Jamison 17 Pty Ltd v Jaynick Pty Ltd & Anor (No 2) - [2024] NSWSC 83

Supreme Court

New South Wales

Medium Neutral Citation: Jamison 17 Pty Ltd v Jaynick Pty Ltd & Anor (No 2) [2024] NSWSC 83
Hearing dates: On the papers
Date of orders: 9 February 2024
Decision date: 09 February 2024
Jurisdiction: Equity
Before: Henry J
Decision:
(1) Subject to any other order made in the proceedings, the Defendants to pay 80% of the Plaintiff’s costs of the proceedings on an ordinary basis as agreed or assessed.

Catchwords:
COSTS – party/party – costs of proceedings concerning right of carriageway – where plaintiff substantially but not entirely successful – where adverse factual findings against defendants – broad brush apportionment of costs in case of mixed success – Contempt of court – where plaintiff ordered to pay costs after withdrawing earlier contempt application – where defendants now admitted breach of orders – whether earlier costs order should be revisited – application of UCPR r 36.16(3)

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98(1)
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.2

Cases Cited:
ASIC v Sigalla (No 4) [2011] NSWSC 62
Attorney-General (NSW) v Dean (1990) 20 NSWLR 650
Attorney-General for NSW v Mundey [1972] 2 NSWLR 887
Bartlett v Australia & New Zealand Banking Group Ltd (No 2) (2016) 92 NSWLR 670; [2016] NSWCA 142
Blacktown City Council v Nitopi [2019] NSWLEC 40
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd (No 3) [2023] NSWCA 316
Hinch v Attorney General for the State of Victoria (1987) 164 CLR 15
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Jamison 17 Pty Ltd v Jaynick Pty Ltd [2023] NSWSC 1562
Mahaffy v Mahaffy [2018] NSWCA 42
McIntyre v Perkes (1988) 15 NSWLR 417
Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Rodi v Gelonesi [2016] NSWCA 348
Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2); Taylor v LK Group Investments Pty Ltd (No 2) [2023] NSWCA 322

Category: Costs
Parties: Jamison 17 Pty Ltd (Plaintiff)
Jaynick Pty Ltd (First Defendant)
Nicholas Ames (Third Defendant)
Representation:
Counsel:
T Lynch SC with J Doyle (Plaintiff)
A Jucha (First and Third Defendants)
Solicitors:
HP Legal (Plaintiff)
WMD Law (First and Third Defendants)

File Number(s): 2020/00321959
Publication restriction: Nil

JUDGMENT

On 14 December 2023, I delivered reasons for judgment in these proceedings, which involved disputes about the use of a right of carriageway: Jamison 17 Pty Ltd v Jaynick Pty Ltd [2023] NSWSC 1562 (Judgment).
These reasons deal with costs, the parties having not agreed on that issue. They assume familiarity with the Judgment and adopt the same terms and abbreviations it uses.
As the Judgment records, I granted Jamison final relief by ordering the Defendants not to leave boats, vehicles or other goods on the right of carriageway…

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: [2024] NSWSC 83
Decision Date: 09 February 2024

CaseChat Overview and Summary

Jamison 17 Pty Ltd, the plaintiff, sought to enforce a right of carriageway over land owned by Jaynick Pty Ltd, the first defendant. The second defendant, Mr. and Mrs. Smith, was involved in the proceedings as they had purchased the property from Jaynick Pty Ltd after the initial proceedings had commenced. The dispute centred on the enforceability of an easement and the costs associated with the litigation. The case was heard in the Supreme Court of New South Wales.

The central legal issues the court needed to address were whether the plaintiff was entitled to recover costs from the defendants due to their mixed success in the proceedings and the applicability of UCPR r 36.16(3) in light of the defendants' admission of breaching court orders. The court had to consider the principles of broad brush apportionment of costs in cases of mixed success and the consequences of the defendants' failure to adhere to the court's orders.

In reaching its decision, the court held that the plaintiff was substantially successful in enforcing their right of carriageway but not entirely so, as certain ancillary issues were not resolved in their favour. The court applied the principle of broad brush apportionment of costs, acknowledging the defendants' breaches of orders but finding that the plaintiff's withdrawal of a contempt application did not warrant a revisit of the costs order. The court concluded that the costs order made earlier should stand, and the defendants were to pay the plaintiff's costs of the proceedings.

The court also considered the defendants' admission of breaching the orders but determined that it did not affect the earlier costs order. The court found that UCPR r 36.16(3) did not provide a basis for revisiting the costs order. The final orders required the defendants to pay the plaintiff's costs of the proceedings, as previously determined, and to comply with the terms of the court's earlier orders.

Orders