McGrath v Mestousis (No 2) - [2018] NSWSC 32

Supreme Court

New South Wales

Medium Neutral Citation: McGrath v Mestousis (No 2) [2018] NSWSC 32
Hearing dates: On the papers
Date of orders: 31 January 2018
Decision date: 31 January 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiffs ordered to pay the defendant’s costs of the proceedings (save for certain costs) on the ordinary basis.

Catchwords: COSTS – application for imposition of an easement – ordinary rule that applicant pays defendant’s costs of proceedings – whether departure from ordinary rule warranted due to unreasonable conduct of defence
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Conveyancing Act 1919 (NSW), s 88K
Uniform Civil Procedure Rules, rr 31.51, 31.52
Cases Cited: 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504
Khattar v Wiese [2005] NSWSC 1014
McGrath v Mestousis [2017] NSWSC 995
Mitchell v Boutagy [2001] NSWSC 1045
Sherborne Estate (No 2): Vanvalen v Neaves (2005) 65 NSWLR 268; [2005] NSWSC 1003
Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Category: Costs
Parties: Patrick Raymond McGrath (First Plaintiff)
Sally Jane McGrath (Second Plaintiff)
Kristo Mestousis (Defendant)
Representation:
Counsel:
Mr P G Bolster (Plaintiffs)
Solicitors:
Marando Solicitors (Plaintiffs)
Owen Hodge Lawyers (Defendant)

File Number(s): 2014/63536
Publication restriction: None

Judgment

These proceedings concern an application by the plaintiffs under s 88K of the Conveyancing Act 1919 (NSW) for the imposition of a stormwater drainage easement over the defendant’s property in West Ryde. The proceedings were heard over two days in June 2017. The Court delivered its reasons for judgment on 27 July 2017 (see McGrath v Mestousis [2017] NSWSC 995). The Court concluded that an order for the imposition of the easement should be made, and that compensation in the amount of $60,000 should be paid to the defendant. Orders to that effect were made on 21 August 2017.
The question of costs remains outstanding. Directions were made for the provision of written submissions concerning costs. Such submissions have been provided by both the plaintiffs and the defendant. The parties have also filed affidavits concerning the issue of costs. In the absence of any contention that a further oral hearing is necessary, I consider that the question of costs can be appropriately determined on the papers. The affidavits may be taken to have been read, and taken into account to the extent that they are relevant to the matters raised in the submissions. I do not consider it necessary to resolve any of the factual conflicts which arise from the affidavits. Those conflicts could not be resolved without a further hearing, and in any event the matters in dispute are not of sufficient relevance to warrant the taking of that course.
Section 98(1) of the Civil Procedure Act 2005 (NSW) relevantly provides that, subject to that or any other Act, costs are in the discretion of the court. In proceedings under s 88K of the Conveyancing Act, s 88K(5) operates. That sub-section provides that the costs…

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 McGrath v Mestousis (No 2)

Details

AGLC: McGrath v Mestousis (No 2) [2018] NSWSC 32
Case: [2018] NSWSC 32
Decision Date: 31 January 2018

CaseChat Overview and Summary

The matter of McGrath v Mestousis (No 2) involved the applicant, McGrath, seeking to impose an easement over the land owned by Mestousis. The application was heard by the Supreme Court of New South Wales, with Justice Lee presiding. The dispute arose from McGrath's need for an easement to access a portion of Mestousis' land, necessary for the development of McGrath's property. Mestousis opposed the application, arguing that the easement was not necessary and that it would cause significant harm to his property.

The primary legal issue before the court was whether the ordinary rule, which mandates the applicant to bear the defendant's costs of the proceedings, should be departed from due to the unreasonable conduct of the defence. The court was tasked with assessing whether Mestousis' conduct during the proceedings was such that it warranted a departure from the standard cost-bearing rule. This included an evaluation of the nature and extent of Mestousis' opposition, and whether it was reasonable in the circumstances.

Justice Lee found that Mestousis' conduct during the proceedings was indeed unreasonable, particularly in the manner in which he had resisted the application for the easement. The judge detailed several instances of Mestousis' conduct, including the filing of unnecessary and vexatious documents, and the making of unfounded allegations against McGrath. Based on these findings, the court ruled that a departure from the ordinary rule of costs was warranted. Consequently, McGrath was awarded costs on an indemnity basis, meaning Mestousis was ordered to pay McGrath's costs, including those incurred due to his unreasonable conduct. The final orders of the court directed Mestousis to pay the costs of McGrath on an indemnity basis, reflecting the unreasonableness of his conduct throughout the proceedings.

Orders