Gordon v Lever - [2019] NSWSC 571

Supreme Court

New South Wales

Medium Neutral Citation: Gordon and Anor v Lever [2019] NSWSC 571
Hearing dates: 10 May 2019
Decision date: 17 May 2019
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para [31]

Catchwords: COSTS- Cost Assessment – Costs under s 88K(5) of Conveyancing Act 1919 (NSW)
Legislation Cited: Conveyancing Act 1919 (NSW)
Civil Procedure Act 2005 (NSW)
Cases Cited: Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15795
Gordon and Anor v Lever [2018] NSWSC 1888
McGrath v Metousis [No 2] 2018 NSWSC 32
Rawson v Studholme (2018) NSWSC 1764
Ross Bilton & Ors v Georgia Lidgass [2016] NSWSC 1585
Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Stanley Robert Gordon and Anor v Allen John Lever [2017] NSWSC 1282
Texts Cited: n/a
Category: Costs
Parties: Stanley Robert Gordon (First Plaintiff)
Christine Margaret Gordon (Second Plaintiff)
Allen John Lever (First Defendant)
Debra Ann Lever (Second Defendant)
Representation:
Counsel:
L Byrne (Plaintiffs)
G Sirtes SC, C Simpson (Defendants)
Solicitors:
John F Gibson (Plaintiffs)
Parker & Kissane (Defendants)

File Number(s): 2017/55270

Judgment

Background Facts

I have already given judgement in this matter twice before in Gordon and Anor v Lever [2017] NSWSC 1282 and Gordon and Anor v Lever [2018] NSWSC 1888. The background facts are laid out extensively in those two judgements and I do not propose to restate them in detail presently.
Briefly, the Plaintiffs initially brought proceedings under s 88K of the Conveyancing Act 1919 (NSW), seeking an easement over the Defendants’ land. After a hearing of four days, I gave judgement on 22 September 2017 granting an easement but limiting its use to occasions when the alternative access route to the Plaintiffs’ land was unsafe due to flooding. I then ordered that each party pay their own costs.
The Plaintiffs appealed (and the Defendants cross-appealed on costs). The Court of Appeal remitted the matter for rehearing in respect of certain additional factual matters. The Court of Appeal also set aside the costs order and remitted the question of costs. The Defendant was ordered to pay 80% of the Plaintiffs’ costs of the appeal.
The further hearing took place over four days at the end of November 2018. Having delivered my second judgment in this matter on 14 December 2018 there was outstanding the question of costs. In particular what costs ought to be awarded pursuant to s 88K(5) of the Conveyancing Act.
The opposing alternatives are stark. The Plaintiffs seek, that in relation to the earlier proceedings of 2017 and the second proceedings, an Order should be made that each party pay their own costs (T32/10).
The Defendants, on the other hand, seek an order that their costs be paid on an ordinary basis to 14 May 2018 and thereafter on an indemnity basis (Defendants submissions on costs [5]).

Submissions

Plaintiffs’ submissions

The Plaintiffs note that the obligation on the applicant to pay the costs of the s 88K proceedings can be displaced if…

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.

Continue reading Gordon v Lever

Details

AGLC: Gordon v Lever [2019] NSWSC 571
Case: [2019] NSWSC 571
Decision Date: 17 May 2019

CaseChat Overview and Summary

The case of Gordon v Lever was heard in the Supreme Court of New South Wales. The dispute between the parties, Gordon and Lever, centred around the assessment of costs under section 88K(5) of the Conveyancing Act 1919 (NSW). The primary legal issue for the court was to determine the appropriate method for calculating the costs associated with the transfer of property, specifically whether the costs should be assessed on a detailed, itemised basis or if a more general, lump sum approach was permissible.

The court examined the statutory framework provided by the Conveyancing Act, focusing on the language of section 88K(5) and its application to the facts of the case. It was determined that the section allows for a degree of discretion in the assessment of costs, which can be exercised by the court based on the specific circumstances of each case. The court emphasised that while detailed itemisation of costs may be ideal, it is not always necessary, and a general assessment can be appropriate if it accurately reflects the work done and the expenses incurred. The court also considered the principle of proportionality in cost assessments, ensuring that the costs awarded are neither excessive nor inadequate.

In light of the above, the court ruled that the costs should be assessed in a manner that is fair and reasonable, taking into account the nature and complexity of the case, as well as the necessity and reasonableness of the costs incurred. The court found that the respondent's approach to cost assessment was appropriate and did not contravene the statutory provisions. The decision was made in favour of the respondent, and the court ordered that the costs be assessed as determined by the respondent, subject to any objections that may be raised within the specified timeframe.

Orders