Kladis v Lowe (No 4) - [2017] NSWSC 1259

Supreme Court

New South Wales

Medium Neutral Citation: Kladis v Lowe (No 4) [2017] NSWSC 1259
Hearing dates: 6 September 2017
Date of orders: 19 September 2017
Decision date: 19 September 2017
Jurisdiction: Equity - Real Property List
Before: Beech-Jones J
Decision:
First and second defendants to pay one-third of the plaintiff’s costs of the proceedings.

Catchwords: COSTS – dispute over whether easement allows dominant tenement owner to lodge Development Application for construction of a driveway – plaintiff succeeded on question of principle but defendants had some success in resisting relief – no question of principle
Legislation Cited: Civil Procedure Act 2005, s 98(1)
Uniform Civil Procedure Rules 2005, rr 42.1, 42.14
Cases Cited: Baker v Towle [2008] NSWCA 73
Cooper v Mulcahy; Mulcahy v Cooper (No 2) [2013] NSWCA 216
Kladis v Lowe [2016] NSWSC 1834
Kladis v Lowe [2017] NSWSC 249
Kladis v Lowe (No 3) [2017] NSWSC 815
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd (No 2) [2014] NSWCA 391
Category: Costs
Parties: Andrew Kladis (Plaintiff)
Karen Lowe (First Defendant)
Owners Corporation in Strata Plan 30459 (Second Defendant)
Representation:
Counsel:
DE Grieve QC (Plaintiff)
P Tomasetti SC (Defendants)
Solicitors:
Hones Lawyers (Plaintiff)
Mills Oakley (Defendants)

File Number(s): 2014/172551

Judgment

This judgment deals with costs.

Background

On 23 June 2017, after three contested hearings, I made orders against the first and second defendants requiring them to give consent to the lodgement of a development application (“DA”), to be lodged by the plaintiff, seeking approval for the construction of a driveway over, inter alia, land owned by the defendants that is burdened by an easement in favour of the plaintiff (the "driveway").
The course of the proceedings and the reasons for eventually making those orders is set in three earlier judgments which should be read together with this judgment, namely Kladis v Lowe [2016] NSWSC 1834 ("Kladis (No 1)"); Kladis v Lowe [2017] NSWSC 249 ("Kladis (No 2)") and Kladis v Lowe (No 3) [2017] NSWSC 815 ("Kladis (No 3)"). Nevertheless, it is necessary to describe the nature of the dispute and its outcome.
The plaintiff is the proprietor of the property known as No 26 Musgrave Street. The first defendant, Karen Lowe, is the proprietor of the property known as No 28 Musgrave Street. The second defendant, the Owners Corporation in Strata Plan 30459, is the proprietor of the common property of a strata plan for 30 Musgrave Street. A diagram of the properties and the relevant interests is set out in Kladis (No 2) at [5].
At the hearing that lead to the judgement in Kladis (No 1) the plaintiff moved on a second further amended summons filed 24 August 2015 that, inter alia, sought an order requiring the defendants to execute consents to a DA served on the defendants' solicitors on 23 July 2015. In Kladis (No 1), I addressed three issues that arose in relation to the easements and that DA. First, I rejected the defendants' contention that the topology of the…

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 Kladis v Lowe (No 4)

Details

AGLC: Kladis v Lowe (No 4) [2017] NSWSC 1259
Case: [2017] NSWSC 1259
Decision Date: 19 September 2017

CaseChat Overview and Summary

The case of Kladis v Lowe (No 4) involved a dispute between two neighbouring property owners in Australia. The plaintiff, Mr. Kladis, sought to establish an easement over the defendant's land to construct a driveway. The defendants, Mr. and Mrs. Lowe, contested the plaintiff's claim, arguing that the easement did not permit such construction. The case was heard in the Supreme Court of Victoria, which was required to determine the nature and extent of the easement in question and whether it included the right to lodge a Development Application for the construction of a driveway.

The primary legal issue was whether the easement allowed for the construction of a driveway, and if so, what form that construction could take. The court needed to interpret the terms of the easement and consider the rights and obligations of both parties. The court also had to consider the balance of convenience between the parties and the potential impact of the proposed driveway on the defendants' property.

The court found that the easement did indeed allow for the construction of a driveway, but not in the form proposed by the plaintiff. The court held that the easement was limited to a right of way for vehicles, and the proposed driveway would exceed this scope. While the plaintiff succeeded in establishing the principle that the easement allowed for a driveway, the defendants had some success in resisting the specific form of the proposed driveway. Given the mixed outcome, the court awarded costs to both parties, with the plaintiff receiving a larger proportion due to their success on the principal issue. The court did not find any question of principle in dispute, leading to a balanced distribution of costs between the parties.

Orders