Roma Lopeman v WIN Corporation Pty Ltd

[2020] NSWSC 1560

Supreme Court

New South Wales

Medium Neutral Citation:

Roma Lopeman v WIN Corporation Pty Ltd [2020] NSWSC 1560

Hearing dates:

28 October 2020

Decision date:

03 November 2020

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

See para [19]

Catchwords:

COSTS – Application for imposition of an easement – Where plaintiff failed on contract and estoppel cases but was granted an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) – Ordinary rule that applicant pays defendant’s costs of proceedings – Whether departure from ordinary rule warranted

Legislation Cited:

Conveyancing Act 1919 (NSW) s 88K

Cases Cited:

Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795

McGrath v Mestousis (No 2) [2018] NSWSC 32

Roma Lopeman v WIN Corporation Pty Ltd [2020] NSWSC 1305

Ross Bilton & Ors v Georgia Lidgras (Costs) [2016] NSWSC 1585

Shi v ABi-K Ltd (2014) 87 NSWLR 568

Texts Cited:

n/a

Category:

Costs

Parties:

Roma Elaine Lopeman (plaintiff)
WIN Corporation Pty Ltd (defendant)

Representation:

Counsel:
S Philips (plaintiff)
M Galvin (defendant)

Solicitors:
G & B Lawyers (plaintiff)
RMB Lawyers (defendant)

File Number(s):

2020/3841

Judgment – costs

1. Three issues arose for determination before me at the trial which took place on 22, 23, 24 and 28 July 2020 (see [2020] NSWSC 1305).

2. The first was whether the parties had entered a binding contract by which the defendant bound itself to grant an easement over its land in favour of the plaintiff’s land.

3. Secondly and in the alternative whether the defendant was by reason of its conduct precluded from denying the grant of the easement.

4. Thirdly and again in the alternative the plaintiff sought an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) (the Act).

5. The plaintiff failed on the first and second issues but succeeded on the third.

6. The question of costs is outstanding.

7. I have helpfully received written submissions from both sides and I have also had the benefit of a short oral hearing.

The parties’ submissions

8. The plaintiff submits that the appropriate order is for the plaintiff to pay the defendant’s costs up until 30 April 2020 assessed on an ordinary basis. She submits thereafter the defendant should pay the plaintiff’s costs on an indemnity basis.

9. The plaintiff submits that although pursuant to s 88K(5) of the Act the costs associated with an application for an easement would normally be paid by the applicant (here, the plaintiff) the Court can otherwise order and here should do so after 30 April given the unreasonable conduct of the defendant in refusing constructively to engage in negotiations and by reason of its failure on some aspects of the argument at the trial.

10. The plaintiff relies upon her letter of 30 April 2020 as a Calderbank letter and asserts she did no less favourably at trial than the terms of her offer.

11. The defendant refers to s 88K(5) and submits the plaintiff should pursuant to that provision pay the costs of the trial and submits no occasion arises for a contrary order to be made in the circumstances of this case.

12. The defendant further submits that the Calderbank letter and reliance upon it is misplaced given s 88K(5) and more to the point it ignores the defendant’s success on the contract/estoppel cases.

Consideration

13. In my view the appropriate order is for the plaintiff to pay the defendant’s costs of the proceedings on an ordinary basis.

14. There are a number of reasons for that.

15. First as to s 88K of the Act. As was made clear by the Court of Appeal in Shi v ABi-K Ltd (2014) 87 NSWLR 568 at [98], such a proceeding is not a claim for damages or any analogous form of compensation. An easement is a claim for an interest in property to which the applicant has no right and more to the point the property owner is entitled to refuse to consent to the easement thereby requiring the applicant to satisfy the Court as to the various pre-conditions. The property owner is even entitled to reject reasonable offers of settlement.

16. If a property owner deliberately obstructs the process or is unreasonably responsible for escalating costs then a different order to that contemplated by s 88K(5) may well be appropriate: Ross Bilton & Ors v Georgia Lidgras (Costs) [2016] NSWSC 1585 at [17]; Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795 at 15,801-15,802; McGrath v Mestousis (No 2) [2018] NSWSC 32 at [7].

17. The mere fact that here I favoured the expert called by the plaintiff as opposed to those called by the defendant does not render the defendant’s conduct unreasonable. It was always a matter for the plaintiff to satisfy the Court on each statutory pre-condition.

18. As to the Calderbank letter I regard it as unsatisfactory. First it was served after the pleadings had closed and the evidence was on. It addressed only the question of the easement and was silent on the contract and estoppel claims. Although the plaintiff offered to pay $17,100 compensation the offer provided that not only should each side pay their own costs but each should pay their own costs associated with registration of the easement. Therefore in my view she cannot be said to have done better or no less favourably at trial than the terms of her offer. Further given the terms of s 88K(5) and the various authorities on that section the offer in my view was unrealistic and unreasonable. In addition the plaintiff was wholly unsuccessful on the contract and estoppel issues.

19. In my view the plaintiff should pay the defendant’s costs of the proceedings on an ordinary basis.

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Decision last updated: 04 November 2020