Jamison 17 Pty Ltd v Jaynick Pty Ltd & Anor (No 2)

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.