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…