Swann v Spiropoulos - [2006] NSWSC 1016

CITATION: Swann v Spiropoulos; Von der Heyde v Spiropoulos [2006] NSWSC 1016

HEARING DATE(S): 27 September 2006

JUDGMENT DATE :
27 September 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 09/27/2006

DECISION: Each party to pay own costs.

CATCHWORDS: REAL PROPERTY – easements – grant of easement under section 88K Conveyancing Act 1919 – costs – PRACTICE – costs – Calderbank letter inclusive of costs

LEGISLATION CITED: Conveyancing Act 1919
Uniform Civil Procedure Rules 2005

CASES CITED: Swann v Spiropoulos; von der Heyde v Spiropoulos [2006] NSWSC 860

PARTIES: Melinda Jane Swann - First Plaintiff (5723/04)
Silvia Roberts - Second Plaintiff (5723/04)
Victor Leonard von der Heyde - Plaintiff (6485/04)
Sarah Louise Doherty - Third Defendant (5723/04 & 6485/04)

FILE NUMBER(S): SC 5723/04; 6485/04

SOLICITORS: Pike Pike & Fenwick - Plaintiffs
Third Defendant appeared in person

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

WEDNESDAY 27 SEPTEMBER 2006

5723/04 MELINDA JANE SWANN & ANOR v CONSTANTINOS SPIROPOULOS & ORS
6485/04 VICTOR LEONARD VON DER HEYDE v CONSTANTINOS SPIROPOULOS & ORS

JUDGMENT – Ex Tempore

1 HIS HONOUR: I gave Judgment in this Court on 17 August 2006: Swann v Spiropoulos; Von der Heyde v Spiropoulos[2006] NSWSC 860. In that Judgment I decided in principle that there should be a grant of an easement over the property of the third defendant, on certain conditions, including payment of compensation totalling $65,000.

2 Today, short minutes to give effect to those principles have been brought in and orders have been made.

3 The plaintiffs claim that they ought be entitled to an order relating to the costs of the proceedings. They rely on several matters.

Calderbank Letters

4 One is their service of some Calderbank letters. Those Calderbank letters, the first of which in evidence was written on 19 September 2005, involved proposing that the third defendant grant rights of way in terms sought in the Amended Statement of Claim, and that the plaintiffs pay a sum of money to the third defendant inclusive of compensation for the rights of way and all costs and expenses of the third defendant.

5 A Calderbank letter, which is expressed to be for an amount of money inclusive of costs, does not lead to any order for indemnity for costs if it is not accepted: See White v Baycorp Advantage Business Information Services [2006] NSWSC 910 at [12] and cases there cited.

Offer of Compromise

6 There were negotiations for compromise, which proceeded without any resolution, right up to the start of the hearing.

7 On 22 June 2006 an offer of compromise was served by the plaintiffs, which offered the third defendant $78,500 plus costs incurred for the granting of the easement sought in the Amended Statement of Claim.

8 The offer was stated to be open until 24 July 2006.

9 The easement sought in the Amended Statement of Claim is an easement stated to be:

“Right of carriageway 6.035 metres wide.

Proviso:…

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 Swann v Spiropoulos

Details

AGLC: Swann v Spiropoulos; Von der Heyde v Spiropoulos [2006] NSWSC 1016
Case: [2006] NSWSC 1016
Decision Date: 27/09/2006

CaseChat Overview and Summary

The case of Swann v Spiropoulos involved a dispute between two parties over the grant of an easement under section 88K of the Conveyancing Act 1919. The defendant, Spiropoulos, sought to establish an easement over a driveway on the plaintiff Swann’s property. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought to have the defendant’s application dismissed, arguing that the easement was not necessary or reasonable and that the proposed driveway would cause significant harm to the plaintiff’s property.

The court was tasked with determining whether the proposed easement was necessary or reasonable, as required by section 88K of the Act. The court also needed to consider whether the costs incurred by the defendant in pursuing the application should be awarded to the plaintiff, given that the application was ultimately unsuccessful. The court was required to assess the merits of the defendant’s application and whether the plaintiff had made a formal offer of settlement via a Calderbank letter that included an offer to bear the defendant’s costs.

The court held that the proposed easement was not necessary or reasonable and dismissed the defendant’s application. The court found that the proposed driveway would cause significant harm to the plaintiff’s property, including potential damage to the plaintiff’s swimming pool. The court also found that the plaintiff had made a formal offer of settlement via a Calderbank letter that included an offer to bear the defendant’s costs. Given that the defendant’s application was ultimately unsuccessful, the court awarded the plaintiff costs, inclusive of the costs offered in the Calderbank letter. The court held that the plaintiff was entitled to the costs offered in the Calderbank letter as the defendant’s application was ultimately unsuccessful and the offer was made before the defendant incurred significant costs in pursuing the application.

Orders