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

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.

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…

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.

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Details

Case: [2013] NSWSC 1389
Decision Date: 20 September 2013

CaseChat Overview and Summary

David Peter Buckley sought relief against David Francis Timbury and another, regarding an easement over a driveway. The dispute arose from the blocking of sub-surface drains by rocks, which interfered with the easement. The matter was before the court to determine the appropriate form of relief, and to decide the costs associated with the proceedings.

The primary legal issues concerned the form of relief Buckley was entitled to, specifically whether an injunction was appropriate, and whether a declaration should also be made. It was also necessary to determine whether any injunction should be conditional on the payment agreed in previous consent orders. The court had to balance Buckley’s entitlement to relief against the defendants' rights and the need for a practical and enforceable solution.

The court held that Buckley was entitled to an injunction restraining the placement of rocks that blocked the sub-surface drains, as this interference with the easement was actionable. The court also considered it appropriate to make a declaration to clarify the rights and obligations of the parties. The injunction was to be conditional upon the payment agreed in the previous consent orders, ensuring that the relief granted was fair and enforceable. The court found that Buckley was successful on the main issue but not on a lesser one, and thus the plaintiff should bear some of the defendants’ costs. However, given the differing roles of the two defendants, the court opted for a flexible apportionment of costs, rather than applying a presumption of equal liability.

The court ordered that an injunction be granted to Buckley, conditional on the payment agreed in the previous consent orders, and also made a declaration clarifying the parties' rights and obligations. Buckley was ordered to pay a proportion of the defendants' costs, with a more flexible apportionment applied due to the differing roles of the defendants in the proceedings.

Orders