Stoneman v Bourne - [2016] VSC 726

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2015 04603

RONALD JAMES STONEMAN	First Plaintiff
- and –
KEVIN BRIAN STONEMAN	Second Plaintiff
v
ANTHONY ALLAN BOURNE	First Defendant
- and –
NICOLE FIEDLER BOURNE	Second Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2016
DATE OF JUDGMENT:	2 December 2016
CASE MAY BE CITED AS:	Stoneman v Bourne
MEDIUM NEUTRAL CITATION:	[2016] VSC 726

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COSTS – Cross applications for costs in the proceeding following settlement at mediation – Court’s discretion as to costs – Mistaken factual basis for plaintiffs’ claim – Defendants substantially successful in relation to the key questions – Repeated attempts to negotiate a settlement – Alleged improper purpose – Conduct of the litigation unreasonable – Supreme Court Act1986 s 24.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr W Rimmer	Grindal & Patrick
For the Defendants	Mr M Guthrie	Whitehead Summons Lawyers

HER HONOUR:

Introduction

The plaintiffs and the defendants have each made applications to the Court for their costs of the proceeding following its settlement on 7 September 2016.

The proceeding concerned, in substance, the use by the defendants (as owners of the dominant land) of a registered carriageway easement on land owned by the plaintiffs (the ‘servient land’). The carriageway easement was created in 1934. It reserves to the owners of the servient land ‘full and free right and liberty (but without any obligation so to do) to place, erect and maintain gates together with all necessary fixtures in connection therewith at such point or points across the said land coloured yellow on the said diagram as [the owners of the servient land] may at any time select and with the power to affix a lock or locks on such gates’.

The carriageway easement has long been covered by a gravel road (the ‘roadway’).[1] The roadway is wider than the carriageway easement registered on the title of the servient land. The defendants rely upon the roadway to access their land. They otherwise have no access to the public road system.
[1]Sometimes referred to by the parties as the ‘driveway’.

The dispute between the plaintiffs and the defendants concerned two principal issues:

(a) the plaintiffs’ power as owner(s) of the servient land to place gates across the carriageway easement and the defendants’ obligation to keep any such gates shut and locked; and

(b) the dimensions of the carriageway easement.

Of particular controversy was an existing gate located at or close to the entrance to the servient land adjacent to the railway line (the ‘railway gate’). The extent of the defendants’ obligation, pursuant to the easement, to close the railway gate was central to the dispute. The plaintiffs allege that the defendants have repeatedly failed to shut the railway gate.

Only days before the trial of the proceeding – and after years of disputation about the obligation to close the railway gate – the defendants established that the railway gate was not…

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 Stoneman v Bourne

Details

AGLC: Stoneman v Bourne [2016] VSC 726
Case: [2016] VSC 726
Decision Date: 2 December 2016

CaseChat Overview and Summary

In the case of Stoneman v Bourne, the plaintiffs sought costs following the settlement of their claim at mediation. The dispute concerned allegations of improper conduct during the litigation process, including claims that the defendants had pursued the matter for an improper purpose and had exhibited unreasonable conduct. The matter was heard in the Supreme Court of Victoria. The plaintiffs argued that they were entitled to costs due to the defendants' alleged misconduct, while the defendants contended that they were substantially successful in relation to the key questions of the case, and that the plaintiffs' claim was based on a mistaken factual basis.

The court was required to consider the statutory framework governing costs in such circumstances, particularly section 24 of the Supreme Court Act 1986. This section provides the court with discretion to order costs on a party, taking into account various factors, including the conduct of the parties and the outcome of the case. The court needed to weigh the defendants' substantial success against the plaintiffs' claims of improper conduct and the mistaken factual basis of their claim.

After examining the evidence and arguments presented by both parties, the court found that the defendants were substantially successful in relation to the key questions of the case. The court also concluded that the plaintiffs' claim was based on a mistaken factual basis, which contributed to the unreasonable conduct of the litigation. Furthermore, the court determined that the defendants had not acted for an improper purpose but had instead engaged in repeated attempts to negotiate a settlement. The court found the plaintiffs' conduct in the litigation to be unreasonable, which led to the conclusion that the defendants were entitled to costs under section 24 of the Supreme Court Act 1986.

The court ordered that the plaintiffs pay the defendants' costs of the proceeding, reflecting the defendants' substantial success and the plaintiffs' unreasonable conduct during the litigation. The court's decision highlights the importance of the conduct of the parties and the outcome of the case in determining costs following a settlement at mediation.

Orders