateposts in the roadway did not have to be resolved because the defendant removed the last of them during the trial. And the Court has found that the defendant deliberately placed stones on the grassy verge in part to annoy Mr Buckley in a way which, in my view, helped inflame the dispute between them: principal judgment at [75]. The result on these issues is one in which Mr Buckley could justly say that each party should bear its own costs. In contrast the Timburys were victorious on the important and time consuming issue of the solar powered gate.

1. Fifthly, Mr Timbury did engage in provocative conduct: principal judgment at [52]. Parties conduct in inciting or provoking proceedings can be taken into account in the assessment of an appropriate cost order: AG NSW v Radio 2UE Sydney Pty Ltd and Anor [1993] NSWCA 134; Maylord Equity Management Pty Ltd v Reeltime Media Ltd (No 2) [2008] NSWSC 1133. Mr Timbury's provocative conduct was of an extreme kind. It is difficult to understand why someone would place gatepost in the roadway in the way that Mr Timbury did other than for the principal purpose of causing annoyance to Mr and Mrs Buckley.

1. Sixthly, although Mr Buckley submits that the conflict should be looked at in its entirety and that the matters are not separable in the sense discussed in Elite Protective Personnel Pty Ltd and Anor v Salmon (No 2) [2007] NSWCA 373 at [6], that is not this case. The issue on which the Mr Buckley and the Timburys were successful can be isolated from one another and some relative assessment made of the time occupied with them during the hearing and in preparation.

1. This analysis leads to the following general conclusions. Mrs Timbury's share of the defendants' costs is not great. Mr and Mrs Timbury were successful on the largest issue in the hearing concerning the solar powered gate. Mr Buckley was successful on a lesser issue concerning the stones blocking the sub-surface drains. Mr Buckley failed on the other issues but Mr Timbury's conduct generally on them was provocative.

1. But the starting point for analysis is that Mr Buckley was successful and costs should follow the event unless the Court displaces that conclusion. In my view taking these considerations into account I have decided that Mr Buckley should pay some modest proportion of the Timburys' costs other than the excluded costs, which I will assess at 25%. Allowing each party to pay their own costs will not give proper weight to the Timburys' success on the major issue of the gate. On the other hand ordering Mr Buckley to pay more than 25% of the Timburys' costs will fail to recognise his success on one important issue. The Court therefore makes the following orders:

(1)   The first defendant to be restrained from placing rocks in or near the subsoil drains under road surface of the right of way burdening the defendant's property or in a position where such rocks are likely to wash into the drains during times of flooding or heavy rain.

(2)   The enforcement of order 1 is stayed until the plaintiff complies with the consent orders entered in these proceedings on 7 August 2012.

(3)   Plaintiff to pay 25% of the defendants' costs incurred only in relation to prayers (1)-(3) of the Summons as agreed or assessed.

(4)   Grant liberty to apply with respect to the implementation of these orders.

(5)   Exhibits may be returned.

Decision last updated: 20 September 2013