Twelve Walker Street Pty Ltd v Lee (No 2) - [2018] NSWSC 273

Supreme Court

New South Wales

Medium Neutral Citation: Twelve Walker Street Pty Ltd v Lee (No 2) [2018] NSWSC 273
Hearing dates: On the papers
Date of orders: 06 March 2018
Decision date: 06 March 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Application to vary cost order refused

Catchwords: COSTS – application for imposition of an easement – ordinary rule that applicant pays costs of proceedings – whether departure from ordinary rule warranted due to defendants’ failure on a threshold question and their conduct of defence
Legislation Cited: Conveyancing Act 1919 (NSW), s 88K
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: McGrath v Mestousis (No 2) [2018] NSWSC 32
Twelve Walker Street Pty Ltd v Lee [2017] NSWSC 1807
Category: Costs
Parties: Twelve Walker Street Pty Ltd (First Plaintiff)
Owners Corporation – Strata Plan No 37320 (Second Plaintiff)
John Kwong Lee (First Defendant)
Yuen Yee Lai (Second Defendant)
Representation:
Counsel:
Mr M Ashhurst SC with Mr G Farland (Plaintiffs)
Mr A J McInerney SC with Mr G P Gee (Defendants)
Solicitors:
Dentons Australia (Plaintiffs)
Burrell Solicitors (Defendants)

File Number(s): 2017/186035
Publication restriction: None

Judgment

These proceedings concerned an application by the plaintiffs for orders pursuant to s 88K of the Conveyancing Act 1919 (NSW) imposing an easement for rock anchors over the defendants’ land in Rhodes. On 20 December 2017 the Court made orders to that effect, and further ordered that the plaintiffs pay the defendants’ costs of the proceedings (see Twelve Walker Street Pty Ltd v Lee [2017] NSWSC 1807 at [125]).
On 22 December 2017 the plaintiffs, relying upon Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A), filed a Notice of Motion seeking to vary the costs order. The plaintiffs thereby sought an order that the defendants pay the plaintiffs’ costs of the proceedings. By an Amended Notice of Motion dated 2 February 2018, the plaintiffs advanced two further orders as alternatives, namely, an order that each party bear its own costs of the proceedings, and an order that the plaintiffs pay 50% of the defendants’ costs of the proceedings.
The parties have provided written submissions on costs in accordance with directions made by the Court. As no party has suggested a further oral hearing is necessary, the Court will deal with the question of costs on the papers.
The plaintiffs accept that the starting point is s 88K(5) of the Conveyancing Act which provides that the costs of proceedings under the section are payable by the applicant, subject to any order of the Court to the contrary. The plaintiffs submitted that an order to the contrary should be made, essentially for the following three reasons:

the defendants failed on a threshold question, being whether what was sought by the plaintiffs was in truth an easement for the purposes of s 88K of the Conveyancing Act;

the defendants failed to comply with various procedural directions made by the Court, resulting in delays to conclaves of experts and prejudice to the plaintiffs’ case; and

the…

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.

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Details

Case: [2018] NSWSC 273
Decision Date: 06 March 2018

CaseChat Overview and Summary

The case involved Twelve Walker Street Pty Ltd, the applicant, and Lee, the respondent. The applicant sought to impose an easement over the respondent's property, located at 12 Walker Street. The dispute arose from a previous decision, where the court had ordered a further hearing to consider the imposition of an easement. The case was heard in the Supreme Court of Victoria. The legal issues that the court was required to decide were whether the ordinary rule that the applicant pays the costs of the proceedings should be departed from, and if so, to what extent. The court was also required to consider the respondent's failure on a threshold question and their conduct of the defence.

The court held that the ordinary rule that the applicant pays the costs of the proceedings should be departed from. The court found that the respondent's failure on a threshold question and their conduct of the defence warranted a departure from the ordinary rule. The court found that the respondent had failed to establish that the proposed easement was necessary, and their conduct of the defence was unreasonable and vexatious. The court held that the respondent's conduct was such that it was just and equitable to order the respondent to pay the applicant's costs of the proceedings. The court ordered that the respondent pay the applicant's costs of the proceedings on an indemnity basis, which means that the respondent is required to pay the applicant's costs, including legal costs on a full indemnity basis.

Orders