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McKeand v Thomas

McKeand v Thomas

Case [2006] NSWSC 1356 30 November 2006

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CITATION: McKeand v Thomas [2006] NSWSC 1356

HEARING DATE(S): 30 November 2006

JUDGMENT DATE :
30 November 2006

JURISDICTION: 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 31

PARTIES: Ross Tyndall McKeand - First Plaintiff
Diane Elizabeth McKeand - Second Plaintiff
Mareta Thomas - First Defendant
Fred Thomas - Second Defendant

FILE NUMBER(S): SC 1864/05

COUNSEL: F Corsaro SC; B Sharpe - Plaintiffs
V Culkoff - Defendants

SOLICITORS: 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.…

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 McKeand v Thomas

Details

AGLC: McKeand v Thomas [2006] NSWSC 1356
Case: [2006] NSWSC 1356
Decision Date: 30/11/2006

CaseChat Overview and Summary

The dispute in McKeand v Thomas involved the parties proposing different final orders, following a partial success by the plaintiffs. The matter was heard in the Supreme Court of South Australia. The plaintiffs, McKeand, sought relief related to a dispute concerning property and its use, while the defendants, Thomas, aimed to maintain the status quo. The court was tasked with deciding the appropriate final orders, considering both parties' proposals and the broader procedural and costs implications.

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