Tran v Cowan

[2006] QSC 162

SUPREME COURT OF QUEENSLAND

CITATION:

Tran & Anor v Cowan & Ors [2006] QSC 162

PARTIES:

VAN DAT TRAN and LINDA LE TRAN
(applicants)
v
KERRY JAMES COWAN and JILLIAN RUTH COWAN
(first respondents)
and
B.M.D. CONSTRUCTIONS PTY LTD
(ABN 69 010 126 100)
(second respondent)

FILE NO:

BS9162 of 2005

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1-2 June 2006

JUDGE:

Chesterman J

ORDER:

The first respondents are to pay the applicants’ costs of and incidental to the application heard on 1-2 June 2006 to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – whether special circumstances exist for award of costs against servient owner under s 180(6) of the Property Law Act 1974 – powers of court – whether court may order for costs on indemnity basis

Property Law Act 1974 (Qld), s 180(6)

Tran v Cowan [2006] QSC 136, considered

COUNSEL:

D Kelly for the applicants
P A Kronberg for the first respondents

SOLICITORS:

Nicol Robinson Halletts for the applicants
Westside Lawyers for the first respondents

1. On 14 June 2006 I acceded to the applicants’ application and made an order imposing a statutory right of user over the respondents’ land.  The nature of the dispute and the reasons for imposing an easement over the land are set out in
   

   [2006] QSC 136.

1. I made no order for costs, but by arrangement with the parties, have received written submissions on that question.  The successful applicants seek an order for costs, and on the indemnity basis.  The respondents submit that there should be no order as to costs.

1. Section 180(6) of the Property Law Act 1974 provides that:

‘In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner.’

1. The applicants identify a number of circumstances which they submit are sufficiently ‘special’ to justify an order for costs in their favour.  The factors are:

‘(a)The conduct of the Applicants has at all times been just and reasonable in the circumstances.

(b)No challenge was made to the evidence of the Applicants and they were not required for cross-examination.

(c)No cross-examination was undertaken on the Applicant’s expert witness.

(d)The evidence of the Applicant’s witnesses, who were

cross-examined, has been found by your Honour to be acceptable in contrast to the evidence of Mr Cowan.

(e)The strong case of the Applicants for the necessity of the easement from the very beginning.

(f)The Respondents’ action in creating a dangerous hazard by the erection of the fence in the face of reasonable opposition.

(g)The Respondents’ inability to advance any consideration against the sharing of the driveway as set out in paragraph 19 of the Judgment.

(h)The findings made in paragraph 27 of the Judgment.

(i)The conclusions reached in paragraph 35 of the Judgment.

(j)Paragraph 45 of the Judgment.

(k)The Orders made reflect the offer made…