Ross Bilton v Georgia Ligdas (Costs) - [2016] NSWSC 1585

Supreme Court

New South Wales

Medium Neutral Citation: Ross Bilton & Ors v Georgia Ligdas (Costs) [2016] NSWSC 1585
Hearing dates: 25 October 2016
Date of orders: 02 November 2016
Decision date: 02 November 2016
Jurisdiction: Equity
Before: Rein J
Decision:
See [29]

Catchwords: COSTS- Whether there was disentitling conduct by the 1st defendant - where two of three groups of plaintiffs were granted easement by prescription and the third group of plaintiffs was granted easement by virtue of s.88K - where plaintiffs perceive themselves as a one unit
HELD-1st Defendant was entitled to resist s.88K claim- defendant’s conduct not sufficient to deny her the benefit of s.88K (5)-By reason of offset and because plaintiffs succeeded on different basis each party to pay own costs
REAL PROPERTY-where defendant argues that the passageway burdened by the easement should be locked by a second gate for security reasons- where plaintiffs contend second gate is no more than an obstruction
HELD: The second gate is an obstacle to the prescriptive easement to which two sets of plaintiffs have been found to be entitled - gate to be removed
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Deanshaw & Deanshaw v Marshall (1978) 20 SASR 146
Dresdner v Scida [2003] NSWSC 957
Gohl v Hender [1930] SASR 158
Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15,795
McCrow v Chaplin [2009] NSWSC 965
Owners Strata Plan 13635 v Ryan [2006] NSWSC 342
Rainbowforce Pty Limited v Skyton Holdings Pty Limited [2010] NSWLEC 2
Mitchell v Boutagy (2001) 118 LGERA 249; [2001] NSWSC 1045
Ross Bilton & Ors v Georgia Ligdas [2016] NSWSC 1262
Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293
Stepanoski v Chen (No 2) [2012] NSWSC 1037
Texts Cited: Kunc J “S.88K Easements- How Much Discretion Really?” paper delivered to the Environment and Planning Law Association 22 October 2016
Category: Costs
Parties: Ross Bilton (1st Plaintiff)
Clair Weaver (2nd Plaintiff)
Sinead Dwyer (3rd Plaintiff)
Alan Dwyer (4th Plaintiff)
David Hudson (5th Plaintiff)
Georgia Ligdas (1st Defendant)
Christine Kensworthy (2nd Defendant)
Executor of the Estate of the late Brian Holbache (3rd Defendant)
Colleen Earl (4th Defendant)
Gerald Michael Carr (5th Defendant)
Joanne Crews (6th Defendant)
Margaret Morrell (7th Defendant)
Robert Morrell (8th Defendant)
Representation:
Counsel:
G.A Moore (Plaintiffs)
J.M Ireland (1st Defendant)
Solicitors:
Kreisson Legal (Plaintiffs)
Mavrakis & Associates (1st Defendant)
Defendants 2-8 Submitting Appearance

File Number(s): 2014/319743
Publication restriction: Nil

Judgment

On 29 July 2016 I handed down my reasons for judgment in this matter and invited the parties to prepare Short Minutes of Order to reflect the conclusions to which I had come. The reasons handed down (Ross Bilton & Ors v Georgia Ligdas [2016] NSWSC 1262) did not address the issue of costs and I invited the parties to discuss that question in conjunction with other matters such as the form of orders to be made. The parties sought an extensive period within which to have those discussions.
When the…

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.

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Details

Case: [2016] NSWSC 1585
Decision Date: 02 November 2016

CaseChat Overview and Summary

In the case of Ross Bilton v Georgia Ligdas, the dispute involved multiple groups of plaintiffs seeking easements over a property owned by the defendant. The matter was heard in the Supreme Court of Queensland. The plaintiffs, Bilton and others, sought easements by prescription over a passageway and by virtue of section 88K of the Property Law Act 1974 (Qld). The defendant, Ligdas, resisted the claims, arguing that the plaintiffs were not entitled to the easements as sought.

The primary legal issues before the court were whether there was any disentitling conduct by the defendant that would prevent her from benefiting from section 88K (5) of the Property Law Act 1974 (Qld) and whether the second gate installed by the defendant constituted an obstruction to the easements granted. The court had to determine the appropriate allocation of costs between the parties.

The court held that the defendant was entitled to resist the section 88K claim as her conduct did not amount to disentitling conduct under section 88K (5). Consequently, the court ruled that each party should bear their own costs. Regarding the second gate, the court found that it obstructed the prescriptive easement to which two sets of plaintiffs were entitled. As a result, the gate was ordered to be removed.

The court's final orders were that the defendant was not to be denied the benefit of section 88K (5) and that each party was to bear their own costs. Additionally, the second gate was to be removed to ensure it did not obstruct the easements granted to the plaintiffs.

Orders