Laris v Lin (No. 3)

[2016] NSWSC 727

Supreme Court

New South Wales

Medium Neutral Citation:	Laris v Lin (No. 3) [2016] NSWSC 727
Hearing dates:	6 June 2016
Date of orders:	06 June 2016
Decision date:	06 June 2016
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Declaration made as to the fencing of the boundary between Lot 6 and Lot 7. Orders made for each party to bear his own costs of the proceedings. The trespass issues on the Cross-Claim (prayer for relief 7) adjourned for further directions to the Registrar.
Catchwords:	FINAL RELIEF AND COSTS – judgment given dismissing a claim for relief under Conveyancing Act 1919, s 89 but granting some relief as to the rights created under an easement – submissions as to the proper form of a declaration to be made consequent upon the Court’s reasons in the principal judgment – whether each party should bear its own costs of the proceedings or whether some other order should be made – what directions should be made with respect to the balance of the issues in the proceedings, namely a claim for trespass.
Legislation Cited:	Conveyancing Act 1919, s 89 Uniform Civil Procedure Rules 2005, r 42.20
Cases Cited:	Australia Wide Airlines Limited v Aspirion Pty Ltd [2006] NSWCA 365 Laris v Lin [2015] NSWSC 473 Laris v Lin (No. 2) [2016] NSWSC 560
Category:	Procedural and other rulings
Parties:	Plaintiff/cross-defendant: George Laris Defendant/cross-claimant: Chun Hung Lin
Representation:	Solicitors: Plaintiff/cross-defendant: in person Defendant/cross-claimant: Robert Adrian Stoyef
File Number(s):	2013/304889
Publication restriction:	No

EX TEMPORE Judgment

1. This is my third judgment in these proceedings. This judgment should be read with the Court's previous judgments in the proceedings: Laris v Lin [2015] NSWSC 473; Laris v Lin (No. 2) [2016] NSWSC 560. Events, matters and things are referred to in this judgment in the same way as they are in the Court's previous judgments.

2. In the Court's last judgment, the principal judgment in the proceedings, Mr Lin failed to obtain a grant of relief under Conveyancing Act 1919, s 89 to extinguish or vary the 1997 and 2010 easements. Mr Lin failed to make out sufficient grounds for the Court to exercise its discretion under s 89, so prayers for relief 1, 2 and 6 of his Cross-Summons were dismissed. The Court had already dismissed Mr Laris' Summons in the proceedings, in April 2015.

3. Three issues require consideration now: (1) the form of the declaration, (2) costs and (3) the disposition of the balance of the proceedings.

(1) The Fencing Declaration

4. Mr Stoyef proposes a form of declaration to give effect to the Court's reasons concerning the fencing of the northern boundary of Lot 7, the matter I referred to in [102] of the second judgment. The form of declaration that Mr Stoyef seeks to have made appears to me to be satisfactory and to give effect to the Court's reasons. In particular it recognises that any fencing of the boundary must always allow for the free exercise of the rights of the owner of Lot 8 over and through Lot 7. The Court will therefore make the declaration.

(2) Costs

5. Today Mr Stoyef, on behalf of Mr Lin, submits in conformity with the indication given in the Court's second judgment (at [127]) that each party should bear his own costs of these proceedings. But he argues for a slight variation to that result. He argues that the Court should make an order for costs against Mr Laris upon the Court's dismissal of Mr Laris' Summons on 24 April 2015. He argues that it follows from the dismissal of the Summons under Uniform Civil Procedure Rule 2005 (UCPR), r 42.20 that the plaintiff should pay the defendant's costs of that part of the proceedings that has been dismissed.

6. The costs involved are not great. Mr Stoyef has indicated that the costs incurred in the Summons that was dismissed are a little less than $2,700. He submits that according to UCPR, r 42.20 and the decision of the Court of Appeal in AustraliaWide Airlines Limited v Aspirion Pty Ltd [2006] NSWCA 365 per Bryson J at [11], [12] and [46] to [54], and Basten JA at [63] to [66] that the Court can only order otherwise, if there is a discretionary reason to depart from what UCPR, r 42.20(1) provides.

7. The text of UCPR, r 42.20 is as follows:

“42.20 Dismissal of proceedings etc

(1)   If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed.”

8. The provision allows the Court to "order otherwise". But the discretion to do so must be exercised judicially in accordance with recognised principles.

9. After considering Mr Stoyef's submissions, in my view, this is a case where the Court should order otherwise.

10. The relief sought in the Summons in the proceedings substantially overlapped with the Cross-Summons. This overlap was identified in the Court's first judgment at [28]. In my view, the discretionary outcome of the case based upon the Cross-Claim should embrace the Summons as well, because of the overlap between the two. So little time was spent at the hearing on the Summons that separate consideration of it seems hardly to be warranted.

11. Mr Stoyef further argues that legal costs have been incurred on the Summons and that Mr Laris started this case and that Mr Lin would not have pursued the matter in the Supreme Court but for Mr Laris commencing the proceedings. But I do not think this is correct. It was open to Mr Lin to drop these proceedings once the Summons was dismissed. But he did not do so and he is still pursuing the trespass claim. I do not think this is a very persuasive argument.

12. As the Summons is really not separate from the Cross-Summons, the dismissal of the Summons should be embraced in the Court's overall judgment that each party should pay their own costs of these proceedings and the Court will so order.

(3) The Trespass Claim

13. The remaining issue is what is the disposition of the trespass claim made in prayer for relief 7 of the cross-claim. When giving judgment on 9 May 2016 the Court ordered that that prayer for relief be tried separately from all other issues in these proceedings. That should happen but the matter should first be listed before the Registrar to ensure that it is ready for trial.

14. When the matter came before me for hearing it was not really ready for trial. The Court made directions to allow for the filing of further evidence to get it fully ready for trial. As a result of that, the Court was able to determine all the prayers for relief on the Cross-Claim apart from prayer 7, the claim for trespass. The appropriate course is for the parties to indicate to the Registrar when they are ready for the trial of the trespass claim. Once the trespass claim is ready for hearing, at that point the parties can ask for the Registrar to list it for hearing before a judge.

15. Because I have not made findings on credit in a way that would disqualify me from hearing the rest of these proceedings, it is open to the Registrar if she wishes to list the matter before me, when it is ready.

16. So the order I will make in this regard is that the remainder of these proceedings, namely, prayer for relief 7 on the cross-claim, be adjourned for hearing to the Registrar at 9.30am on Monday, 22 August 2016 for directions.

17. Accordingly, the Court makes the following orders and declarations in the proceedings:

1. Declare that neither the 1997 easement (DP266903) or the 2010 easement (AFS980059S) give the owner of Lot 1 in DP743076 any right to enter or exit Lot 7 in DP14354 through the northern boundary of Lot 7 in DP14354, being the boundary between Lot 7 in DP14354 and Lots 1 and 2 in DP14354, and that as a consequence the owner of Lot 7 in DP14354 may fence the boundary between Lot 7 in DP14354 and Lots 1 and 2 in DP14354 subject only to the rights of the owner of Lot 8 in DP14354 created by the easement recorded as B476301.

2. Each party is to bear its own costs in these proceedings.

3. The remaining issues in these proceedings encompassed in prayer for relief on the cross-claim are adjourned for further directions before the Registrar in Equity at 9.30am on Monday, 22 August 2016 with a view to them being listed for hearing when they are ready with all evidence served.

4. That exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

5. Note the exhibits have been returned to the parties, and that the proceedings have not finalised, the matter should not be closed.

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