Ellison v Marshall [No 3]
[2017] WASC 151
•15 June 2017
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | ELLISON -v- MARSHALL [No 3] [2017] WASC 151 |
| CORAM | : | KENNETH MARTIN J |
| HEARD | : | 10 MAY 2017 |
| DELIVERED | : | 15 JUNE 2017 |
| FILE NO/S | : | CIV 3017 of 2015 |
| BETWEEN | : TIA ELLISON |
Plaintiff
AND
DENISTON CLIVE MARSHALL
WENDY DOROTHY MARSHALLFirst Defendants
PETER MAXWELL LAURANCE
Second Defendant
JEFFREY CHARLES BURCH
MARIANNE AMY BURCHThird Defendants
Catchwords:
Costs - Indemnity costs orders - Discontinued action - Unreasonable pursuit of action by plaintiff beyond certain time - Costs considerations
Legislation:
Transfer of Land Act 1893 (WA), s 129C
[2017] WASC 151
Result:
Orders that plaintiff meet defendants' costs on indemnity basis after certain date
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| First Defendants | : | Mr M Howard SC |
| Second Defendant | : | Mr G R Ritter QC |
| Third Defendants | : | Mr G R Ritter QC |
Solicitors:
| Plaintiff | : | Bennett + Co |
| First Defendants | : | Minter Ellison |
| Second Defendant | : | HopgoodGanim |
| Third Defendants | : | HopgoodGanim |
Case(s) referred to in judgment(s):
Clubley v Bochrinis [2005] WASC 24
Durack v de Winton (1998) 9 BPR 16,403
Effeney v Millar Investments Pty Ltd [2011] NSWSC 708
Ellison v Marshall [2016] WASC 122
Ellison v Marshall [No 2] [2016] WASC 333
Hoy v Allerton [2001] QSC 440
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers
(WA Branch) (No 2) (1993) 46 IR 301
Loclot Pty Ltd v Pullen [2003] NSWSC 67; (2003) 56 NSWLR 592
Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420
Markos v O R Autor [2007] NSWSC 810
Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54
Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35
Re Lewis [1959] NZLR 1040
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341
[2017] WASC 151
Tujilo v Watts [2005] NSWSC 209
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KENNETH MARTIN J: This action was listed for a two day trial to be heard on 10 and 11 May 2017. The action has been the subject of prior interlocutory judgments. In Ellison v Marshall [2016] WASC 122 I acceded to the second and third defendants' application to become parties to this action and join the original defendants, Mr and Mrs Marshall. As may be seen from the schedules attached to those reasons, the dispute concerned the plaintiff's application, commenced by originating summons in December 2015, to 'modify' the terms of her easement rights in respect of the property she owns at 41A Saunders Street Mosman Park. That property is the dominant tenement in respect of easement access/egress rights enjoyed over a strip of land (which is seen marked in Schedule C to those reasons). Mr and Mrs Marshall are the owners of 41 Saunders Street Mosman Park and also the owners of the red strip of land which stretches from their riverside location to meet Saunders Street at the top of a rise seen depicted in Schedule A to those reasons. Further adjacent strips of land, as depicted in blue, yellow and white in Schedule C, are found to the left (north-west) of the red strip and in aggregate, form, in effect, a private road enabling the residential occupants and licensees of the houses at the river end of the private road to traverse over it to obtain access and egress from their residences to Saunders Street.
2 In Ellison v Marshall [No 2] [2016] WASC 333 (delivered 14 October 2016), I identified at Annexure A in those reasons the current rather smallish dimensions of the plaintiff's dominant tenement easement rights over the Marshalls' red strip of land. Annexure B to those reasons then contrasted the rights sought to be modified by the plaintiff in her application at that time. In the course of those reasons, I dealt with but rejected the defendants' application for leave to bring a summary judgment application out of time against the plaintiff. All defendants had been contending that the plaintiff's case as then advanced was hopelessly misconceived and should be dismissed without a trial. That was essentially on the basis that what the plaintiff was ostensibly seeking as a modification of her easement rights did not fit within the description of s 129C(1)(c) of the Transfer of Land Act 1893 (WA) (TLA). They relied on a significant body of first instance case law in Australia, some of which I discussed at [26] - [32] of those reasons and which was overwhelmingly in support of the defendants' advocated proposition. On that application the plaintiff did not seek to adduce any counter case authority: see [34] - [38].
3 In the end, I did not accede to the defendants' application for leave to
pursue a defendants' summary judgment application out of time - essentially for case management reasons. I proceeded on the basis
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that the whole matter was essentially ready for a two day trial which might then have been listed before the end of 2016. I accepted the plaintiff's basal submission that from a case management perspective it would be potentially wasteful to direct these parties down a summary judgment application path at that late point: see [39]. I did, however, provide, in effect, something of a warning to the plaintiff that on the materials as then presented the plaintiff could potentially be vulnerable to a no case submission at the trial: see [50].
There followed some significant further developments subsequent to the publication of those reasons which I will mention later.
5 At this point I simply note that with a two day trial due to commence
on 10 May 2017, the plaintiff's solicitors by email of 5 May 2017 at
12.20 pm advised my associate in terms:The plaintiff has decided not to proceed with the action. I have attached a minute of proposed orders seeking leave to file the attached notice of discontinuance.
We have conferred with the solicitors for the defendants and have been unable to agree on the terms of the minute of proposed orders. The defendants will inform the Court of their respective positions in respect of the minute of proposed orders.
We proposed that his Honour list the issues raised in the minute of proposed orders for hearing on 10 May 2017 (being the first date allocated for the trial).
Under a minute accompanying that email, the plaintiff foreshadowed seeking trial orders that:
(1) the plaintiff be granted leave to discontinue this action; and (2) the plaintiff pay the defendants' costs of the action to be taxed if not
agreed.
7 (There was a variation to that minute of proposed orders from the
plaintiff by her further amendments on 9 May 2017 seeking to limit the payment of costs to the defendants on the basis that this be allowed as a single set of costs only for all defendants. That costs position however was not strongly pressed by counsel for the plaintiff at the hearing on 10 May 2017 and I would have rejected it as inappropriate in any event in the present circumstances).
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8 I should note chronologically, that the plaintiff filed her written
opening trial submissions in accordance with earlier orders which I had
issued on 12 April 2017.9 Consequently, I now hold the plaintiff's trial submissions - but only
for the limited purpose of evaluating the present application, which effectively is only as regards the disputed issue of costs as between the parties.
10 The essential point of disagreement between the parties over trial
preparation costs is that the first, second and third defendants now all uniformly press for an order that the plaintiff meets all the defendants' costs awarded to the defendants on a solicitor/client (ie, indemnity) basis. That level of costs order is opposed by the plaintiff.
11 The ground for the defendants seeking what is an exceptional costs
order, in effect, of a punitive character in the face of the action being discontinued by a grant of leave (which was not opposed) is essentially that the plaintiff is said to have acted unreasonably - by commencing and then continuing to pursue what was always a meritless case against them under s 129C(1) of the TLA. That submission itself appears to be founded upon two main sub-points - both said to demonstrate the defendants' contentions of unreasonable conduct on the part of the plaintiff in, first, bringing and then continuing her action, namely:
(a) that the relief sought by the plaintiff in reference to her easement E500174E was always untenable by reference to the terms of s 129C(1)(c) itself. This submission is advanced on the basis that the augmentations to the plaintiff's rights as the dominant tenement holder vis-à-vis the Marshalls' servient land are not as a matter of law within the parameters of relief which could truly 'modify' her easement and could not on any basis be capable of being characterised as a 'modification' of her easement rights under the statute. Instead what was sought, on any view, was either an expansion, augmentation or relocation of the plaintiff's easement rights as the dominant tenement owner. Indeed, what was sought could be seen as being in the character of a wholly new easement for the plaintiff - once a careful assessment was carried out of the proposed plans relied upon by the plaintiff. A hopeless case in law as regards the absence of a true modification to her easement being proposed was demonstrable,
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so it was put, not only by reference to the terms of s 129C(1)(c) of the TLA but also by the overwhelming burden of Australian case authority decided in relation to counterpart easement modification statutes across Australia, which are in very similar terms to s 129C.
It was put by the defendants that the paucity of the plaintiff's legal position as regards a lack of case authority supporting her arguments about easement modification was amply demonstrated by the content of the plaintiff's written opening trial submissions - which could only point to one 1959 ex tempore New Zealand decision to support the approach to easement modification being contended for in regard to the plaintiff's easements claims. But the defendants point out that that ex tempore decision, Re Lewis [1959] NZLR 1040, delivered in the Supreme Court of New Zealand by Hutchison ACJ, had subsequently been uniformly distinguished or not followed in multiple first instance Australian cases - and which it was submitted the plaintiff's written trial submissions had ignored;
(b) that subsequent to my October 2016 decision refusing the defendants leave to pursue a summary judgment application, commencing from 14 December 2016, the character of proposed changes to the plaintiff's easement rights had altered and significantly so. That change of stance by the plaintiff after October 2016 happened, it was said, on two occasions - prior to the trial listed for May 2017. The first of the plaintiff's changes of position occurred under the plaintiff's second affidavit sworn 15 December 2016. By three drawings attached to that affidavit (attachment TE11) the plaintiff's architect had then formulated a wholly new proposal as regards easement E500174E. The plaintiff's modification proposal was now in even more expansive terms (area wise) seeking, in effect, to establish a dual carriageway scenario over the private road and coupled to an incorporation of a surrendered additional strip from the plaintiff's property at 41A Saunders Street.
For convenience, I append to these reasons as Schedule A one of the sketches showing the December 2016 proposed amendments to the private road extracted from Mrs Ellison's affidavit of 15 December 2016 (page 6).
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Evidently, that altered December 2016 proposal was not acceptable to the defendants. On my view, however, it represented a very significant change in position by the plaintiff and departed materially from the earlier easement modification case advanced for a trial which was evaluated under my 14 October 2016 reasons.
But then the December 2016 position changed again in 2017. That happened under Mrs Ellison's third affidavit sworn 16 March (filed 21 March) 2017. Under new plans as now disclosed she withdrew all proposed earlier 'modifications' in the plans set out in her earlier affidavits (par 7). She now attached new plans from her architect as TE12 (which for convenience I will again append to these reasons as Schedule B).
The March 2017 plans display a quite different proposal which is characterised as her 'proposed modification' (see pars 5 and 6 of her 16 March 2017 affidavit).
The March 2017 plans show a cross-hatched area in red and black traversing the Marshalls' red strip of land at the north-eastern corner of 41A Saunders Street. The legend for the cross-hatched area under the architect's plan explains this area as 'Proposed Benefit Lot 1'. Then underneath that it is said, 'Burden Lot 102 - Relocated'.
The apparent intent of the March 2017 plans looks to have been to geographically relocate the present dominant easement rights (demonstrated by the pink shaded area at the south-eastern corner of 41A Saunders Street). As I read the plan, the existing rights of the plaintiff would totally end and be relocated to the north-eastern corner at the cross-hatched area.
12 I should also note that by consent orders of 12 April 2017, I had
granted the plaintiff leave to amend her originating summons and I then reserved questions of costs associated with that late amendment to be dealt with at the trial. The plaintiff thereby amended her originating summons on 21 April 2017 to seek a court order at the May 2017 trial in terms of an easement 'modification' in accordance with the plans attached to Mrs Ellison's third affidavit.
13 Essentially, the defendants under their respective written submissions
as to trial costs filed on 8 May (first defendants) and 9 May 2017 (second and third defendants) uniformly now contend that they should be awarded
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their costs on an indemnity basis, effectively as a mark of the court's disapproval towards the plaintiff's pursuit of what they contend was always a hopeless 'easement modification' argument and, further, the wastefulness of the plaintiff's shifting positions over time as regards the changing plans for so-called modification to her easement rights as dominant tenement owner concerning the Marshalls' red strip of land.
14 As I have mentioned, there is no dispute at all that the plaintiff's
discontinuance of her action by leave (which I granted unopposed on 10 May 2017) should necessarily carry with it a level of taxed costs exposure by the plaintiff to the defendants. The core point of disagreement is whether, in effect, the plaintiff's costs exposure should be fixed at the level of indemnity costs favouring all defendants.
The defendants also seek to contend that I should recall the interlocutory costs orders that I made in the wake of my October 2016 reasons so as to reverse orders then made, and award the defendants their costs of that unsuccessful application seeking to pursue a defendants' summary judgment. They point out that the costs orders I then made as regards costs at the time (namely, that the costs of the defendants' unsuccessful application be the plaintiff's costs in the cause) have not yet been extracted and so, therefore, are capable of being recalled on a basis that they have not yet been passed and entered. It is contended by the defendants that a variation to those interlocutory costs orders has become appropriate - viewed in light of subsequent developments which have exposed the plaintiff's case at the hearing of that application to be completely, in effect, threadbare as regards non-pursuit of that easement modification proposal at that time and a replacement by two ensuing modification proposals of December 2016 and March 2017 (but which are also contended to be equally untenable as misconceived invocations of s 129C(1)(c) of the TLA).
16 At the conclusion of arguments, I reserved my decision as to costs to
enable me to reflect upon what had become, even without a substantive trial, a significant amount of material and case authority which had all been submitted by the parties notwithstanding the plaintiff's foreshadowed discontinuance of her action on 5 May 2017 (and, I was told, to the defendants on the basis that they should not prepare written outlines of opening submissions for trial the previous day).
17 An award of costs to a party in the context of dismissed or
discontinued litigation is, of course, discretionary - but that discretion is to be exercised on a principled basis by reference to precedent. Ordinarily,
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costs follow the event. Hence, a successful party or parties in litigation will usually receive some allowance for a proportion of their outlaid legal costs. An order for indemnity (solicitor/client) costs is a truly exceptional order. Considerable caution ought be exhibited in considering its deployment. Principles underlying indemnity costs orders were discussed in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10], noting particularly principles 2, 3, 5, 7 and 10. In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 French J (as his Honour then was) observed:
It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case (303).
Disposition
18 For the reasons which follow, I am of the view that in the present
case all defendants should receive from the plaintiff their taxed trial preparation costs associated with their resistance to her action brought against them (which is, in effect, accepted by the plaintiff as the price of her being granted leave to discontinue). However, I am of the view that beyond that starting position the award of costs to the defendants must be augmented by a further award of their costs incurred on a solicitor/client basis as against the plaintiff for the period from and after 1 December 2016. I reach that position on the basis that I would see it as inappropriate here to penalise the plaintiff by a costs order as regards her initial commencement of this action and its advancement up to October 2016. I then assess a reasonable period of approximately six weeks for the plaintiff and her legal representatives to reassess and assimilate the adverse implications of the reasons I delivered in Ellison v Marshall [No 2] on 14 October 2016. A six week period affords the plaintiff and her legal representatives ample time to reassess their position in reference to those reasons and to conduct any further research to ascertain whether or not a so-called 'modification' as sought to that point to the plaintiff's dominant tenement easement rights could reasonably be maintained - on a respectable basis towards a trial. As the plaintiff's written trial submissions of 2 May 2017 expose, the only case authority that was unearthed supporting the plaintiff's argued position as regards the easement changes which she was seeking at that time as a 'modification' under s 129C(1)(c) was Re Lewis, concerning s 127 of the then Property Law Act 1952 (NZ) (pars 50 and 51 of the plaintiff's trial submissions),
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after changing the underlying basis of her application twice after October
2016 as I have recounted.19 The trial submissions of the plaintiff seek to distinguish the many
first instance case authorities all uniformly standing against her arguments - mainly from New South Wales - some of which are discussed in the October 2016 reasons at [27] and [31] (including Markos v O R Autor [2007] NSWSC 810, Tujilo v Watts [2005] NSWSC 209, Effeney v Millar Investments Pty Ltd [2011] NSWSC 708, and Hoy v Allerton [2001] QSC 440. I also mentioned the local decision of Pritchard J in Panton v The Owners of Survey Strata Plan 46838 [2013] WASC 35 concerning an attempted modification of a restricted covenant and, in that context, her Honour's observations concerning the true meaning of the word 'modify' (noting her Honour's footnoted reference to Re Lewis at [83], footnote 30). The plaintiff's written submissions for trial sought to distinguish the New South Wales line of authority under par 18 of those submissions and also the observations by Pritchard J at pars 23 through 26. In addition to those cases supporting the defendants' arguments as to the inappropriateness of the plaintiff's desired changes to her rights as an easement modification, there are also the decisions of Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420, by Holland J who distinguished Re Lewis at (424), and by Young CJ (in Eq) in Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341. At [72] and [75] - [78] Young CJ also declined to follow Re Lewis, and see [73] and [85] - [87]. Those latter passages included the following observations, referring to s 89 of the Conveyancing Act 1919 (NSW) (which is closely termed to s 129C):
As to the third point, the statute says that where land is subject to an easement any person interested in the land may apply for an order under the section. 'The land' must refer to the servient tenement. With respect to the corresponding provision in the English legislation, s 84 of the Law of Property Act 1925, the leading English book Preston and Newsome, Restrictive Covenants; 9th ed, (Sweet & Maxwell, London, 1998) says at p 227 and see also p 197 that 'person interested' is a very wide term, but the interest must be in the servient tenement' [85].
20 Even more cases either distinguishing or declining to follow Re Lewis are identified in the defendants' written submissions upon costs. They include Loclot Pty Ltd v Pullen [2003] NSWSC 67; (2003) 56 NSWLR 592 [6] (Gzell J) and Durack v de Winton (1998) 9 BPR 16,403, 16,431 - 16,434 (Einstein J). Consequently, the body of case authority across Australia is overwhelmingly against the plaintiff's arguments. It would be fanciful to suggest that at first instance this weighty body of
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uniform Australian case authority, all standing against Mrs Ellison's
arguments, would not be followed by a trial judge of this jurisdiction.21 Moreover, it is now clear that the constructional limitations of
s 129C(1)(c) to which I refer at [33] of the October 2016 reasons, is further buttressed by the observations of Young CJ (in Eq) to which I have referred, by Austin J in Markos [113], by Master Sanderson in Clubley v Bochrinis [2005] WASC 24 [6] - [11], and by White J in Neighbourhood Association DP No 285220 v Moffat [2008] NSWSC 54 [53] - [54].
22 The position dictated under that overwhelming body of case law is
not reasonably countered in my assessment by the plaintiff's submission that the New South Wales legislation and decisions on it might be distinguished because of a presence of an extra power granted to the New South Wales' courts to grant a new easement pursuant to s 88 (see s 88K of the Conveyancing Act 1919, introduced by amendments under the Property Legislation Amendment (Easements) Act 1995 (NSW)). As pointed out by senior counsel for the first defendants, Holland J's decision in Manly Properties Pty Ltd preceded those 1995 New South Wales legislative amendments. Yet it takes exactly the same line, distinguishing Re Lewis as regards the words 'modify' and 'modification'.
23 Further, as regards a point I made prima facie at [33] of the October
2016 reasons concerning, in effect, the inapplicability of s 129C(1)(c) to the holder of a dominant tenement, further deliberation has only solidified that conclusion for me - by reference to the supporting weight of passages mentioned from the reasons of Young CJ (in Eq) in Tanlane Pty Ltd. That construction and the line of authority is not negated by the plaintiff's trial submission that the breadth of the court's discretion under s 129C enables it to make a wide evaluation of a substantial injury in the overall neighbourhood across a range of affected persons including, presumably, in this case, the Marshalls as the servient tenement holder (ie, owner) of the red strip of land and the second and third defendants.
24 On my assessment, case authority, especially Tanlane Pty Ltd, expressly contradicts that proposition. It is evident that the limitations arising out of s 129C(1)(c) as regards injury are not counterbalanced by the words in the chapeau to s 129C(1) referring to 'any person interested in the land burdened or benefited', as regards bringing an application. The specificity of the words used in subpar (1)(c) and the array of decided case authority rebut the suggestion. The 'grating' to which I referred in the October 2016 reasons as regards possible injury to the plaintiff - on
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deeper consideration now exposes the underlying intellectual fallacy of the approach. The relevant inquiry is as to a modification application proposed by the servient tenement holder (ie, the land owner).
25 Given all the above, my assessment is that, after having a reasonable
opportunity to consider the summary judgment reasons of 14 October 2016 and to conduct further investigations and legal research about their position, a party in the plaintiff's position acting reasonably ought to have realised by then that further pursuit of an application to 'modify' easement E500174E was a lost cause. But what happened from the plaintiff was almost the reverse - with a widened two-lane road proposal of December 2016 (equally untenable as a modification) before another change in March 2017 to a relocation proposal, before a final, late pre-trial surrender.
26 The December 2016 and March 2017 further 'modification' proposals
advanced by the plaintiff in a context of pending litigation drew the matter out, increased and wasted costs and simply exacerbated the overall dispute. Whatever might be said about the plaintiff's changing proposals as private consensual negotiating outcomes, the legal position, put simply, is that they were wholly untenable propositions to contend for as regards legal outcomes achievable under the plaintiff's originating process invoking s 129C(1)(c). In all the circumstances, their sustained and misguided pursuit from and beyond 1 December 2016, on my assessment, was unreasonable. That assessment renders this to indeed be one of the exceptional type cases that does warrant a sanction of the court by an indemnity costs order, that is applied as from that temporal point.
27 In reaching that conclusion, I should add that I have not discounted a
wider policy issue that I acknowledge concerning the need to not discourage parties by a threat of an indemnity costs sanction, from properly discontinuing or withdrawing from civil litigation - even at a late stage in circumstances where there arises or should arise a realisation that a matter cannot successfully be pursued at the trial. Indeed, there is an ethical obligation upon legal practitioners to advise their clients in such terms if that is the position. Nor have I overlooked the fact that for the present case, the plaintiff will be exposed to, effectively, two sets of defendants' taxed costs carrying a potential getting up exposure in a proceeding commenced by originating summons without pleadings to the maximum allowance amount stated under the 2016 costs determination (by reference to item 17). No submission has been made in the present circumstances that a taxation conducted by reference to that scale would be likely to produce an inadequate outcome for the defendants at the end.
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Even so, the present case, on my view, is a case akin to the appeal in Swansdale Pty Ltd, where a court on occasion should indicate by an indemnity costs order a repudiation of unreasonable conduct by a party to litigation. That is the case here in the plaintiff's continued pursuit of this action beyond 1 December 2016. An order for indemnity costs is appropriate from then.
28 Consequently, there should be an order that the plaintiff must pay to
the defendants their costs of the action to be taxed in respect of the period up to 30 November 2016 and, further, that after that date the defendants' costs are to be paid by the plaintiff on an indemnity basis to the defendants, with the usual proviso that the order does not authorise the recovery of costs of an unreasonable amount or which have been unreasonably incurred (see Swansdale Pty Ltd at [17] and case authority mentioned there).
29 Lastly, I must deal with the defendants' allied submission that I
should recall the interlocutory costs order made reflecting the unsuccessful outcome at the time of the defendants' application for leave to pursue a summary judgment application out of time. I had eventually rejected that application under my 14 October 2016 reasons. I subsequently made an order as to costs in terms:
The costs of the defendants' failed application for summary judgment, see Ellison v Marshall [No 2] [2016] WASC 333, are the plaintiff's taxed costs in the cause of that action.
30 A consequence of the discontinuance of the plaintiff's present action
of course, is that the matter did not ever proceed to a trial outcome. Consequently, there is no 'cause' by reference to which it can be ascertained that the plaintiff has succeeded - for the purpose of sustaining any costs exposure of the defendants as regards their unsuccessful interlocutory application seeking to pursue a defendants' summary judgment application out of time.
Nevertheless, I decline the invitation to recall those interlocutory orders and replace them with costs orders favouring the defendants.
32 The interlocutory application was argued and resolved in its
particular context. Although matters changed subsequently, particularly as regards the parties' preparedness for trial in relation to what became an overtaken easement 'modification' proposal, in my view, the core discretionary considerations applicable at the time as regards the interlocutory costs orders which I then issued have not sufficiently
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changed. I note in that context that I have not overlooked the special attention of the legislature towards the costs exposure of defendants under s 129C(8).
33 The interlocutory costs order which I made, seen above, has not been
rendered inappropriate in my view. It still reflects the ultimate outcome
of that interlocutory application at the time.34 These reasons will now be published and forwarded to the parties'
legal representatives. Orders as to costs in terms of [28] above will then take effect 72 hours after their publication - unless the parties seek to interrupt that event by application.
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Schedule A
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Schedule B
0