Dickson v Petrie (No 2)

[2025] NSWCA 176

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dickson v Petrie (No 2) [2025] NSWCA 176

Hearing dates:

On the papers

Date of orders:

07 August 2025

Decision date:

07 August 2025

Before:

Stern JA; Ball JA; Griffiths AJA

Decision:

(1) Notice of motion filed 5 June 2025 is dismissed.

(2) Appellants/cross-respondents to pay the respondent’s/cross-appellant’s costs of and incidental to the notice of motion.

Catchwords:

JUDGMENTS AND ORDERS — amending, varying and setting aside — application under Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) — motion to vary costs orders — whether misapprehension on part of Court warrants orders being varied

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1

Cases Cited:

Dickson v Petrie [2025] NSWCA 110

DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258

Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373

Fuller v Albert (No 2) [2021] NSWCA 183

Majak v Rose (No 5) [2017] NSWCA 238

Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8

Theunissen v Barter [2025] NSWCA 50

Category:

Costs

Parties:

Graeme Dickson (First Appellant and First Cross-Respondent )
Denise Carmel Dickson (Second Appellant and Second Cross-Respondent)
Janet Marie Petrie (Respondent and Cross-Appellant)

Representation:

Counsel:
P Tomasetti SC and D Robertson (Appellants and Cross-Respondents)
T Alexis SC and C Winnett (Respondent and Cross-Appellant)

Solicitors:
Ristevski & Associates (Appellants and Cross-Respondents)
Hones Lawyers Pty Ltd (Respondent and Cross-Appellant)

File Number(s):

2024/0339682; 2024/00402826

Publication restriction:

Nil

JUDGMENT

1. THE COURT: On 23 May 2025, the Court published reasons for judgment in the substantive proceeding, allowing the appeal in part and dismissing the cross-appeal (see Dickson v Petrie [2025] NSWCA 110). The Court ordered that orders below dated 29 August and 23 October 2024 be set aside. The Court made no order as to the costs of the proceedings below. The respondent was ordered to pay 50% of the appellants’ costs of the appeal and the cross-appellant was ordered to pay 50% of the cross-respondents’ costs of the cross-appeal. The respondent’s notice of objection to competency filed 10 October 2024 was also dismissed, with no order as to costs. We will assume familiarity with the reasons for judgment as well as the abbreviations.

2. By a notice of motion filed 5 June 2025 and within the 14-day period permitted, the appellants applied under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) seeking to have the orders dated 23 May 2025 varied as follows:

1. The costs order below dated 23 October 2024 be set aside and in lieu thereof the plaintiff to pay the defendants’ costs of the proceedings.

2. The respondent to pay the appellants’ costs of the appeal and the cross-appellant to pay the cross-respondents’ costs of the cross-appeal.

3. The respondent’s notice of objection to competency filed 10 October 2024 be dismissed with costs.

3. In support of their motion, the appellants relied on an affidavit dated 5 June 2025 by their instructing solicitor, Lupco Ristevski. The respondent relied on an affidavit dated 26 June 2025 by her instructing solicitor, Peter Geoffrey Clarke. The parties provided written submissions. By consent, the motion was heard and determined on the papers.

4. In brief, the appellants seek to have the costs orders varied on the following bases:

1. In determining not to make any order as to costs of the proceedings below, the appellants contend that the Court had a misapprehension that the appellants had unsuccessfully sought indemnity costs against the respondent, having regard to what the Court said at [161]:

The orders dated 23 October 2024 both relate to costs. Ms Petrie was ordered to pay the Dicksons’ costs of their application seeking indemnity costs. The Dicksons were ordered to pay Ms Petrie’s costs of the proceedings on an ordinary basis.

2. The appellants also contend that the Court misapprehended the parties’ position concerning costs of the proceedings below because the Court made a special costs order in terms that each party bear their own costs in circumstances where the parties’ common position both below and on appeal was that costs should follow the event.

3. The appellants complain that they, as appellants and cross-respondents, were awarded only 50% of their costs of the appeal and cross-appeal respectively, when no party had sought any such order and thus there was no opportunity to make submissions on the matters.

5. There is no substantial dispute regarding the relevant principles concerning the Court’s power to award costs as well as its power under r 36.16 of the UCPR to vary orders.

6. The Court has a broad discretion in determining costs, which discretion must be exercised judicially. The usual position is that costs follow the event but the Court is empowered by s 98 of the Civil Procedure Act 2005 (NSW) (CPA) and r 42.1 of the UCPR to make some other order. The Court observed in
   Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 at [8] that whether there should be a departure from the general rule that costs follow the event “depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed”. The Court added at [11] that the exercise of the discretion “depends upon matters of impression and evaluation”. To similar effect, in DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258 at [9] it was stated that “ … the Court should seek to make an order that is fair in all the circumstances, taking account of the extent to which issues are separable, and without aspiring to the false hope of mathematical precision”.

7. The Court’s power to vary an order under r 36.16 of the UCPR requires the identification of some misapprehension of the facts or the relevant law which caused an error to have been made. The relevant principles guiding the exercise of the Court’s power under r 36.16 were helpfully summarised in
   Majak v Rose (No 5) [2017] NSWCA 238 at [12]ff (emphasis added):

[12] The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the “overriding purpose” of facilitating the “just, quick and cheap resolution of the real issues” between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.

[13] It is well established that a court’s jurisdiction to set aside orders should be exercised sparingly and with caution, having due regard to the importance of the finality of litigation (see, for example, Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 at 684; [1982] HCA 41; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; [1982] HCA 51; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9]).

[14] In Autodesk v Dyason (No 2) at 302 Mason CJ said:

“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.”

[15] Mason CJ was there particularly concerned with the potential for misuse of the jurisdiction. He said:

“However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. … The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases” (at 303).

[16] In the course of his reasons, Mason CJ cited the following passage from Wentworth v Woollahra Municipal Council at 684:

“[T]he circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare. The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution. Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.” (italics added) [Emphasis in original]

…

[18] In considering an application pursuant to UCPR 36.16, this Court in Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 at [17], after quoting the passage in the judgment of Mason CJ in Autodesk v Dyason (No 2) extracted at [14] above, said:

“To that statement one may add two further notes of caution. First, there is a distinction to be drawn between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for re-opening, involves a mistake. Secondly, there is a distinction to be drawn between the situation where the court misapprehends the facts, on the one hand, and, on the other, the situation where the court does not refer in its reasons to some matter which, in the belief of the person seeking re-opening, deserved express reference.”

[19] The applicant bears the onus of showing that the jurisdiction ought to be exercised in her favour. That entails demonstrating some misapprehension on the part of the Court, and that that misapprehension is not attributable to her conduct of the proceedings.

8. It may be accepted that, in the reasons for judgment at [161], the Court misidentified the party who had unsuccessfully sought indemnity costs below. But, as the respondent correctly points out, this error was wholly irrelevant to the Court’s determination as to the appropriate orders regarding both costs of the trial and on appeal/cross-appeal. Those orders were based on other conduct of the parties and other relevant matters.

9. As to the costs of the trial, it is made clear in the reasons for judgment at [162] that the matter relied on in ordering the parties to bear their own costs of the trial was the primary judge’s observation at PJ[72]-[73] that both parties had changed their positions during the course of the trial, a matter which is borne out by the transcript.

10. The mistake as to the identity of the party who unsuccessfully sought indemnity costs below occurred in the context of a general description of the history of the proceeding. The fact that a party to the litigation below had failed to obtain an indemnity costs order played no part in, and had no bearing on, this Court’s reasoning as to why it was appropriate for the parties to bear their own costs of the trial.

11. As to the costs of the appeal and cross-appeal, it is well to reproduce
    [163]-[165] of the reasons for judgment, which explain why costs of the appeal and cross-appeal were awarded as ordered:

[163] The appellants have succeeded with two of their three grounds of appeal. The cross-appeal has failed. There was considerable overlap in the parties’ respective submissions concerning the appeal and cross-appeal. Adopting a broad-brush approach, more time and resources were devoted to the appeal than to the cross-appeal. But I do not consider that this justifies an unqualified order for costs in favour of the appellants. I accept the respondent’s submission that the appellants changed their position on the issue of exclusivity of rights, as is reflected in their submissions pre and post the appeal in Theunissen. The appellants initially argued that their rights under both parts of the Easement were not exclusive, while acknowledging that the exercise of their rights might in practice shut out the respondent periodically.

[164] In their written submissions on the appeal, the appellants contended that both they and the respondent were “entitled to use and enjoy the garden, even at the same time”, and that it was “difficult to conceive that the respondent may not be able to place some things in the shed herself”. That position is inconsistent with the appellants’ supplementary submissions post Theunissen (see at [88(b)] above). Senior counsel for the appellants also made an oral submission in the appeal that if the appellants left the garden area in Area X unattended, the respondent could “go in and garden”. This is also inconsistent with the appellants’ supplementary submissions post Theunissen, where they maintained that they had sole or exclusive rights under both parts of the Easement.

[165] The appellants’ preparedness, at times, to embrace the notion of shared rights to use Area X for gardening etc and jointly to use the garden shed for storage is consistent with many of the grounds raised in the cross-appeal, which grounds have failed. They should not have all their costs of the cross-appeal.

12. The appellants/cross-respondents have failed to demonstrate any misapprehension of the facts or the relevant law in this part of the Court’s reasons for judgment which would warrant the relevant orders being varied.

13. In particular, contrary to the appellants’ claim, the Court did not misapprehend that the respondent was seeking a special or unusual costs order in respect of the costs of the appeal and cross-appeal. The appellants appear to assume that, for the Court to depart from making the usual order that costs follow the event, it is necessary for a party to seek a special or unusual costs order. Subject to the obligation to act judicially (which includes procedural fairness), the Court can make whatever costs order it considers fair and just in all the circumstances. The breadth of the power is manifest in the terms of
    s 98(1) of the CPA:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act —

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

14. The appellants’ complaint of procedural unfairness concerning the orders for costs relating to the appeal and cross-appeal takes the matter no further. They have now had an opportunity to persuade the Court to vary the orders and the Court has given careful consideration to their submissions and evidence. We are unpersuaded, however, to vary the orders in the manner sought by them.

15. In particular:

1. It is notable that, in their written submissions supporting the notice of motion, the appellants acknowledge that they did change their position on the issue of exclusivity of rights under the Easement (see at [16(c)] of their submissions). Initially, they claimed that their rights were not exclusive but they then argued at some length that they had sole exclusive rights in respect of both gardening activities in Area X and the use of the inside of the shed for storage and laundry purposes (see the reasons for judgment at [94]). This change of position added considerable complexity and cost to the proceedings.

2. Contrary to the appellants’ contention at [16(d)], the issue of the validity of the Easement was not “always the principal contested issue”. As the primary judge observed at PJ[15], the then plaintiff’s primary contention at trial was that, as a matter of construction, the then defendants’ rights “as to both the curtilage and the shed, must accommodate a degree of shared use”.

3. The appellants failed on the appeal to persuade the Court of various matters concerning the proper construction of the Easement. For example, the Court rejected the appellants’ contention that “reasonable use” informs the task of construction (see the reasons for judgment at [109]). The Court also rejected their contention that they had the right to use the area of the Easement for general recreational purposes. The Court ruled that the respondent retained a right to use the Easement for recreational and related purposes (see the reasons for judgment at [9],[113] and [150]).

4. In their submissions in reply, the appellants submit that they “should not be deprived of any of their costs of the appeal or cross-appeal merely because they somewhat changed their position on the issue of exclusivity of rights in their further (supplementary) submissions, which the Court specifically directed in response to the Court’s decision in Theunissen v Barter”. The parties availed themselves of the opportunity to provide post-hearing submissions on that decision. The appellants did not dispute that in their supplementary submissions, they changed their position on the issue of exclusivity of rights. It may be noted that in the reasons for judgment at [127] the Court explained at some length why it rejected the respondent’s attempt in her supplementary submissions to distinguish Theunissen on the question of construction. In other words, having regard to the Court’s assessment of the parties’ respective positions, it was considered fair that the respondent pay 50% of the appellants’ costs of the appeal and of the cross-appeal.

5. Finally, the appellants also failed to persuade the Court to make declarations as to the parties’ respective rights for reasons which are set out in the reasons for judgment at [157].

16. As was observed in the reasons for judgment at [167], the Court took the view that different issues were raised by the respondent’s unsuccessful notice of objection to competency. The Court made reference to recent decisions of the Court in Owners Corporation Strata Plan 533 v Random Primer Pty Ltd [2025] NSWCA 8 and Theunissen v Barter [2025] NSWCA 50 where costs were awarded in relation to an unsuccessful objection to competency. The Court then proceeded at [175] to explain why it considered those cases to be distinguishable. It is well to reproduce [175] and [176]:

[175] In the light of this chronology of events, the respondent contended that this case is significantly different from those in Random Primer and Theunissen. It was only after the notice of objection to competency was filed that the appellants filed the summons seeking leave to appeal on 20 October 2024, together with the valuation evidence. Thus, the respondent contended that she acted properly in filing the objection to competency at a time when the appellants had not adduced any evidence on value and the appellants had already been directed to file a summons seeking leave to appeal. The respondent emphasised that it was obliged to raise competency on or before 11 October 2024 if the question was open to be raised. This was the case here having regard to the early stage of the appeal proceedings and the absence of any valuation evidence.

[176] I consider that there is considerable force in the respondent’s position. The competency objection should be dismissed, with no order as to costs.

17. The appellants have not identified any misapprehension of fact or law which would warrant that particular order being varied.

Conclusion

18. For these reasons, the notice of motion will be dismissed and the appellants ordered to pay the respondent’s costs of and incidental to the motion (see Fuller v Albert (No 2) [2021] NSWCA 183 at [32]).

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Decision last updated: 07 August 2025