Evans v Smith (No 2)

[2025] NSWCA 139

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Evans v Smith (No 2) [2025] NSWCA 139

Hearing dates:

On the papers

Date of orders:

26 June 2025

Decision date:

26 June 2025

Before:

Ward P and Stern JA at [1]; Adamson JA at [32]

Decision:

1.   The notice of motion filed on 30 May 2025 is dismissed with costs.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – order sought under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to recall and replace order declaring scope of extended curtilage with a declaration extending the curtilage to enable vehicular access across appellants’ land – perceived misapprehension as to matters relating to vehicular access – application to vary costs orders

COSTS – party/party – application for variation of costs orders – application for indemnity costs of motion

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(3A), 42.1

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Evans v Smith [2025] NSWCA 102

J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) (1993) 46 IR 301; [1993] FCA 70

Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59

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

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Power v Deputy Commissioner of Taxation (No 2) (2014) 98 ATR 75; [2014] NSWCA 77

Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) [2024] NSWCA 13

State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283

Category:

Consequential orders

Parties:

David John Evans (First Appellant)
Carolyn Anne Evans (Second Appellant)
Kenneth Linton Smith (First Respondent)
Office of the Registrar General (Second Respondent)

Representation:

Counsel:
N Hutley SC with LW Chan (Appellants)
M Maconachie with M Summerhayes (First Respondent)

Solicitors:
Aubrey Brown Lawyers (Appellants)
Maher Legal (First Respondent)
Office of the Registrar General (Second Respondent) (Submitting Appearance)

File Number(s):

2024/00308533

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Real Property List

Citation:

[2024] NSWSC 981

Date of Decision:

8 August 2024

Before:

Peden J

File Number(s):

2023/00191201

JUDGMENT

1. WARD P and STERN JA: On 16 May 2025, this Court published reasons for judgment in this matter (Evans v Smith [2025] NSWCA 102) in a dispute concerning an adverse possession claim over rural land on the Central Coast in New South Wales. By majority (Adamson JA dissenting not as to the outcome of the appeal but as to the extent of the relief granted), the appellants’ appeal was allowed and, relevantly for present purposes, an order (Order 3) was made in the following terms at [116]:

(3)   In lieu [of orders 1,7 and 9 made on 8 August 2024 by the primary judge, which were set aside by this Court], declare that the respondent [Mr Kenneth Smith] is the rightful owner of so much of the land in Lot 41 DP 1003436 upon which the respondent’s house and its curtilage house sits (as identified in the plan attached (i.e., “Plan Sheet A” attached to the appellant’s 23 May 2024 offer) but extended to accommodate vehicular and pedestrian access from the respondent’s land to the Unformed Road).

2. In our reasons (at [115]) we said the following (foreshadowing that there might be a need to apply if there were to be a dispute as to how the area of land forming the extended curtilage was to be identified on the relevant title documents):

… it is inconsistent with the concept of curtilage as land serving the purpose of the Smith house to confine the curtilage in the present case to an area that does not permit ready access between the Smith house and the Unformed Road on which the mill stood at all relevant times and which is the respondent’s property. Accordingly, we would adopt the area of the Smith house and curtilage on the plan accompanying the appellants’ open offer but with an extended curtilage covering a narrow access way perpendicular to the area of the Smith house and shed leading to the Unformed Road. Mr Hutley SC indicated that this would be an area of around 20 metres beyond the curtilage shown in the plan in the most direct perpendicular line between the two. We set out below a diagram of what we have in contemplation in that regard. The parties should have liberty to apply if there is any dispute as to how that area is to be noted on the relevant title documents.

3. On 30 May 2025, the first respondent filed a notice of motion, invoking the power under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), seeking that Order 3 be recalled and replaced with a declaration in terms to the following effect:

Declare that the First Respondent is the rightful owner of so much of the land in Lot 41 DP1003436 upon which the First Respondent’s house and its curtilage sits (as identified in “Plan Sheet A” attached to the Appellant’s 23 May 2024 offer (“Plan Sheet A”)) but extended to accommodate vehicular and pedestrian access from the First Respondent’s land to the “Unformed Road” and to Ravensdale Road (such extension to be constituted by the 6 metre wide land segment referred to in the Amended diagram of Plan Sheet A attached to the Court’s reasons of 16 May 2025 and the land within the dotted red lines in Plan Sheet A). The parties have liberty to apply in connection with the consequences of this declaration

4. The first respondent also seeks a variation of the costs orders made by this Court, those being (Order 4) that the respondent (i.e., the first respondent) pay the appellants’ costs of the proceedings at first instance on the ordinary basis and (Order 5) that the respondent (i.e., the first respondent) pay the appellants’ costs of the appeal on the ordinary basis.

5. As is well-known, the power to recall or vary perfected orders under r 36.16(3A) of the UCPR is limited and only to be exercised with circumspection and in exceptional cases. The principle of finality of litigation is fundamental to the administration of justice (see Power v Deputy Commissioner of Taxation (No 2) (2014) 98 ATR 75; [2014] NSWCA 77 (Power) at [3]-[4]). It may be displaced in rare cases such as where there has been a material misapprehension of fact or law, or denial of procedural fairness (see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6; State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 (Hollingsworth) at [17]-[22] and Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) [2024] NSWCA 13 at [5]). However, there is high bar to surmount on such applications. In Hollingsworth (citing Majak v Rose (No 5) [2017] NSWCA 238 at [12]) it was said (at [17]) that the power is only to be exercised in cases of “readily identifiable, readily rectifiable, inadvertent errors”; (at [18]) that what is required is more than mere dissatisfaction with the result; and (at [20]) that where the application proceeds on the basis of a “misapprehension”, what this means is “oversight and inadvertence” not “deliberate decisions which are said to be incorrect”.

6. Directions were made for the filing of submissions by the appellants in relation to the first respondent’s application and the parties were advised that the application would be dealt with on the papers.

7. These are our reasons for dismissing the application with costs. Abbreviations used in the appeal judgment, with which familiarity is here assumed, are adopted in these reasons.

Revision of Order 3

8. The first aspect of the orders which the first respondent seeks to revisit is the location of the extended curtilage the subject of Order 3. The first respondent suggests that, in making Order 3, this Court (or, more accurately, it should be said the majority) proceeded under the misapprehension that this would permit access from the Smith house to the (former) mill and to Ravensdale Road, whereas that is not so.

9. In that regard, annexed to the first respondent’s written submissions is a document headed “Plan Sheet B” (based on the document which formed part of the appellants’ 23 May 2024 open offer of settlement, which was used by us to identify the scope of the declaration made in Order 3). Plan Sheet B is a copy of Plan Sheet A with an aerial image superimposed on it by the appellants’ surveyor, which reveals a number of tracks on the Contentious Land. The complaint that the first respondent makes is that the declaration made in Order 3 does not in terms extend to two of the tracks visible on Plan Sheet B (those marked in red and orange on Attachment 2 to the first respondent’s written submissions on this motion), in respect of which the appellants had offered to give the first respondent a right of way in their open offer.

10. The first respondent understands that the intent of the declaration in Order 3 was to declare him to be the rightful owner of certain land including the track between the Smith house and the “Unformed Road” highlighted in green in Attachment 2. The first respondent suggests we may have considered it unnecessary for the declaration to extend to the “red” or “orange” tracks either because they were within the boundaries of the “Unformed Road” or because the “Unformed Road” was, in fact, a road or track separate from the “red” track rather than a place where a road was contemplated to be built but was not in fact built. (Neither suggestion is correct, as we explain below.)

11. In any event, the first respondent submits that the declaration actually made by Order 3 does not reflect the Court’s apparent intent to declare him to be the rightful owner of land that would permit vehicular access from the Smith house to Ravensdale Road. The first respondent says that in order to access the Smith house from Ravensdale Road, it is necessary to use the “red” track (there being no vehicular access from Brush Creek Road) whereas the “red” track falls outside the land in respect of which he has been declared to be the rightful owner on the terms of the declaration as made and outside of the other land (the Unformed Road and Lot 1) in respect of which there was no contest that he was the rightful owner. Thus, it is submitted that, based on the current declaration, the first respondent cannot travel to his house by vehicle without the risk of being treated as a trespasser by the appellants.

12. The first respondent argues that, in the present case, the interests of justice outweigh the interests of finality; and submits that this state of affairs has arisen in connection with what he perceives to be a misapprehension on the part of the Court, being one not attributable solely to his neglect or default. He submits that this is not an inappropriate attempt by a disgruntled litigant to re-agitate (in the hope of obtaining a more favourable outcome) issues that have been determined against him (adopting the language used in Power). Rather, he says that the present application assumes the correctness of the gravamen of the Court’s reasoning but that, on that reasoning and on an understanding of the facts uninfected by the “apparent misapprehension” of the Court, a different result to that which flows from the text of the Court’s declaration should ensue.

13. Further, the first respondent submits that there is no other convenient forum for him to obtain that different result, on the basis that he has no right of appeal from this Court’s orders and, while he has a right to apply for special leave to appeal to the High Court, he says that such an application would likely require the invocation of the High Court’s rarely used “visitation” jurisdiction and that successful invocation of that jurisdiction is far from assured.

14. The appellants resist the first respondent’s application. They submit that the declaration as made accurately reflects the land in respect of which adverse possession was established, including necessary access to the Unformed Road; and they say that the suggestion that the orders render the respondents as trespassers is unsupported by the Court’s findings and is only hypothetical. The appellants say that no new evidence, procedural irregularity, or material oversight has been identified and hence they contend that there is no proper basis for re-opening the matter. The appellants emphasise in this context the central importance of the doctrine of finality in litigation, especially in land and proprietary disputes.

Determination

15. The submission that there was a misapprehension by us that the extended curtilage would permit vehicular access across the appellants’ land directly to Ravensdale Road (i.e., via the red track) is unfounded. References in our reasons to use of the Contentious Land for access to the mill and to Ravensdale Road (see for example at [42], [80], [89], [100], [102]) were in the context of considering the claim for adverse possession of the whole of the Contentious Land. That is a different issue from the question of what comprises the curtilage of the Smith house (as understood by reference to the purpose of the dwelling).

16. Where reference is made by us to the extended curtilage permitting access to the mill and Ravensdale Road, what we contemplated was that the extended curtilage would enable access from the Smith house to the Unformed Road (where the mill was formerly situated) and that, from there, access could be gained to Ravensdale Road. Certainly, there was an assumption that, once there was pedestrian or vehicular access to the first respondent’s own land (the Unformed Land and Lot 1), then the first respondent would have a means of access to Ravensdale Road but it was not our assumption that this access would be along the “red” and “orange” tracks over which a right of way had been offered (but not accepted). So much should have been clear from the diagrammatic description of the extended curtilage that we had in mind. It would in our view be outside the concept of curtilage for it to be found to comprise the tracks indicated on the proposed rights of way that the appellants had offered.

17. We were certainly not under any misapprehension that the access offered by the right of way that had been proffered by the appellants (and not accepted by the first respondent) was over tracks situated on the Unformed Land. The area of Unformed Road was clearly separate from those tracks. Nor were we under any misapprehension that the Unformed Road had ever been built (as the reasons themselves make clear). Since the Unformed Road has been found to be the property of the first respondent, no right of way along those tracks would have been necessary to be granted had they been within the area of the Unformed Road.

18. As the debate during the course of the appeal hearing made clear, we recognised that the finding as to adverse possession of the house and its curtilage (with which the appellants by the time of the hearing at first instance did not cavil) did not give rise to relief by way of the grant of rights of way across the appellants’ land (AT 75.15-43).

19. We accept that there may be a practical difficulty for the first respondent if he can no longer use the tracks highlighted “red” and “orange” on Attachment 2 to his submissions (that difficulty being that some other track will need to be formed or made to enable access to Ravensdale Road from the area referred to as the Unformed Road or from Lot 1 itself). However, the finding of an extended curtilage was based on what we considered was the access from the Smith house to the former mill (and thence Ravensdale Road) which could be inferred from possession and use of the Smith house over the period of adverse possession, not access across the area of the tracks visible on the respective Attachments to the submissions.

20. What [115] of our reasons contemplated was access from the Smith house to the Unformed Road (more precisely to the area of the former mill) since that was the access that we inferred the first respondent had over the period in which it was accepted that he had adverse possession of the Smith house and its curtilage. Insofar as we contemplated access perpendicular to the house and its curtilage to the Unformed Road, we did not have in mind that it would necessarily follow the curved “green” track but it would be consistent with our reasons if the area were to be identified as including that track.

21. Insofar as we contemplated liberty to apply if that were to be necessary for the area of the extended curtilage to be appropriately identified, that would in our opinion encompass a designation of the “green” track as the location of the extended curtilage (if, as Attachment 2 seems to suggest that be the sensible or more convenient route from the house to the Unformed Road) but no further. The revised orders now sought do not reflect that.

22. Accordingly, we reject the application to recall and vary Order 3.

Costs

23. The second aspect in respect of which the first respondent seeks a variation of the orders made by us is as to the issue of costs. The first respondent submits that, irrespective of the outcome of the application for revision of Order 3, the question of costs should be revisited.

24. The first respondent notes that this question was not the subject of oral argument on the appeal. That is so. However, cost orders were sought by the appellants in their notice of appeal (both in respect of the first instance proceedings and of the appeal) and were the subject of written submissions by both parties (the first respondent similarly seeking costs in his favour both for the first instance hearing and on the appeal). So it cannot be suggested that the issue of costs was not in play. It was a matter for the parties whether they wished to make oral submissions on that issue. There was no request at the time of the hearing of the appeal for an opportunity to be heard orally on the issue of costs after judgment was delivered.

25. The first respondent submits that, as matters presently stand, the upshot of the present litigation is that he has achieved a result better than what the appellants offered (in their open offer) but worse than what he had sought. That may be so, in that the first respondent has the benefit of the declaration made as to the extended curtilage. However, nothing here turns on that.

26. The first respondent points out that it was not until written submissions were served briefly before the hearing at first instance that the appellants conceded that he was the true owner of the Smith house and its immediate surrounds. The first respondent submits that, given that late change in position of the appellants and the ultimate result having regard to the outcome of the appeal, he should not be required to bear the whole of the costs of the proceedings at first instance as Order 4 contemplates. The first respondent argues an order that each party pay its own costs at first instance and for a like order to be made (in lieu of Order 5) as to the costs of this appeal.

27. The appellants argue that there is no basis for the costs orders to be revisited. They submit that there are no exceptional or discretionary factors here that would justify a departure from the usual rule (that costs follow the event).

28. Further, if the present application does not succeed, the appellants seek their costs of the present application at least on the ordinary basis (invoking r 42.1 of the UPCR and citing Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 and Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 for the proposition that costs are compensatory, not punitive, and that an unsuccessful party generally pays the successful party’s costs). They go further and submit that indemnity costs are warranted in the present case, on the basis that they have incurred additional costs to defend a hopeless application (citing J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) (1993) 46 IR 301 at 303; [1993] FCA 70 per French J and Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801).

Determination

29. We do not accept that the first respondent has established a proper basis on which to re-open the matter to vary the orders made. The parties had an opportunity to make submissions as to costs (and did so in writing). Insofar as there is a suggestion in the first respondent’s submissions (by reference to the late concession as to the establishment of adverse possession in respect of the house and its surrounds) that there should in effect be an apportionment of costs across different issues, that would require an assessment to be made of the time and cost involved in addressing that issue as opposed to the issues in relation to the balance of the land. It is not appropriate now (belatedly) to engage in that exercise.

Conclusion

30. Therefore, the first respondent’s motion should be dismissed with costs (on the ordinary basis that costs follow the event). We do not agree that indemnity costs of the motion should be ordered in favour of the appellants. We do not consider that the application to revisit Order 3 can be said to have been so hopeless as to have been doomed to failure from the outset, at least insofar as the first respondent simply seems (wrongly) to have perceived that the basis of the reasoning in relation to the extended curtilage was to enable direct vehicular access across the so-called “red” and “orange” tracks (by reason of references in the reasons to access to Ravensdale Road).

Orders

31. For the above reasons, we propose the following order:

1. The notice of motion filed on 30 May 2025 is dismissed with costs.

32. ADAMSON JA: I have had the benefit of reading the joint reasons of Ward P and Stern JA for dismissing the first respondent’s application to vary order 3 (relating to the land of which the first respondent is the rightful owner) and order 4 (relating to costs). I agree with Ward P and Stern JA, for the reasons they have given, that neither order ought be varied and, accordingly, that the first respondent’s notice of motion filed on 30 May 2025 ought be dismissed with costs.

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Decision last updated: 26 June 2025