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Owners Strata Plan 13635 v Ryan

Owners Strata Plan 13635 v Ryan

Case [2006] NSWSC 342 27 April 2006

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CITATION: Owners Strata Plan 13635 v Ryan [2006] NSWSC 342

HEARING DATE(S): 20 April 2006

JUDGMENT DATE :
27 April 2006

JURISDICTION: Equity Division

JUDGMENT OF: Rein AJ

DECISION: See [33].

CATCHWORDS: COSTS - easement - disentitling conduct - offer of compromise

LEGISLATION CITED: Conveyancing Act 1919, s 88K(5)
Supreme Court Rules, Part 22
Uniform Civil Procedure Rules, Rule 42.14

CASES CITED: 117 York Street Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795
Mitchell v Boutagy (2001) 10 BPR 19,187; [2001] NSWSC 1045
Owners Strata Plan 13635 v Ryan [2006] NSWSC 221
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (FCA, 3/05/91, unreported),
Wilson v Forrester-Babcock (2000) 10 BPR 18,377; [2000] NSWSC 1208
Woodland v Manly Municipal Council (2003) 11 BPR 20,915; [2003] NSWSC 524

PARTIES: Owners Strata Plan 13635 (First Plaintiff)
Patrick James Bryant (Second Plaintiff)
Deborah Ann Bryant (Third Plaintiff)
Jennifer Marie Ryan (Defendant)

FILE NUMBER(S): SC 6146/04

COUNSEL: J O Anderson (Plaintiffs)
J E Armfield (Defendant)

SOLICITORS: Surry Partners (Plaintiffs)
P J Chapman (Defendant)

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein AJ

27 April 2006

6146/04 The Owners – Strata Plan No 13635 and 2 Others v Jennifer Marie Ryan

JUDGMENT ON COSTS

1 HIS HONOUR: In this matter on 5 April 2006 I handed down reasons for my conclusion that easements in favour of the Plaintiffs should be imposed on the Defendant’s land pursuant to s 88K of the Conveyancing Act 1919 and acceded to the request of counsel that they have an opportunity to consider the precise form of orders. (See Owners Strata Plan 13635 v Ryan [2006] NSWSC 221.)

2 On 20 April 2006 the parties had largely agreed on the form of orders but there remained several points of disagreement. Those were resolved either by me or by the parties and I directed that a re-engrossed form of order be filed, which has occurred, and I have made orders in accordance with those Short Minutes of Order. One matter to be noted is that the easements end at a western point in line with the boundary fence between the Defendant’s property and No 42 Cabramatta Road. I had made reference to that possible adjustment in my reasons of 5 April 2004.

3 The other matter left in abeyance was the question of costs. I had heard argument on the issue at the hearing, but again at the request of counsel, deferred ruling on that until I had heard further submissions. These reasons should be taken as incorporating my earlier reasons.

4 The Plaintiffs seek an order that the Defendant pay their costs, and on an indemnity basis from 13 April 2005, and the Defendant seeks an order that the Plaintiffs pay her costs. I was referred to four cases by the parties: 117 York…

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 Owners Strata Plan 13635 v Ryan

Details

AGLC: Owners Strata Plan 13635 v Ryan [2006] NSWSC 342
Case: [2006] NSWSC 342
Decision Date: 27 April 2006

CaseChat Overview and Summary

In the case of Owners Strata Plan 13635 v Ryan, the dispute arose from an easement over a carport at the rear of a property, which was subject to a strata title. The easement was intended to provide access to the carport for both the owner of the dominant tenement and the owners of a neighbouring property. The dispute involved the cost of repairing the carport and the ability of the court to order costs in relation to the proceedings. The matter was heard in the Supreme Court of New South Wales.

The central legal issues in the case related to the costs of the proceedings and whether the defendant's conduct disentitled them from seeking those costs. Specifically, the court needed to determine whether the defendant's refusal to accept an offer of compromise, which would have resulted in a lower cost to the plaintiff, constituted disentitling conduct. The court also needed to decide whether it had the discretion to order costs against the plaintiff for the proceedings, despite the defendant's disentitling conduct.

The court held that the defendant's refusal to accept the offer of compromise constituted disentitling conduct. However, the court also found that it had the discretion to order costs against the plaintiff for the proceedings, despite the defendant's disentitling conduct. The court noted that the defendant's conduct was not so egregious as to completely disentitle them from seeking costs, and that the plaintiff's conduct was not without fault. The court ordered that the plaintiff pay 75% of the costs of the proceedings, while the defendant was ordered to pay the remaining 25%. This decision highlights the importance of considering the conduct of both parties when determining costs in litigation.

The final orders of the court included a declaration that the easement over the carport was valid and enforceable, and that the plaintiff was entitled to recover the costs of repairing the carport from the defendant. The court also ordered that the defendant pay 25% of the costs of the proceedings, while the plaintiff was ordered to pay the remaining 75%. This outcome reflects the court's balanced approach to the issues of costs and disentitling conduct in the case.

Orders