Eyckens & Anor v Davey & Anor (Ruling)
[2012] VCC 1254
•12 September 2012
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES DIVISION
Case No. CI-11-06036
| BADEN EYCKENS | First Plaintiff |
| and | |
| DIANE HELEN EYCKENS | Second Plaintiff |
| v | |
| RUSSELL DAVEY | First Defendant |
| and | |
| DEIRDRE ANNE DAVEY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2012 | |
DATE OF RULING: | 12 September 2012 | |
CASE MAY BE CITED AS: | Eyckens & Anor v Davey & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1254 | |
RULING
---
SUBJECT: COSTS
CATCHWORDS: Application for costs – resolution of proceeding concerning right of plaintiffs’ use of a carriageway easement across defendants’ land – proceeding resolved by Deed of Settlement – whether Court should entertain application as to costs – hypothetical trial – whether sufficient agreed facts to determine entitlement to costs – conduct of the parties – prospects of success of original action
CASES: Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284; Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd & Anor [2000] VSC 214; Immigration and Ethnic Affairs, Re Minister for; Ex parte Lai Qin (1997) 186 CLR 622; Pettey v Parsons [1914] 2 Ch 653; Mantec Thoroughbreds Pty Ltd v Batur & Anor (2009) 25 VR 507
RULING: No order as to costs. Each party to bear their own costs.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr J W Kewley | R D Taylor & Associates |
| For the Defendants | Mr T Mah | Jillian Thomas |
HIS HONOUR:
Preliminary
1 The plaintiffs are registered proprietors of land marked with the letters “5D” (“the plaintiffs’ land”) on the attached plan. Immediately to the east is land owned by the defendants, and marked with the letters “5F” (“the defendants’ land”). Further again to the east is land marked with the letters “5B”, “5C” and “5G” and owned by the Lindorffs (“the Lindorff’ land”).
2 In approximately 2001, a carriageway easement was granted for the benefit of the plaintiffs across the defendants’ land and the Lindorff land, as shown on the attached plan. The easement is 20 metres wide and is the only means of access to and egress from, the plaintiffs’ land.
3 The plaintiffs purchased their land in 2002. The defendants also purchased their land in 2002. The defendants use their land for farming purposes. The plaintiffs appear not to live on their land but go there on weekends and at other times to look after horses which they keep on the property.
4 Sadly over the years, the relationship between the plaintiffs and the defendants has been poor, and marked by disputes of various kinds. These disputes have disrupted any prospects of neighbourly relations and affected each parties’ enjoyment of their land.
5 The plaintiffs brought proceedings seeking to enforce their right to access across the easement, which they claim was obstructed by the defendants by, in particular, the presence or installation of fences and gates in such a manner so as to substantially impede their access. The defendants deny there was any substantial impediment to the use by the plaintiffs of the easement.
6 When the matter first came before the Court on 20 December 2011, and after negotiation between the parties, the proceeding was resolved upon terms set forward in a Deed of Settlement dated 20 December 2011 (“the Settlement Deed”). The Settlement Deed purported to resolve the issues between the parties, save in respect of legal costs of the proceeding. The issue of the costs was adjourned to 21 August 2012 for determination. The matter was adjourned to enable the plaintiffs to file further affidavit material.
7 This Ruling is concerned with the issue of costs.
The Proceeding
8 By their Statement of Claim, the plaintiffs allege, and claim as follows:
· When they purchased their land, there were no gates placed across the easement.
· Of recent years, the defendants erected four gates across the easement which, together with fencing, significantly reduced their access along the easement.
· They sought interim and permanent injunctions restraining the defendants from impeding the plaintiffs’ access to the easement.
· Further and alternatively, an order to abate what was said to be a nuisance.
9 No viva voce evidence was called in support of the present application. The following affidavits were filed on behalf of the plaintiffs:
· Affidavit of Diane Helen Eyckens, sworn 9 December 2011.
· Affidavit of Diane Helen Eyckens, sworn 30 August 2012.
10 The following affidavits were filed on behalf of the defendants:
· Affidavit of Deirdre Anne Davey, sworn 18 December 2011.
· Affidavit of Jillian Thomas, sworn 15 August 2012.
· Affidavit of Deirdre Anne Davey, sworn 16 August 2012.
11 In addition, I was provided with further documents which the parties agreed I could rely upon, although they were not formally tendered, including:
· Statement of Allan May of the Moorabool Shire Council.
· Letter of the defendants’ solicitors to the plaintiffs’ former solicitors of 21 December 2005.
12 I have read all the above material.
13 Counsel for each party provided extensive written and oral submissions.
The Authorities
14 The starting point is that there is a wide discretion to the Court in relation to costs.
15 In Australian Securities Commission v Aust-Home Investments Ltd,[1] Hill J set forth propositions as to the circumstances in which a court may exercise the discretion to order costs where the parties had resolved a proceeding, or for any reason did not wish to continue with it:
[1](1993) 44 FCR 194 at [201]
“(1)Where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a cost order … .
(2)It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial: … . This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.
(3) In determining the question of costs it would be appropriate, however, for the court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them … .
(4) In a particular case it might be appropriate for the court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation: cf Sunday Times Newspaper Company Ltd v McIntosh (1933) 33 SR NSW 371.
… .”
16 In Gribbles Pathology Pty Ltd v Health Insurance Commission,[2] Finkelstein J, referring to Hill J’s propositions in Aust-Home Investments,[3] said the following:
“For my own part, I should wish to emphasise that in the absence of a hearing on the merits it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances. To do otherwise would require some prediction of the outcome of the case. It seems to me that the third proposition stated by Hill J was intended to cover the situation where the Court was in fact able to form a clear view about the merits of a case without a trial. So, if a claim is patently hopeless that would be a good reason to make an order for costs against the claimant. Likewise if a defence was bound to fail that would be good reason for awarding costs in favour of the claimant. But I venture to suggest that there will be very few cases where the issues will be sufficiently clear, in the absence of a hearing, for an order for costs to be made in favour of a party.”
[2](1997) 80 FCR 284 at [287]
[3]Australian Securities Commission v Aust-Home Investments Ltd (supra)
17 The decisions in Aust-Home and Gribbles Pathology were considered by Gillard J in Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd& Anor.[4] His Honour said that he would not go as far as Finkelstein J in Gribbles, that it would only be in special circumstances that an order would be made as to costs. He said that if there were no other material before the Court other than the pleadings, then it would be difficult to make an order as to costs. However, his Honour said:
“Even where there are only pleadings before the court, evidence may be adduced which establishes with some degree of certainty the likely outcome of the trial. Of course the evidence must be confined and not venture into areas of disputed fact. But the circumstances may be such that in a brief and succinct way a court can draw a conclusion as to the likely outcome. In the present matter the court has the benefit of not only the pleadings but also a considerable number of affidavits supporting and contesting the plaintiff's case. Much of the evidence is uncontestable.”[5]
[4][2000] VSC 214
[5]at paragraph [49]
18 In fact, his Honour went on to determine costs in a claim as to nuisance, being satisfied he had sufficient information contained in supporting affidavits, much of which was uncontested, to enable a proper determination as to costs.
19 In Champagne View, his Honour referred to the decision of the High Court in Immigration and Ethnic Affairs, Re Minister for; Ex parte Lai Qin,[6] wherein McHugh J stated:
“Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. Where there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action.
…
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. ... but such cases are likely to be rare.”[7]
[6](1997) 186 CLR 622
[7]at pages 624-625
20 From these authorities, I have concluded the following as guiding principles:
· The Court has a wide discretion as to costs.
· It will be only in rare cases that, a proceeding having been resolved, and there being no trial on the merits, that a court would go on to determine whether an order for costs should be made in favour of one or other party.
· However, in some cases, a costs order in favour of one or other party may be made where the court is satisfied there is sufficient evidence, by affidavit or otherwise, to enable the court to form a view as to the following matters:
§ the conduct of the parties generally in the lead up to the litigation;
§ whether the plaintiff acted reasonably in bringing the proceeding;
§ whether the defendant acted reasonably in defending the proceeding;
§ whether the settlement or other disposal of the proceeding reflected a result favourable to one or other parties’ original claim;
§ the conduct of the parties since resolution.
21 Given the determination of the issue as to costs requires some examination of the reasonableness of the plaintiff in the bringing of the action, and of the defendant in defending it, and as to the outcome, it is necessary to examine the plaintiffs’ claim to the right of access over the easement.
22 It was agreed by Counsel that in the enforcement of a right of carriageway across an easement, an obstruction is actionable only if it is appreciable or substantial.[8] There must be a real substantial interference with the enjoyment of the right of way.
[8]Pettey v Parsons [1914] 2 Ch 653 at 662
23 In Mantec Thoroughbreds Pty Ltd v Batur & Anor,[9] Habersberger J was concerned with a claim to enforce a right of carriageway across an easement. Before the parties purchased, respectively, the dominant and servient land, a dam impeded the dominant tenement owners from gaining access along a carriageway easement. Subsequently, the servient tenement owner erected fences across part of the carriageway easement. The owner also erected a gate across the easement which was padlocked, with a key provided to the dominant tenement owner.
[9](2009) 25 VR 507
24 His Honour noted it was an important fact that the dam had been in existence prior to the creation of the easement and ownership by the litigants. Thus, the owners of the dominant land took the property with the obstruction in place and it was unreasonable to contend that the dam be removed. His Honour further concluded that there was no obligation to maintain the full width of the easement; in that case some 10 metres’ wide. The fences put in place which affected, in parts, a 4-metre width of the easement, did not alone constitute a substantial obstruction, because they did not interfere with the right of access.
25 Further, in relation to the locked gate, his Honour said whether a locked gate creates a substantial impediment is a matter to be determined upon the particular circumstances. In that case, the gate provided access from a public road. Expensive stock was located inside the gate and it was not unreasonable for the gate to be locked in order to ensure the stock was secured. His Honour expressed some reservation about whether that view (that is whether a gate should be locked) would be maintained in respect of a road constructed within the property.[10]
[10]at paragraph [111]
The Conduct of the Parties before the Commencement of Litigation
26 Mr Kewley pointed to the statement of Mr May, which noted that in the late 1990s, the carriageway was open except for one gate at the start of the property, and was mostly unfenced. Mr Mah pointed to the gap between the inspection at that time, and the parties taking possession in 2002 or 2003.
27 Mr Kewley referred to a letter from the defendants’ solicitors of 21 December 2005, which claimed the defendants were entitled to erect gates across their property and have locks fitted as long as a key was made available. The reference in that letter to “Pavlov” and to the movements of cattle, reflected a tenor which had persisted throughout the relationship between the parties. The letter further said the defendants were “not inclined to have further negotiations”.
28 Likewise, in the lead up to the litigation, the claim of the plaintiffs was that they be entitled to have the 20-metre easement restored so as to ensure “unimpeded access” upon the easement. That claim was part of the prayer for relief in the plaintiff’s Summons dated 13 December 2011.
29 In neither case did the claims of the plaintiffs and the defendants accurately reflect the entitlement of the parties at law. The plaintiffs were entitled to require the defendants to remove impediments across the easement, but only where those impediments produced substantial obstruction to the right of carriageway. Likewise, the position claimed by the defendants was too rigid. They may have been entitled to construct gates, even lock them, but that very much depended upon the circumstances which prevailed, and whether those steps provided a substantial impediment.
30 Moreover, the stance of the parties appears to have been coloured by the tense relationship which existed as a result of not only this dispute, but various others.
31 The defendants claim that they made reasonable attempts to mediate the dispute.[11] The plaintiffs claim there was good reason for their refusal to mediate given the relationship between the proposed mediators and the defendants.[12] Without hearing evidence on the matter, I am unable to conclude whether the conduct of the parties in proposing and refusing the mediations was unreasonable.
[11]See affidavit of Deirdre Anne Davey, sworn 16 August 2012
[12]See affidavit of Diane Helen Eyckens, sworn 30 August 2012
32 There were further claims by the plaintiffs and defendants as to the conduct of the others. These claims include:
· The defendants had placed obstructions, including fence posts, wire and the like, along the easement to make it difficult for the plaintiffs to drive along it.
· The defendants had installed gates and fences and taken other steps because their real intention is to purchase the plaintiffs’ land, reflected in a number of conversations to that effect.
· The defendants’ cattle had been aggressive, making it difficult for the plaintiffs to get in and out of their vehicle to open and close the gates.
· Generally, the defendants have behaved in an angry and malicious manner.
· The defendants deny they have ever intended to purchase the plaintiffs’ property.
· The defendants claim that on occasions, the gates have been left open, as a result of which cattle have wandered into areas which have been sprayed with herbicide.
33 I have concluded that without hearing evidence, tested under cross-examination, as to these matters, I am unable to form any conclusion as to whether, in the circumstances that prevailed, the plaintiffs or the defendants acted unreasonably.
34 It is appropriate to examine the works to construct fences and gates across and in the vicinity of the carriageway easement as undertaken by the defendants. A diagrammatic description of the fences and gates is shown on Attachment “B” to the Deed of Settlement. That diagram shows five gates, and a “ring” of fencing around the area of the easement. Work undertaken by the defendants is set forth in the affidavit of Deirdre Anne Davey, sworn 18 December 2011.[13] In summary, the work carried out over the relevant period was as follows:
[13]at paragraph 24 and following
· Gate 2 was installed in approximately 2006. Previously, there was an opening at that point.
· Gate 4 was already in existence before the defendants purchased their land.
· In approximately April 2011, they installed a new fence along the southern boundary, following the line of a creek, some distance in from a previous fence.
· A new Gate 1 was installed to replace an existing gate.
· A new fence was installed between Gates 1 and 2.
· Gate 3 and a line of fencing going to the north were installed by the defendants in about 2006. However, about two months after its installation, the gate was removed by some unknown person.
· Gate 5 was installed.
35 The purpose of the installation of Gate 2 and the ring of fencing to the north and south of the easement was to secure what is said to be a fertile paddock for proper animal management. It also enables cattle to be placed in the paddock and removed from it for the purpose of herbicide spraying. The area has also been used for cropping from time to time.
36 The purpose of Gate 3 and the line of fencing to the north was to create a stockyard in the area.
The bringing of the Proceeding and its Defence
37 On 18 October 2011, solicitors for the plaintiffs wrote to the defendants demanding that the defendants remove or reconfigure the gates so as to restore the 20-metre easement.[14]
[14]See Exhibit DHE7 to the affidavit of Diane Helen Eyckens, sworn 9 December 2011
38 In response, by letter dated 3 November 2011, the solicitor for the defendants responded, denying the plaintiffs’ claim, saying there had been no change in the number or location of the gates since the plaintiffs had purchased their property.
39 As earlier stated, while the claims made in the respective letters of demand and response did not accurately reflect the law, I am satisfied that the only option to the plaintiffs was to issue the proceeding. Thus, their action in bringing the proceeding was reasonable. Further, given the claims by the plaintiffs at the time for unimpeded access across the easement, the response by the defendants in defending the proceeding was also reasonable.
The Resolution
40 I am satisfied it is appropriate to have regard to the terms of the resolution of the proceeding. Those terms are set forth in paragraph 1 and depicted in Attachment “C” to the Terms of Settlement. In summary, the defendants agreed to:
· Remove Gate 2.
· The fence running between Gates 1 and 2 be reconfigured to the south. This meant that the fence in the area of the easement was removed to the south.
· Gate 4 be widened to 6 metres without posts to obstruct the opening as a double gate.
· The work be carried out by the defendants, but the costs of material be equally shared between the parties.
The Conduct of the Parties Since
41 According to the recently filed affidavits, the plaintiffs claim the erection of the new fencing by the defendants was not in accordance with the Deed of Settlement. The defendants claim that the plaintiffs had not paid one-half of the cost of the materials involved.
42 Again, without these matters being tested by evidence and cross-examination, it is impossible to determine whether either or both of the parties have acted unreasonably.
Conclusions
43 I have concluded that the appropriate order is that each party bear their own costs. As stated, I am unable to say without hearing evidence as to whether either the plaintiffs’ or the defendants’ conduct was unreasonable in the lead up to the litigation.
44 I do have significant concerns about the conduct of the defendants in placing a lock on one or some of the gates. In the event of illness or fire, a lock would create a significant impediment to egress and access. If the allegations of the plaintiffs made in paragraph 11 of the affidavit of Diane Helen Eyckens, sworn 30 August 2012, are correct, then the locking of the gate and the failure by the defendants to unlock it upon request is, in my view, a serious impediment to the right of access by the plaintiffs. That situation is not analogous to the locking of the gates referred to in Mantec.[15] While I am not called upon to determine the matter, in my view there should be no locks on any of the gates, even notwithstanding the claim by the defendants about proper cattle management.
[15]Mantec Thoroughbreds Pty Ltd v Batur & Anor (supra)
45 However, the issue of the locking of the gates is not, of itself, sufficient to justify an order as to costs.
46 As stated, without the claims of the parties set forth in their affidavits being tested, I am not able to form any conclusions as to whether the conduct of the parties was unreasonable in the lead up to the issue of the litigation. I accept the plaintiffs’ action in issuing the proceedings was reasonable, and likewise, given the claims which the defendants faced, their action in defending the proceeding was reasonable.
47 It is no easy matter to determine whether the resolution of the proceeding by the Deed of Settlement reflected a success for the plaintiffs. It appears to me that the resolution of the proceeding was a compromise. The plaintiffs did not get all they sought, nor did the settlement reflect the stance of the defendants that they were entitled to place fences and gates across the easement as they had done. Like in many cases, the end settlement was a compromise.
48 Again, while there are allegations about the conduct of the parties since resolution, without those allegations being tested, I am not in a position to determine whether the stance taken by either party was unreasonable.
49 For all of these reasons, the appropriate order is that each party bear their own costs.
- - -
Appendix 1
Plan of the Subject Land
0
7
0