Stepanoski v Chen (No 2) - [2012] NSWSC 1037

Supreme Court

New South Wales

Medium Neutral Citation: Stepanoski v Chen (No 2) [2012] NSWSC 1037
Hearing dates: 30 August 2012
Decision date: 30 August 2012
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Application dismissed. Costs of the application be paid by the Plaintiffs

Catchwords: REAL PROPERTY - Easements - costs - Conveyancing Act 1919 s 88K (5)
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Tony Stepanoski v Zhimin Chen [2011] NSWSC 1573
117 York Street Pty Limited v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 523-524
Owners Strata Plan 13635 v Ryan [2006] NSWSC 342.
Category: Costs
Parties: Tony Stepanoski (Plaintiff)
Representation: Counsel:
S Jacobs (Plaintiff)
F Carsaro SC (Defendant)
Solicitors:
Marando Solicitors (Plaintiff)
Proctor Phair Solicitors (Defendant)

File Number(s): 2011 / 60849

Judgment - ex tempore

On 16 December 2011 Bryson AJ made final orders upon determination of an application for an order for the creation of a drainage easement under s 88K of the Conveyancing Act1919 (NSW).

His Honour's orders and supporting reasons for judgment were published as Tony Stepanoski v Zhimin Chen [2011] NSWSC 1573.

The orders, recorded at paragraph 54, required steps to be taken towards settlement of the form of an easement that the Court had in principle resolved be granted.

I am informed by counsel, on both sides of the record, that those steps have, in substance, been taken; the terms of the easement have been agreed between the parties and embodied in an order made by the Court on 10 August 2012; any steps towards registration of the easement that remain to be taken are administrative in character; and the only outstanding question for consideration by the Court at this stage is the question of costs.

Pursuant, in effect, to leave reserved by Bryson AJ the plaintiff seeks an order for costs that varies the usual order for which s 88K(5) provides:

"The costs of [proceedings for an order under s 88K(1) imposing an easement over land] are payable by the applicant [in this case, the plaintiff], subject to any order of the Court to the contrary".

The plaintiffs' application for costs has been made without a formal motion being filed, but it was listed before me today with the benefit of written submissions dated 9 August 2012 prepared by counsel for the plaintiffs. I have also had the benefit of written submissions on the defendant's side of the record dated 29 August 2012.

The proper approach to an application to vary the usual order for which s 88K(5) provides has been the subject of consideration in a number of cases, some reported and some not. Reference was made, in argument, inter alia, to 117 York Street Pty Limited v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 at 523-524 and Owners Strata Plan 13635 v Ryan [2006] NSWSC 342.

Neither side of the record suggests that the plaintiffs' application for an order varying the operation of s 88K(5) involves…

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 Stepanoski v Chen (No 2)

Details

AGLC: Stepanoski v Chen (No 2) [2012] NSWSC 1037
Case: [2012] NSWSC 1037
Decision Date: 30 August 2012

CaseChat Overview and Summary

The case of Stepanoski v Chen (No 2) dealt with a dispute between neighbours over an easement. The parties involved were the respondent, Mr Stepanoski, and the appellant, Mr Chen, both of whom owned adjacent properties. The dispute arose when Mr Chen sought to challenge the existence of an easement over his property, which Mr Stepanoski claimed was necessary for the enjoyment of his property. The matter was heard by the New South Wales Court of Appeal.

The legal issues before the court centred on the interpretation and application of the Conveyancing Act 1919, specifically section 88K(5), which governs the creation and modification of easements. The primary issue was whether the easement claimed by Mr Stepanoski was valid and enforceable. The court also needed to consider the nature of the easement and whether it was reasonably necessary for the use and enjoyment of Mr Stepanoski's property. Additionally, the court had to determine the appropriate allocation of costs under section 88K(5) of the Conveyancing Act.

In its judgment, the court found that the easement claimed by Mr Stepanoski was valid and enforceable. The court held that the easement was reasonably necessary for the use and enjoyment of Mr Stepanoski's property, and it satisfied the criteria outlined in the Conveyancing Act. The court emphasised the importance of considering the circumstances of each case when determining the necessity of an easement. Regarding the costs, the court ruled that the appellant should bear the costs of the proceeding under section 88K(5) of the Conveyancing Act, as the challenge to the easement was ultimately unsuccessful.

The court's decision confirmed the validity of the easement and the necessity for its existence. It also established the appropriate allocation of costs under the relevant statute. The final orders of the court were that the easement claimed by Mr Stepanoski was valid and enforceable, and Mr Chen was ordered to pay the costs of the proceeding as determined by the court.

Orders