The Owners - Strata Plan 85044 v Murrell; Murrell v The Owners - Strata Plan 85044 (No 3)

The Owners - Strata Plan 85044 v Murrell, and the related cross-claim, Murrell v The Owners - Strata Plan 85044 (No 3), were proceedings in the Supreme Court of New South Wales. The central dispute involved claims of trespass and private nuisance against Murrell, as well as a claim for the imposition of an easement. The court had to determine whether the claims related to trespass to land and private nuisance could have been initiated in the District Court and if they involved a question of title to land exceeding the jurisdictional threshold of that court. Additionally, the case required consideration of the appropriate allocation of costs in light of the conduct of the parties.

The legal issues before the court encompassed several key questions. Firstly, whether the District Court had jurisdiction over the claims for trespass to land and private nuisance. This hinged on whether such claims involved a question of title to land exceeding the jurisdictional threshold of the District Court. The court also needed to decide whether it was appropriate to apportion the costs between the successful and unsuccessful claims within the proceeding. Furthermore, the court had to determine whether the putative servient owner's conduct was unreasonable, which could affect the costs order under the Conveyancing Act 1919 (NSW), s 88K.

The Supreme Court found that while the District Court could potentially have jurisdiction over the claims, there was insufficient evidence to determine whether the value of the relevant land exceeded the jurisdictional threshold. Given the assumption that the District Court had jurisdiction, the court ruled that continuing the claims in the Supreme Court was warranted. The court also held that it was not appropriate to apportion costs between the successful and unsuccessful claims, as all parties had engaged in unreasonable conduct. Regarding the costs for the imposition of the easement, the court found that the putative servient owner's unreasonable conduct was partly responsive to the putative dominant tenement owner's unreasonable conduct, thus not warranting a costs order contrary to the position under s 88K(5) of the Conveyancing Act.

The final orders included that Murrell was to pay the successful plaintiff's costs. The court refrained from apportioning costs between the successful and unsuccessful claims and determined that the putative servient owner's conduct did not justify a costs order contrary to the Conveyancing Act.