Rawson v Studholme (No 2) - [2019] NSWSC 1273

Supreme Court

New South Wales

Medium Neutral Citation: Rawson v Studholme (No 2) [2019] NSWSC 1273
Hearing dates: 26 September 2019
Date of orders: 03 October 2019
Decision date: 03 October 2019
Jurisdiction: Equity
Before: Pembroke J
Decision:
See paragraph [36]

Catchwords: COSTS – ‘order contrary’ pursuant to Section 88K(5) of Conveyancing Act - discretionary considerations
INDEMNITY COSTS – application of UCPR Pt 42 r 42.14
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Cases Cited: cf Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242
Dillon v Gosford City Council [2011] NSWCA 328
G T Corporation Pty Ltd v Amare Safety Pty Ltd (No 3) [2008] VSC 296
Owners Strata Plan 13636 v Ryan [2006] NSWSC 342
Re Frost [2011] NSWSC 591
Shi v ABI-K Pty Ltd [2014] NSWCA 293
Tempe Recreation Reserve Trust v Sydney Water Corporation [2014] NSWCA 437
Category: Costs
Parties: John Warwick Leslie Rawson – first plaintiff
Diana Jane Rawson – second plaintiff
Edward John Wilson – third plaintiff
Patricia Ann Wilson – fourth plaintiff
Carmen Richards – fifth plaintiff
Tara Marie Robertson – sixth plaintiff
Terence Kenneth Little – seventh plaintiff
Lesley Little – eighth plaintiff
Sydney Reinhardt – ninth plaintiff
Elizabeth Patricia Studholme – defendant
Representation:
Counsel:
Mr P Tomasetti SC with Ms M Carpenter – for the plaintiffs
Mr N Roucek – for the defendant
Solicitors:
D G Briggs & Associates – for the plaintiffs
Breene & Breene – for the defendant

File Number(s): 2017/142835

Judgment

Introduction

This a costs application in a proceeding in which I gave judgment on 14 December 2018 on an application for an easement pursuant to Section 88K of the Conveyancing Act 1919 (NSW). I will not repeat the historical background facts or the findings set out in my earlier judgment, except where necessary to explain my decision on costs.
On 30 January 2019, I made final orders for the grant of an easement and the payment of compensation to the defendant but was informed at the costs hearing that the defendant has not agreed to the implementation of those orders and has lodged a notice of appeal. The defendant has not even permitted the plaintiffs to carry out the work (which I ordered for her benefit) of cutting away and removing the concrete that abuts her land along part of the laneway.
I was critical of the defendant in my earlier judgment but I should make several preliminary points before going further:

Section 88K(5) provides that the costs of proceedings of this nature are to be paid by the plaintiffs ‘subject to any order of the court to the contrary’.

In this particular statutory context, the meaning and application of the phrase ‘subject to any order of the court to the contrary’ is not completely open-ended. The Court of Appeal in Shi v ABI-K Pty Ltd [2014] NSWCA 293 at [97]-[94] explained why, in a claim for an easement, the property owner should not be put at risk…

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 Rawson v Studholme (No 2)

Details

AGLC: Rawson v Studholme (No 2) [2019] NSWSC 1273
Case: [2019] NSWSC 1273
Decision Date: 03 October 2019

CaseChat Overview and Summary

The case of Rawson v Studholme (No 2) involved a dispute between the parties concerning costs. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was the application of section 88K(5) of the Conveyancing Act in determining whether to make an order contrary to the usual order for costs, as well as the application of UCPR Part 42 rule 42.14 regarding indemnity costs. The court was required to consider the discretionary factors relevant to making such an order and whether the respondent was entitled to indemnity costs under the UCPR.

The court considered various factors in determining whether to make an order contrary to the usual order for costs. These factors included the conduct of the parties during the litigation, the merits of the case, and the overall fairness of the outcome. The court examined the circumstances of the case, including the actions taken by the parties and the reasonableness of those actions. The court also considered the application of UCPR Part 42 rule 42.14 in determining whether the respondent was entitled to indemnity costs. The court assessed whether the respondent's conduct warranted such an order and whether it was just and equitable to do so.

After careful consideration of the evidence and arguments presented, the court determined that an order contrary to the usual order for costs was appropriate. The court found that the respondent's conduct during the litigation was unreasonable and unjustified, and that it was in the interests of justice to make such an order. The court also found that the respondent was not entitled to indemnity costs under the UCPR. The court's decision was based on the discretionary considerations outlined in section 88K(5) of the Conveyancing Act and the application of UCPR Part 42 rule 42.14.

The final orders of the court were that the respondent pay the applicant's costs on an indemnity basis, and that the respondent was not entitled to indemnity costs under the UCPR. The court's decision provides guidance to practitioners on the application of section 88K(5) of the Conveyancing Act and UCPR Part 42 rule 42.14 in determining costs orders.

Orders