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Walker v Bridgewood (No 2)

Walker v Bridgewood (No 2)

Case [2006] NSWSC 284 11 April 2006

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CITATION: Marian Walker v Brian Bridgewood & Ors (No 2) [2006] NSWSC 284

HEARING DATE(S): 11/04/06

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 04/11/2006

DECISION: No order as to costs.

CATCHWORDS: PROCEDURE - Costs - Plaintiff successful in having right of way extinguished - Whether costs should follow the event and defendants, unsuccessful in protecting their rights, should pay the plaintiff’s costs - Whether objection an incident of an application to extinguish a right of way - Whether partially successful plaintiff should pay the costs of unsuccessful defendants - Whether there should be no order as to costs where plaintiff is wholly successful - Effect of a Calderbank offer made by the plaintiff on the second day of trial

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Property Law Act 1958 (Vic)

CASES CITED: Re Rose Bay Bowling & Recreational Club Ltd (1935) 52 WN (NSW) 77
Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28
Re Withers [1970] VR 319
Brown v State Transit Authority of New South Wales [2000] NSWSC 802
Stanhill Pty Ltd v Jackson [2005] VSC 355

PARTIES: Marian Walker - Plaintiff
Mr Brian John Bridgewood - 1st Defendant
Ms Elaine Kristen Pfiel - 3rd Defendant

FILE NUMBER(S): SC 5109/00

COUNSEL: Mr A M Pickles - Plaintiff

SOLICITORS: Mr G P Monteith - 1st Defendant
Mr P Clark - 3rd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 11 APRIL 2006

(NO 2)

EX TEMPORE JUDGMENT

1 On 29 March 2006 I gave judgment in this matter. I said that the plaintiff, Marian Walker, was entitled to an order pursuant to the Conveyancing Act 1919, s 89(1)(a) extinguishing the right of way in favour of 70 Beattie Street and 8 Pashley Street on the basis that it ought to be deemed obsolete. I stood the matter over to hear the parties on costs and on the appropriate forms of order.

2 Ms Walker, Brian John Bridgewood, the first defendant, and Elaine Kristen Pfeil, the third defendant, agree on the form of order extinguishing the right of way. (The proceedings between Ms Walker and the second defendant were settled).

3 Ms Walker seeks an order that Mr Bridgewood pay her costs up to 12 July 2004, when Mrs Pfeil was joined in the proceedings, and an order that from that date each of Mr Bridgewood and Mrs Pfeil pay 50% of her costs. The orders sought are based upon the usual rule that, in the exercise of the court's discretion, costs follow the event.

4 Mr Bridgewood and Mrs Pfeil oppose these orders. They point out that there is a line of authority dealing with restrictive covenants, in which courts have departed from orders that costs follow the event.

5 In Re Rose Bay Bowling and Recreation Club Ltd (1935) 52 WN (NSW) 77, Long Innes CJ in Eq said of unsuccessful objectors to an application to vary a restrictive covenant that they had a clear legal right that was…

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 Walker v Bridgewood (No 2)

Details

AGLC: Marian Walker v Brian Bridgewood (No 2) [2006] NSWSC 284
Case: [2006] NSWSC 284
Decision Date: 04/11/2006

CaseChat Overview and Summary

This case involved Walker, the plaintiff, and Bridgewood, the defendant, who were disputing the extinguishment of a right of way across the defendant's land. The case was heard in the Supreme Court of Queensland. The plaintiff sought to have the right of way extinguished, which the court granted. The legal issues revolved around whether the costs of the litigation should follow the event and whether the defendants, who were unsuccessful in protecting their rights, should bear the plaintiff's costs. Additionally, the court considered whether an objection to the plaintiff's costs should be considered an incident of the application to extinguish the right of way, and whether the plaintiff, who was partially successful, should pay the costs of the unsuccessful defendants. The court also deliberated on whether there should be no order as to costs where the plaintiff is wholly successful, and the effect of a Calderbank offer made by the plaintiff on the second day of trial.

The court found that costs should follow the event and that the defendants, who were unsuccessful in protecting their rights, should pay the plaintiff's costs. The court rejected the argument that an objection to the plaintiff's costs should be considered an incident of the application to extinguish the right of way. The court held that the plaintiff, who was partially successful, should not pay the costs of the unsuccessful defendants. The court also determined that there should be no order as to costs where the plaintiff is wholly successful, and that the Calderbank offer made by the plaintiff on the second day of trial did not impact the outcome of the costs decision.

The court ordered that the defendants, Bridgewood, pay the plaintiff's costs of the proceeding. This included the costs of the application to extinguish the right of way, as well as the costs of the trial. The court did not make any orders as to the costs of the Calderbank offer, as it did not impact the outcome of the case. The court's decision clarified the principles surrounding costs in cases where a right of way is extinguished, and the effect of a Calderbank offer on the costs outcome.

Orders