Stanford v Pittwater Aquatic Club Co-Operative Limited (No 2)

In Stanford v Pittwater Aquatic Club Co-Operative Limited (No 2), the applicant sought to impose an easement over the respondent’s land under section 88K of the Conveyancing Act 1919 (NSW). The primary dispute centred around whether the applicant was entitled to an easement to facilitate access to the sea, and if so, whether the court should depart from the ordinary rule that the applicant would bear the respondent’s costs. The case was heard in the Land and Environment Court of New South Wales. The applicant, Stanford, sought to impose the easement to provide access to the sea from his land, which is landlocked. The respondent, Pittwater Aquatic Club Co-Operative Limited, opposed the application, arguing that it would cause significant damage to their property and operations.

The court was required to determine whether an easement could be imposed under section 88K of the Conveyancing Act 1919 (NSW) and whether the ordinary rule that the applicant should bear the respondent’s costs should be departed from due to the respondent’s conduct. The court had to assess the merits of the application and the reasonableness of the respondent’s conduct throughout the proceedings. In particular, the court needed to weigh the public interest in facilitating access to the sea against the potential harm to the respondent’s property and operations. Additionally, the court examined whether the respondent’s actions were vexatious or oppressive, which could justify a departure from the usual costs order.

The court found that an easement could be imposed, as it was necessary to provide access to the sea and the applicant had a legitimate need for it. However, the court was critical of the respondent’s conduct, which it found to be unreasonable and vexatious. The respondent had engaged in protracted and unnecessary litigation, causing significant delay and additional costs to the applicant. The court held that the respondent’s conduct warranted a departure from the ordinary rule of costs. Consequently, the court ordered the respondent to pay a portion of the applicant’s costs, recognising the disproportionate burden placed on the applicant due to the respondent’s unreasonable actions.