Supreme Court
New South Wales
Medium Neutral Citation: Petrie v Dickson (No 2) [2024] NSWSC 1337 Hearing dates: On the papers; final submissions ending 19 September 2024 Date of orders: 25 October 2024 Decision date: 25 October 2024 Jurisdiction: Equity - Real Property List Before: Parker J Decision: See [44]
Catchwords: COSTS — party/party — offer of compromise — dispute concerning rights under registered easement — offer in form of proposed declaration as to “true construction” of easement — construction rejected but easement found to be invalid — finality of offer — utility of declaration in negative form – propriety of declaration in Torrens system – declaration contrary to Court’s construction of easement — indemnity costs refused
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bates v Cooke (No 2) [2014] NSWSC 1322
Calderbank v Calderbank [1975] 3 ALL ER 333
Commonwealth v Gretten [2008] NSWCA 117
Dibbs v Emirates (No 2) [2015] NSWSC 1786
Freeman v Allianz Australia Insurance [2005] NSWSC 257
Global Consulting Services Pty Ltd v Gresham Property Investments Ltd (No 3) [2019] NSWCA 208
Harris v Harris [2013] NSWSC 1157
Karpin v Gough (No 2) [2022] NSWSC 682
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721
MT Associates Pty Ltd v Aqua-Max Pty Ltd (No 3) [2000] VSC 163
Petrie v Dickson [2024] NSWSC 972
Ritchie v Advanced Plumbing and Drains Pty Ltd (No 2) [2022] NSWSC 849
Termijtelen v Van Arkel [1974] 1 NSWLR 525
Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 194
Texts Cited: Nil
Category: Costs Parties: Janet Marie Petrie (Plaintiff)
Graeme John Dickson (First Defendant)
Denise Carmel Dickson (Second Defendant)Representation: Counsel:
Solicitors:
T Alexis SC / C Winnett (Plaintiff)
P Tomasetti SC / D Robertson (Defendants)
Hones Lawyers Pty Limited (Plaintiff)
Dentons Australia Limited (Defendants)
File Number(s): 2023/173361 Publication restriction: Nil
JUDGMENT
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On 9 August, I delivered my substantive judgment in this matter: Petrie v Dickson [2024] NSWSC 972 (“J1”). On 29 August, I made orders in a form agreed by the parties to reflect the conclusions I had reached. The issue of costs remains in dispute and is the subject of this judgment. The following reasons assume familiarity with J1, and the abbreviations used therein.
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The dispute which was the subject of the proceedings concerned the enforcement of an easement, or purported easement. The parties to the proceedings are the registered proprietors of adjoining lots in a duplex development in Palm Beach on Sydney’s Northern Beaches. Lot 1, the dominant tenement, is owned by the defendants. Lot 2, the servient tenement, is owned by the plaintiff.
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The disputed easement was created by the parties’ predecessors in title in 2003 by registration of an instrument made under s 88B of the Conveyancing Act 1919
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- AGLC
- Petrie v Dickson (No 2) [2024] NSWSC 1337
- Case
- [2024] NSWSC 1337
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the respondent's offer was a final offer for the purposes of indemnity costs and whether the offer's rejection was justified. The court also needed to determine if the declaration proposed by the respondent, which was ultimately rejected, was of any utility in a negative form, and whether such a declaration was appropriate under the Torrens system. Moreover, the court had to consider whether the declaration proposed by the respondent, which differed from the Court's construction of the easement, could be considered.
In reaching its decision, the court held that the respondent's offer of compromise did not constitute a final offer as it was not a complete proposal for resolving the dispute. The court noted that the offer was not a final offer because it was conditional and did not cover all the relief sought by the applicant. The court also found that the rejection of the offer was reasonable and justified. Furthermore, the court concluded that the declaration proposed by the respondent, which was ultimately rejected, did not have any utility in a negative form and was not appropriate under the Torrens system. The court also held that the declaration proposed by the respondent was contrary to the Court's construction of the easement. Consequently, the court refused the respondent's application for indemnity costs.
The court's final orders were that the respondent's application for indemnity costs was dismissed. The court also held that the respondent's offer of compromise was not a final offer for the purposes of indemnity costs. The court further held that the rejection of the offer was reasonable and justified. Additionally, the court held that the declaration proposed by the respondent was not appropriate under the Torrens system and was contrary to the Court's construction of the easement.
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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