Gong v The Owners Strata Plan 44560 - [2023] NSWSC 157

Supreme Court

New South Wales

Medium Neutral Citation: Gong v The Owners – Strata Plan 44560 [2023] NSWSC 157
Hearing dates: On the papers
Decision date: 27 February 2023
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
1) The Plaintiffs are granted leave to discontinue the proceedings.
2) The parties are to pay their own costs of the proceedings.

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Where specific performance of agreement granting easement and alternatively s 88K relief sought — Where after commencement easement lodged by consent — Where defendant servient owner was unresponsive to plaintiffs’ correspondence prior to commencement — Where no evidence of terms of consent to easement – Where no consent terms for dismissal or discontinuance of proceedings or costs

Legislation Cited:
Conveyancing Act 1919 (NSW) s 88K
Civil Procedure Act 2005 (NSW) s 98
Uniform Civil Procedure Rules 2005 (NSW) rr 42.19, 42.20

Cases Cited:
Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW [2006] NSWCA 129
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681
Re the Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Studholme v Rawson (2020) 102 NSWLR 490

Category: Costs
Parties: Long Yao Gong (First Plaintiff)
Yun Fang Zhang (Second Plaintiff)
The Owners – Strata Plan 44560 (Defendant)
Representation:
Counsel:
J L Polese (Plaintiffs)
Solicitors:
Birch Partners (Plaintiffs)
J S Mueller & Co (Defendant)

File Number(s): 2022/161257
Publication restriction: Nil

Judgment

This is an application for costs to be determined on the papers.
The substantive dispute related to the redevelopment of a residential property into boarding houses in Northmead, New South Wales. The Plaintiffs are the developers. The Defendant is the owners corporation of a strata plan on the neighbouring land.
To advance the development the Plaintiffs sought an easement over the Defendant’s land for the purposes of access and discharge of stormwater into an existing drainage pit.
Various development applications were made, experts were engaged by the parties and discussions took place between them about the nature and extent of an easement.
The Plaintiffs alleged that the parties’ discussions culminated, on 26 June 2020, in an agreement for the grant of the easement subject to approval by the Defendant at a general meeting (Draft Deed).
The Plaintiff paid the Defendant $5,165 for legal costs for the Defendant’s lawyer to prepare the Draft Deed. That Draft Deed included an obligation on the Plaintiffs to pay the Defendant $4,000 for the grant of the easement. There is no evidence as to whether that or any other sum of money has been paid by the Plaintiffs. I note that in May 2022, the Plaintiffs asserted they were ready, willing and able to pay that sum and execute any necessary documents giving effect to the Draft Deed since June 2020.
It was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 157
Decision Date: 27 February 2023

CaseChat Overview and Summary

The case of Gong v The Owners Strata Plan 44560 involved the plaintiffs seeking specific performance of an agreement granting an easement and, alternatively, relief under section 88K of the relevant legislation. The defendants, the owners of the strata plan, were unresponsive to the plaintiffs' correspondence prior to the commencement of the proceedings. After the proceedings were initiated, the easement was lodged by consent, but there was no evidence of the terms of the consent and no terms were provided for the dismissal or discontinuance of the proceedings or for the costs.

The primary legal issue for the court to decide was whether the defendant was entitled to an exception to the general rule that costs follow the event. The court had to consider whether the defendant's unresponsiveness and the lack of evidence regarding the terms of the consent to the easement justified departing from the usual principle that costs follow the event. The court also had to determine whether the defendant was entitled to costs as a result of the consent terms that were not provided.

The court held that the defendant was not entitled to an exception to the general rule that costs follow the event. The court found that the defendant's unresponsiveness to the plaintiffs' correspondence prior to the commencement of the proceedings did not warrant a departure from the usual principle. The court also found that the lack of evidence regarding the terms of the consent to the easement did not justify an exception to the general rule. The court held that the defendant was not entitled to costs as a result of the consent terms that were not provided, as there was no evidence to support such a claim. The court ordered that the plaintiffs were entitled to their costs of the proceeding.

Orders