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

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).
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.
Secondly and in the alternative whether the defendant was by reason of its conduct precluded from denying the grant of the easement.
Thirdly and again in the alternative the plaintiff sought an easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) (the Act).
The plaintiff failed on the first and second issues but succeeded on the third.
The question of costs is outstanding.
I have helpfully received written submissions from both sides and I have also had the benefit of a short oral hearing.

The parties’ submissions

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.
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.
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.
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…

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.

Keep reading for free

Create a free CaseChat account to read Roma Lopeman v WIN Corporation Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 1560
Decision Date: 03 November 2020

CaseChat Overview and Summary

The case before the court involved Roma Lopeman, the plaintiff, and WIN Corporation Pty Ltd, the defendant. The dispute centred on the imposition of an easement over the defendant's land, which the plaintiff claimed was necessary for access to her property. The case was heard in the Supreme Court of New South Wales. The plaintiff initially pursued her claim on the basis of contract and estoppel but was unsuccessful in both respects. However, the court found in her favour under section 88K of the Conveyancing Act 1919 (NSW), granting her the easement she sought.

The central legal issue before the court was whether the ordinary rule of costs, where the unsuccessful party pays the successful party's costs, should be departed from in light of the circumstances of the case. The plaintiff's initial claims for contract and estoppel had failed, but her application for an easement under section 88K was successful. The court had to determine if this outcome warranted a departure from the ordinary rule of costs.

In delivering the judgment, the court considered the overall outcome of the proceedings and the nature of the relief granted. The court found that the plaintiff's successful claim for an easement under section 88K was a significant result, which warranted a departure from the ordinary rule of costs. The court reasoned that it was appropriate to exercise its discretion to order that the costs of the unsuccessful claims be paid by the plaintiff, but that the defendant should bear the costs of the successful easement application. This approach balanced the outcomes of the different claims and recognised the significance of the easement granted.

The final orders of the court were that the plaintiff pay the defendant's costs of the unsuccessful claims for contract and estoppel. However, the defendant was ordered to pay the plaintiff's costs of the successful easement application. This outcome reflected the court's assessment of the overall result of the proceedings and its exercise of discretion in relation to costs.

Orders