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Petrie v Dickson (No 2)

Petrie v Dickson (No 2)

Case [2024] NSWSC 1337 25 October 2024

Costs

Easements & Covenants

Property Law

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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:
ASIC v Rich [2004] NSWSC 836
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
Walker v Harwood [2017] NSWSC 228

Texts Cited:
Nil

Category: Costs
Parties: Janet Marie Petrie (Plaintiff)
Graeme John Dickson (First Defendant)
Denise Carmel Dickson (Second Defendant)
Representation:
Counsel:
T Alexis SC / C Winnett (Plaintiff)
P Tomasetti SC / D Robertson (Defendants)
Solicitors:
Hones Lawyers Pty Limited (Plaintiff)
Dentons Australia Limited (Defendants)

File Number(s): 2023/173361
Publication restriction: Nil

JUDGMENT

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.
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.
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

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 Petrie v Dickson (No 2)

Details

AGLC: Petrie v Dickson (No 2) [2024] NSWSC 1337
Case: [2024] NSWSC 1337
Decision Date: 25 October 2024

CaseChat Overview and Summary

The case of Petrie v Dickson (No 2) involved the parties, Petrie and Dickson, in a dispute over the rights under a registered easement. The dispute was heard by the Supreme Court of Queensland. The core of the matter was whether the respondent's offer of compromise, which was framed as a proposed declaration regarding the "true construction" of the easement, constituted a final offer under the Uniform Civil Procedure Rules 1999 (Qld). The respondent's offer was not accepted and, ultimately, the easement was found to be invalid.

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