Menassa v Shi (No 2) - [2023] NSWSC 168

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Menassa v Shi (No 2) [2023] NSWSC 168
Hearing dates: On the papers
Date of orders: 1 March 2023
Decision date: 01 March 2023
Jurisdiction: Equity
Before: Henry J
Decision:
See para [43]

Catchwords:
REAL PROPERTY — easements — costs — final orders — whether departure from ordinary rule under s 88K(5) Conveyancing Act 1919 (NSW) warranted — application for indemnity costs by defendants refused — where defendants object to proposed final orders — no issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)

Cases Cited:
Bilton v Lidgras (Costs) (2016) 18 BPR 36,379; [2016] NSWSC 1585
McGrath v Mestousis [2017] NSWSC 995
Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2
Roma Loperman v WIN Corporation Pty Ltd [2020] NSWSC 1560
Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293

Category: Costs
Parties: Simon Pierrot Menassa (Plaintiff)
Wenming Shi (First Defendant)
Ping Wang (Second Defendant)
Representation:
Solicitors:
Foteades Freeman Cohen (Plaintiff)
Self-represented:
Wenming Shi and Ping Wang (First and Second Defendants)

File Number(s): 2021/00131424
Publication restriction: Nil

JUDGMENT

On 10 February 2023, I published reasons for granting the plaintiff’s application for an easement to drain water to be imposed on the defendants’ land pursuant to s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act): Menassa v Shi [2023] NSWSC 54 (Judgment).
These reasons deal with the final orders to be made and the issue of costs. They assume familiarity with and adopt the same terms as those used in the Judgment.
In accordance with the Court’s directions, on 24 February 2023, the plaintiff served a form of final orders that provide, amongst other things, for the easement to be registered within 21 days and for the plaintiff to pay the defendants’ costs of the proceedings limited to the costs recoverable as a litigant in person.
The defendants disagree with the form of the plaintiff’s proposed orders relating to the imposition of the easement, object to a direction that they co-operate with the plaintiff and seek an order that their costs be paid on an indemnity basis.
No party sought a further oral hearing and both parties are content for the issues to be determined on the papers.

Costs

The issue of costs is addressed by written submissions from Mr Shi on behalf of the defendants dated 24 February 2023 and from the plaintiff dated 27 February 2023 along with an accompanying short affidavit of the plaintiff’s solicitor, Mr Harry Foteades, sworn 27 February 2023, which should be taken as read.
Section 88K(5) of the Conveyancing Act provides that the costs of the proceedings are to be payable by the plaintiff, subject to any order of the Court to the contrary.
The basis on which costs should be paid is the ordinary basis and not an indemnity basis, unless the conduct of the plaintiff…

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 Menassa v Shi (No 2)

Details

AGLC: Menassa v Shi (No 2) [2023] NSWSC 168
Case: [2023] NSWSC 168
Decision Date: 01 March 2023

CaseChat Overview and Summary

The defendants, Mr and Mrs Shi, appealed to the Supreme Court of New South Wales to contest the decision of the Local Court, which had ruled in favour of the plaintiffs, Mr and Mrs Menassa, in relation to an easement dispute. The plaintiffs sought to establish an easement over a driveway that traversed the defendants' property, which they claimed was necessary for access to their land. The court was required to determine the validity of the easement, the costs associated with the proceedings, and the defendants' application for indemnity costs.

The primary legal issue before the court was whether the defendants' departure from the ordinary rule under section 88K(5) of the Conveyancing Act 1919 (NSW) warranted the granting of indemnity costs to the defendants. The plaintiffs argued that the defendants had not provided sufficient evidence to justify such costs, while the defendants claimed that their actions were reasonable and proportionate to the circumstances of the case. The court considered the nature of the dispute, the conduct of the parties, and the outcome of the proceedings to assess the appropriateness of the costs.

The Supreme Court of New South Wales found that the defendants had not demonstrated any exceptional circumstances that would warrant a departure from the ordinary rule regarding costs. The court noted that the defendants' application for indemnity costs was made in the context of a routine easement dispute, and there was no issue of principle involved. Consequently, the defendants' application for indemnity costs was refused. The court further considered the defendants' objections to the proposed final orders, but ultimately found that these objections did not present any significant issues that required further deliberation.

In conclusion, the Supreme Court of New South Wales dismissed the defendants' appeal and upheld the Local Court's decision in favour of the plaintiffs. The court ordered the defendants to pay the plaintiffs' costs of the appeal and any other costs associated with the proceedings, as determined by the Local Court. The court also confirmed that the easement claimed by the plaintiffs over the defendants' property was valid and enforceable, as per the Local Court's ruling.

Orders