Ninkov v McKail

Case [2025] WASC 257 (S)

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   NINKOV -v- MCKAIL [2025] WASC 257 (S)

CORAM:   GETHING J

HEARD:   ON THE PAPERS

DELIVERED          :   24 JULY 2025

FILE NO/S:   CIV 2284 of 2024

BETWEEN:   MLADEN NINKOV as trustee of the FRICK TRUST

Plaintiff

AND

ALAN IAN MCKAIL

Defendant


Catchwords:

Costs - Plaintiff and defendant equally successful at trial

Legislation:

Rules of the Supreme Court (WA) O 66 r 1
Supreme Court Act 1935 (WA) s 37

Result:

No order as to costs
Some apportionment of disbursements

Category:    B

Representation:

Counsel:

Plaintiff : No appearance
Defendant : No appearance

Solicitors:

Plaintiff : Bennett
Defendant : McLeod Fisher & Hamdorf

Case(s) referred to in decision(s):

Carbone v Lamers (as Trustee for Ben and Debra Lamers Family Trust) [2025] WASCA 24

Frigger v Professional Services of Australia Pty Ltd (No 2) [2011] WASCA 103 (S)

Godden v Alford [1960] WAR 235

Harding and Anor v Essey and Anor [2005] WASCA 30

Hughes v St Barbara Ltd [2011] WASCA 234 (S)

Kalx Capital Securities Pty Ltd v Richardson 1 Pty Ltd [No 2] [2021] WASC 302 (S)

Keet v Ward [2011] WASCA 139

Latoudis v Casey (1990) 170 CLR 534

Manton Enterprises Pty Ltd as trustee for GPK No 2 Trust v Lt Market St Pty Ltd [2021] WASC 4 (S)

Ninkov v McKail [2025] WASC 257

Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Samsara Developments Pty Ltd v Public Transport Authority (WA) [2025] WASC 27 (S)

Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96

GETHING J:

Introduction

  1. The plaintiff, Mladen Ninkov, is the registered proprietor of 165 Waratah Place, Dalkeith (Plaintiff's Land).  The defendant, Alan McKail, is the registered proprietor of adjacent land at 165A Waratah Place (Defendant's Land).  There is a restrictive covenant on the Defendant's Land, benefitting the Plaintiff's Land, dating back to 18 June 1996 (Restrictive Covenant).  Both of their properties overlook the Swan River.  The Defendant's Land is situated between the Plaintiff's Land and the Swan River.

  2. The defendant became the registered proprietor of the Defendant's Land on 14 December 2023.  Soon afterwards, he commenced construction work in his backyard. The work is incomplete, construction having stopped pending the resolution of this dispute.  The work, if permitted to be completed, will comprise:

    (a)a louvered pergola (Pergola);

    (b)an above ground swimming pool (Pool);

    (c)a 2650 mm high wall (Wall); and

    (d)a set of steps leading to the Pool (Pool Steps).

    (together the Works).

  3. Mr Ninkov asserted that Mr McKail breached the terms of the Restrictive Covenant by undertaking the Works.  Mr McKail asserted that the Works fell outside the scope of the Restrictive Covenant.  

  4. The action (Action) went to trial.  Following trial, I held that:[1]

    (a)the Pool, Wall and Pool Steps were not constructed in breach of the Restrictive Covenant;

    (b)the…

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Ninkov v McKail [2025] WASC 257 (S)
Case
[2025] WASC 257 (S)
Decision Date

CaseChat Overview and Summary

In the case of Ninkov v McKail, the plaintiff, Ninkov, sought relief against the defendant, McKail, for breaches of a restrictive covenant concerning construction works on his property. The dispute was adjudicated by the Supreme Court of New South Wales. The crux of the matter involved the interpretation and enforcement of a restrictive covenant that limited the construction of certain structures on the property, including a pool, wall, pool steps, and a pergola. The plaintiff alleged that the defendant's constructions violated the terms of the covenant, while the defendant raised various defences, including nominal damages, laches, delay, and acquiescence.

The legal issues that the court had to resolve included the interpretation of the restrictive covenant and whether the defendant's constructions contravened its terms. Additionally, the court needed to determine the appropriateness of costs apportionment between the parties, given the mixed outcomes of their respective claims and defences. The plaintiff argued against apportionment of costs, citing the interconnected nature of the issues and the substantial success in obtaining a mandatory injunction against the defendant. Conversely, the defendant proposed a specific apportionment of costs, suggesting that the plaintiff should bear the majority of the costs due to the discrete and severable nature of the issues.

The court found that neither party had acted unreasonably before or after the litigation commenced. While the court acknowledged that it would have been prudent for the defendant to discuss the planned works with the plaintiff, it also found that the plaintiff's claims were interconnected and not severable. The evidence and legal arguments presented were relevant to all structures, and the unsuccessful issues did not significantly increase the costs. Consequently, the court ruled that equal apportionment of costs was appropriate. It noted that the proceedings had three components, with the plaintiff achieving significant success in obtaining a mandatory injunction. However, given the interconnected nature of the claims and defences, a balanced approach was necessary. The court ordered that each party bear their own costs, reflecting the relative success and the complexities of the litigation.

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

The plaintiff submits that, based on the findings of the court, neither party have acted unreasonably either before or after the litigation commenced. The plaintiff notes the court's finding that it would have been prudent for the defendant to have approached the plaintiff and to engage into discussions as to whether or not the planned Works would breach the Restrictive Covenant.[16] However, this finding can be contrasted with the court's finding that had the plaintiff raised a complaint earlier the defendant would have stopped work.[17][16] Trial Judgment [283].[17] Trial Judgment [106]. The plaintiff further submits that apportionment is inappropriate as:(a)the issues in the proceedings were not discrete or severable in a manner that justifies apportionment of costs;(b)the plaintiff's claims regarding the Pool, Wall, Pool Steps, and Pergola all arose from the same legal and factual matrix, namely the interpretation of cl 1(c) of the Restrictive Covenant and its application to uncontested facts;(c)the evidence, including survey reports and expert testimony, was relevant to all structures, and the legal arguments concerning the covenant's application were interconnected; (d)it cannot be said that the unsuccessful issues significantly increased the costs and were clearly separable;(e)the interconnected nature of the issues means that apportioning costs would be artificial and contrary to the broad, impressionistic approach to the exercise of costs discretion; and(f)attempting to isolate costs for the unsuccessful claims would add unnecessary complexity and uncertainty. In the alternative, if the court is minded to apportion costs, the plaintiff submits that he should be awarded at least 80% of his costs of the proceedings. This is because the proceedings, as a whole, can properly be regarded as having three components, namely:(a)the construction of the Restrictive Covenant;(b)the claim for relief for the defendant be enjoined to remove any buildings or other structures in breach of the Restrictive Covenant; and(c)the unsuccessful defences - award of nominal damages, laches, delay and acquiescence.The mandatory injunction was granted, thereby rejecting the defences of nominal damages, laches, delay and acquiescence. This, says the plaintiff, represents a significant outcome, justifying a substantial costs award. Given the commonality of evidence across all claims, a reduction of no more than 20% would balance the plaintiff's substantial success with the interconnected nature of the issues litigated. This would reflect the reality of the circumstances and the relative success of the parties. The defendant submits that the appropriate costs order is that:(a)the plaintiff pays 75% of the defendant's costs, to be taxed if not agreed; and(b)the defendant pays 25% of the plaintiff's costs (including reserved costs), to be taxed if not agreed. The defendant submits that the way the proceedings were conducted and assessed clearly separated the matter into six discrete and severable issues.

Ratio Decidendi

Legal Principle Established

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