Gordon v Lever (No 3)

[2020] NSWCA 44

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Gordon v Lever (No 3) [2020] NSWCA 44
Hearing dates:	On the papers
Date of orders:	20 March 2020
Decision date:	20 March 2020
Before:	Bell P; Payne JA and Emmett AJA
Decision:	No variation of costs order
Catchwords:	COSTS – discretion as to variation of costs order – Calderbank letter
Cases Cited:	Gordon v Lever (No 2) [2019] NSWCA 275
Category:	Costs
Parties:	Stanley Robert Gordon (First Appellant) Christine Margaret Gordon (Second Appellant) Allen John Lever (First Respondent) Debra Ann Lever (Second Respondent)
Representation:	Counsel: M R Hall SC, L Byrne (Appellants) G A Sirtes SC, C Simpson (Respondents)   Solicitors: John F Gibson (Appellants) Parker & Kissane Solicitors (Respondents)
File Number(s):	2019/11223
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Expedition List Citation: [2018] NSWSC 1888 and [2019] NSWSC 571 Date of Decision: 14 December 2018 and 17 May 2019 Before: Sackar J File Number(s): 2017/55270

Judgment

1. THE COURT: The Court delivered judgment on the substantive appeal on 13 November 2019: Gordon v Lever (No 2) [2019] NSWCA 275. The Levers were ordered to pay the Gordons’ costs of the appeal.

2. Subsequent to delivery of judgment, the Gordons have sought to vary this costs order by adding to the costs order in their favour the words “assessed on the ordinary basis up to 4 April 2019, and on an indemnity basis thereafter.” Written submissions have been received and considered by the Court.

3. This application is put by reference to a without prejudice offer by the Gordons to the Levers dated 4 April 2019 to the following effect:

“The Appellant hereby offers to discontinue their Appeal in this matter on the following basis:-

1.   That the Respondent agrees to the registration of the Right of Carriageway and Terms thereon as put by the Plaintiff to the Court below (Terms Granting Easement).

2.   That each party bear their own costs of the Appeal.

Having been able to consider the grounds of the Appeal put by the Appellant, you would be able to assess that the Appellant has excellent prospects of success in this Appeal. Further that the Orders of the Court below are impractical at best and legally non-compliant and unjust.

Acceptance of the Plaintiff’s terms provides a practical solution which benefits your client and saves each party the not insubstantial costs that further litigation of this matter incurs.

This offer is open for a period of 14 days from the date hereof.

Should you determine not to accept this offer, we reserve the right to rely on this offer on the question of costs before the Court and in this respect, we rely on the principles enunciated in the matter of Calderbank which are adopted by the Court in determining costs.”

4. Whilst it is correct that the Gordons enjoyed a large measure of success on the appeal, the terms upon which the right of carriageway was granted were not precisely those that had been proffered by the Gordons and, as Bell P observed at [99] of the principal decision on the appeal, were “something of an amalgam of the terms proposed by both parties, formulated in a manner designed to give certainty to the parties and clarity as to their rights.”

5. Further, as Bell P observed at [93]−[95]:

“Senior Counsel for the Levers pointed out that the present case was, in many respects, novel and there is some force to that submission. Further, the Levers’ opposition to an unrestricted easement was understandable in light of the fact that the Gordons had made use of the ford out of absolute necessity for a number of years following the washing away of the Lever Bridge in 2015. Absolute necessity, of course, is different to the statutory concept of reasonable necessity, but the Levers’ initial opposition was, as I have said, nevertheless understandable. To the extent that the introduction of evidence relating to a causeway was based on a mistaken assumption as to the Gordons’ legal entitlement to do so, unnecessary expenses have been incurred. It would be very difficult, however, to disentangle this evidence from the general hydrology evidence that was led.

In their written submissions, the Gordons were critical of the costs that have apparently been incurred by the Levers in the proceedings to date. That is a matter that will no doubt be taken into account on any assessment of costs. It does not found a basis for departing from the presumption to which s 88K(5) of the Conveyancing Act gives effect.

I do not consider, in all the circumstances, that a case has been made out for a departure from the default position set out in s 88K(5) of the Conveyancing Act in relation to the two sets of proceedings at first instance before the primary judge. I also take into account the fact that the Levers will be required to pay the Gordons’ costs of the appeal to this Court.”

6. We would not, in the exercise of our discretion, vary the costs order in the way sought by the Gordons, essentially for the same reasons that underpinned the assessment of costs at first instance coupled with the matter referred to at [4] above. Further, any variation of costs orders, had one been appropriate, would not have run from the date of the offer but, rather, from a later date, representing a reasonable time for its consideration.

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Decision last updated: 20 March 2020