Kilsyth Pastoral Pty Ltd v Pitson

[2025] NSWSC 627

Supreme Court

New South Wales

Medium Neutral Citation:

Kilsyth Pastoral Pty Ltd v Pitson [2025] NSWSC 627

Hearing dates:

On the papers – last submissions 11 June 2025

Date of orders:

16 June 2025

Decision date:

16 June 2025

Jurisdiction:

Equity - Real Property List

Before:

Pike J

Decision:

(1)   The plaintiff has leave to discontinue the proceedings and I dispense with the need to file a notice of discontinuance.

(2)   The plaintiff pay the defendants’ costs of the proceedings.

Catchwords:

COSTS – Discontinuance – UCPR r 42.19 – whether otherwise costs order should be made – otherwise order not made – no question of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 42.19

Cases Cited:

Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32

Galea v Camilleri [2019] NSWSC 167

In the matter of Nutrimonde Pty Ltd [2024] NSWSC 806

Maloney v Putu Pty Ltd [2023] NSWSC 1148

Zhao v Ausin Group (Australia) Pty Ltd (No 2) [2023] FCA 498

Texts Cited:

Nil

Category:

Costs

Parties:

Kilsyth Pastoral Pty Ltd (plaintiff)
Colin Alfred Pitson (first defendant)
Karen Wendy Pitson (second defendant)

Representation:

Counsel:
D Parish (plaintiff)
C Ireland / A Jucha (defendants)

Solicitors:
Keating Avery Solicitors (plaintiff)
KPW Lawyers (defendants)

File Number(s):

2024/00422108

Publication restriction:

Nil

JUDGMENT

1. These proceedings concern an access dispute between neighbours of rural land. Access to the plaintiff’s homestead is by way of a driveway that bisects the defendants’ land.

2. The proceedings were commenced on 13 November 2024. On 16 May 2025, the plaintiff filed a motion seeking leave to discontinue the proceedings on the basis that pursuant to rule 42.19(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the court “otherwise orders” that each party bears their own costs in respect of the proceedings.

3. The parties prepared evidence and quite extensive written submissions on the question of costs. The motion was listed in the Real Property List on 13 June 2025. The parties indicated on that occasion, quite sensibly, that they were content for the Court to deal with the issue on the papers.

4. For the reasons set out below, I am not satisfied that the Court should otherwise order. The plaintiff should pay the defendants’ costs of the proceedings.

Overview of the facts

5. Whilst each party relied on a number of affidavits, the following overview of the facts, including the procedural chronology of the proceedings, suffices for present purposes.

6. The plaintiff (Kilsyth) and the defendants (the Pitsons) are neighbours on rural properties in Holbrook, NSW. The two properties had been created from the subdivision of a larger farm in about 1993. From that time in 1993, access to the homestead on the property owned by Kilsyth was by way of a driveway to Racecourse Road that bisected the Pitsons’ land. A lane ran along the northern edge of the parties’ properties (Burgess Lane).

7. The Pitsons have owned their property since about 2019. Kilsyth has owned its property since December 2023.

8. A dispute about the use of the driveway by Kilsyth arose in about January 2024.

9. By June 2024, solicitors had become involved. On 14 June 2024, solicitors for Kilsyth wrote to the Pitsons. The letter asserted that there existed an unregistered carriageway easement for the purposes of Kilsyth accessing its property from Racecourse Road, across the Pitsons’ land. Reference was made in that letter to the decision of Peden J in Maloney v Putu Pty Ltd [2023] NSWSC 1148 (Maloney) which was said to support Kilsyth’s position. The letter warned that if the Pitsons took any steps to impede Kilsyth’s access right, Kilsyth reserved the right to commence proceedings.

10. On 18 July 2024, the Pitsons’ solicitor responded that he had informed his clients that there is no basis to support Kilsyth’s claim. The letter also stated:

Apart from a number of factual inaccuracies in your letter, the authority you have sought to rely on can be distinguished in a number of fundamental ways to the facts in this matter.

I remain happy to discuss to avoid ongoing costs to both parties.

11. A further email was sent by the Pitsons’ solicitor dated 31 July 2024 repeating the invitation set out immediately above. It appears the 18 July 2024 email may have been wrongly addressed.

12. There then appears to have been a without prejudice discussion between the respective solicitors on 31 July 2024. This does not appear to have involved any discussion of the underlying facts.

13. On 12 November 2024, the solicitor for Kilsyth wrote to the Pitsons’ solicitor enquiring as to whether he had instructions to accept service. This appears to have been preceded by the Pitsons placing padlocks across Kilsyth’s access to the homestead.

14. Proceedings were commenced on 13 November 2024 when an application for short service was granted, returnable on 15 November 2024. The summons sought an easement by prescription. On 15 November 2024, interlocutory orders were made by consent to continue to allow Kilsyth to access Kilsyth’s property with some exclusions.

15. A statement of claim was filed on 6 December 2024.

16. On 14 February 2025, the Pitsons were granted further time to file their defence and evidence. A defence was filed on 20 March 2025, together with a number of affidavits on behalf of the Pitsons.

17. On 21 March 2025, orders were made by consent for Kilsyth to file its reply to the defence by 4 April 2025 and any further evidence by 10 April 2025. No reply or further evidence was filed.

18. By 28 April 2025, Kilsyth had determined to seek to discontinue the proceedings. When no agreement was reached as to the terms, the motion was filed.

19. The evidence served by the Pitsons included evidence from the ex-owners of the properties deposing to the fact that there had been an ongoing arrangement since the farm subdivision in the 1990’s to grant access to the driveway in exchange for the land Kilsyth now own providing water to the Pitsons’ land and another lot. Kilsyth accepts that evidence of a quid pro quo or an agreement is fatal to a claim of prescriptive easement: see Maloney at [12]ff.

Overview of the respective positions

20. The essential matter relied on by Kilsyth for the Court to otherwise order was a contention that the Pitsons held information to themselves – namely the consensual nature of the earlier access – that had it been disclosed would have obviated the need for the parties to expend money in litigation. Reliance was placed on Zhao v Ausin Group (Australia) Pty Ltd (No 2) [2023] FCA 498 (Zhao) at [38] per McElwaine J.

21. The Pitsons contended that there was no reason for the Court to otherwise order. Kilsyth had simply given up a fundamentally flawed case. There had been no failure to disclose information. The 18 July 2024 email indicated that Maloney was distinguishable on the facts yet the solicitor for Kilsyth did not seek any further detail or seek to engage the Pitsons on why they contended the facts were different.

Relevant Principles

22. The effect of UCPR r 42.19(2) in the present situation is that unless the court “orders otherwise”, Kilsyth must pay the Pitsons’ costs of the proceedings.

23. The relevant principles for when a court will order otherwise are well settled. The authorities were comprehensively analysed by McGrath J in In the matter of Nutrimonde Pty Ltd [2024] NSWSC 806 at [56]-[100].

24. It is clear that there must be “some positive ground or good reason for departing from the ordinary course”: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 at [54] per Hodgson JA (Tobias and Basten JJA agreeing).

Determination

25. I am not satisfied that there is any positive ground or good reason for departing from the ordinary course that Kilsyth, as the discontinuing party, pay the Pitsons’ costs of the proceedings.

26. Prior to the commencement of the proceedings, Kilsyth asserted that it had a right of access. Reliance was placed on Maloney. The Pitsons responded contending this was not the case and asserting that Maloney was distinguishable on the facts. There does not appear to have been any attempt to engage with the Pitsons as to the Pitsons’ view of the facts. Kilsyth went ahead and commenced the proceedings in the knowledge of the Pitsons’ position. It proceeded on the basis that it was entitled to an easement by prescription. Had Kilsyth been interested in understanding why the Pitsons did not agree, it could have engaged. It did not.

27. It also appears that Kilsyth never had any direct, as opposed to hearsay evidence, in support of its claim.

28. There is nothing, in any view, in the conduct of the Pitsons which would provide a basis for the Court to order otherwise. There is also no other reason demonstrated. The decisions in Zhao and Galea v Camilleri [2019] NSWSC 167 relied on by Kilsyth are readily distinguishable. I therefore decline to order otherwise.

Conclusion and orders

29. For the reasons set out above, I decline to order otherwise.

30. The orders of the Court are:

1. The plaintiff has leave to discontinue the proceedings and I dispense with the need to file a notice of discontinuance.

2. The plaintiff pay the defendants’ costs of the proceedings.

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Decision last updated: 16 June 2025