CITATION: McKeand v Thomas [2006] NSWSC 1356 HEARING DATE(S): 30 November 2006
JUDGMENT DATE :
30 November 2006JURISDICTION: Equity JUDGMENT OF: Campbell J EX TEMPORE JUDGMENT DATE: 11/30/2006 DECISION: Defendants to pay 75% of the plaintiff's costs. CATCHWORDS: PROCEDURE – appropriate final orders where each party has proposed short minutes – no question of principle – PROCEDURE – Costs – where plaintiffs only partially successful – where plaintiffs had obtained interlocutory relief notwithstanding defendants’ undertaking to maintain status quo – where plaintiffs had rejected offers of compromise including a Calderbank offer LEGISLATION CITED: Supreme Court Act 1970 CASES CITED: McKeand & Anor v Thomas & Anor [2005] NSWSC 419
McKeand v Thomas [2006] NSWSC 1028
Roberts v Rodier [2006] NSWSC 1084
Wheeldon v Burrows (1879) 12 Ch D 31PARTIES: Ross Tyndall McKeand - First Plaintiff
Diane Elizabeth McKeand - Second Plaintiff
Mareta Thomas - First Defendant
Fred Thomas - Second DefendantFILE NUMBER(S): SC 1864/05 COUNSEL: F Corsaro SC; B Sharpe - Plaintiffs
V Culkoff - DefendantsSOLICITORS: NOT Lawyers - Plaintiffs
Steven Klinger - Defendants
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST
CAMPBELL J
THURSDAY 30 NOVEMBER 2006
1864/05 ROSS TYNDALL McKEAND & ANOR v MARETA THOMAS & ANOR
JUDGMENT – Ex Tempore
1 HIS HONOUR: I gave judgment in this matter on 25 October 2006, McKeand v Thomas [2006] NSWSC 1028.
2 The issues that were involved in the case are ones that were set out at paragraph [7] of that judgment. In broad terms, the outcome of the case was that there was an agreement between Mr McKeand and Mr Thomas for the granting of an easement, but Mr Thomas did not have authority to bind Mrs Thomas, that Mrs Thomas had not ratified the precise agreement that Mr Thomas had made, but had ratified what might be regarded as a part of that agreement, namely, the granting of permission for cables to remain in the trench on Mrs Thomas’ land. In circumstances where the agreement had not been ratified by Mrs Thomas, the fourth issue, concerning part performance, did not arise. There was found to be an estoppel which prevented Mrs Thomas from refusing to treat herself as bound to permit the cables remaining in the land, although not an estoppel, preventing her from refusing to treat herself as bound to grant an easement. No easement was granted under 88K. Mr Thomas was found to have engaged in a breach of warranty of authority, resulting in damages for that breach, in the sum of $23,430. The question of negligent misrepresentation did not really arise, and other questions concerning interest and costs were not disposed of in that hearing.
3 As a result of the proceedings, two alternative forms of short minutes of order have been presented. In my view there is utility in making a declaration that there was no oral or other agreement entered into between the plaintiffs and Mrs Thomas for the creation of any easement.…
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- McKeand v Thomas [2006] NSWSC 1356
- Case
- [2006] NSWSC 1356
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CaseChat Overview and Summary
The legal issues at the heart of this case revolved around the appropriate final orders to be made following a partial victory by the plaintiffs. The court had to consider the procedural aspects of finalizing the orders, including the implications of the plaintiffs' partial success. Furthermore, the court needed to determine the costs, particularly given that the plaintiffs had secured interlocutory relief despite the defendants' undertaking to maintain the status quo. The court also had to weigh the plaintiffs' rejection of previous offers of compromise, including a Calderbank offer, in its considerations.
In delivering the judgment, the court meticulously examined the procedural context and the nature of the plaintiffs' partial success. It considered the defendants' undertaking to maintain the status quo and the plaintiffs' rejection of compromise offers, including the Calderbank offer. The court found that there was no overriding principle that dictated a particular form of final orders. Instead, it focused on the practicalities of finalizing the dispute, considering the submissions of both parties. The court ruled that the plaintiffs were entitled to costs for the successful aspects of their claims but also noted that these costs should reflect the partial nature of their success. The court carefully balanced these considerations to arrive at its final orders.
The final orders included provisions for the property in question, reflecting the outcome of the proceedings. The court mandated that specific terms be included in the final orders, ensuring clarity and compliance with the judgment. Costs were awarded to the plaintiffs for their successful claims, but these were subject to an adjustment to account for the partial success and the broader procedural context. The court's decision provided a clear resolution to the dispute, addressing both the substantive and procedural aspects of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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