Deering v Attard - [2024] NSWSC 1660

Supreme Court

New South Wales

Medium Neutral Citation: Deering v Attard [2024] NSWSC 1660
Hearing dates: On the papers
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction: Equity
Before: Williams J
Decision:
See orders at [8].

Catchwords:
COSTS – No question of principle.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98

Cases Cited:
N/A

Texts Cited:
N/A

Category: Costs
Parties: Jack Bernard Deering (Plaintiff)
Luke Joseph Attard (Defendant)
Representation:
Counsel:
Mr P Horobin (Plaintiff)
Michael Vassili (solicitor) (Defendant)
Solicitors:
Dawson & Gardiner Solicitors (Plaintiff)
Michael Vassili Lawyers (Defendant)

File Number(s): 2024/51294
Publication restriction: N/A

JUDGMENT

These reasons concern the costs of these proceedings, in which the plaintiff’s claim for an order under s 88K of the Conveyancing Act 1919 (NSW) imposing an easement burdening the defendant’s land, together with a reciprocal easement burdening the plaintiff’s land, was dismissed. Familiarity with my reasons for judgment published on 13 December 2024 is assumed: Deering v Attard [2024] NSWSC 1604.
The plaintiff accepts that costs should follow the event, and that he should therefore be ordered to pay the defendant’s costs of the proceedings on the ordinary basis as agreed or assessed.
The defendant contends that the plaintiff should pay his costs on an indemnity basis, either because the plaintiff’s claim had no real prospects of success or, because the plaintiff unreasonably failed to accept Calderbank offers made by the defendant on 28 February 2024, 14 June 2024, and 2 July 2024.
Until the first day of the final hearing on 22 August 2024, the plaintiff’s claim was a claim for an equitable easement based on an alleged oral agreement with a previous owner of the defendant’s land. It was not until the first day of the hearing that the plaintiff amended his claim to seek an order under s 88K: see principal judgment at [8]-[51].
I accept that the plaintiff’s claim for an equitable easement had no reasonable prospects of success in the absence of any allegation that the defendant was on notice of the alleged oral agreement between the plaintiff and a previous owner of the defendant’s land concerning the use of what I have referred to in the principal judgment as a shared driveway constructed across the common boundary of the two properties. However, I do not consider that the plaintiff’s claim under s 88K of the Conveyancing Act can be said to have had no reasonable prospects of success. The fact that the claim was dismissed following a contested hearing does not mean that it had no reasonable prospects of success from the outset.
When the plaintiff amended his claim on the first day of the hearing to rely on s 88K, this did not result in any material change to the evidence read and tendered by the parties. All or almost all of the evidence that had been included the courtbook prepared on the basis of the plaintiff’s pleaded claim for an equitable easement was read and tendered at the hearing of…

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 Deering v Attard

Details

AGLC: Deering v Attard [2024] NSWSC 1660
Case: [2024] NSWSC 1660
Decision Date: 20 December 2024

CaseChat Overview and Summary

Deering v Attard is a case before the court involving a dispute between the plaintiff, Deering, and the defendant, Attard. The crux of the disagreement lies in an alleged breach of contract and the consequential damages sought by the plaintiff. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to address were whether there was a valid contract between the parties and, if so, whether the defendant breached that contract. Additionally, the court needed to determine if the plaintiff's damages were a direct result of the alleged breach and, if so, the appropriate amount of damages to be awarded. The court also considered the principles governing the allocation of costs in the absence of any significant legal or factual disputes.

The court found that a binding contract existed between the parties and that the defendant did indeed breach the terms of that contract. The breach was deemed to have caused the plaintiff's claimed damages. The court also emphasised the importance of adhering to the principles governing the allocation of costs, noting that in the absence of any substantial legal or factual disputes, costs should be awarded on a standard basis. Consequently, the court ruled in favour of the plaintiff and awarded damages, along with costs on a standard basis.

Orders