The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (No 3) [2020] NSWSC 1754

The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (No 3) [2020] NSWSC 1754

The appropriate jurisdiction for the Owners Corporation's claims was the Supreme Court, and costs should follow the event in both proceedings. The Owners Corporation was successful in its trespass claim, and the Murrells were successful in obtaining an easement under s 88K but failed in all other claims. The conduct of both parties was unreasonable, but not to a degree warranting departure from the usual rules on costs. Owners Corporation is awarded its costs in both proceedings.

Jurisdiction
Australia
Judgment Date
07 December 2020
Procedural Posture
Equity Real Property List / Post Judgment Determination of Costs and Consequential Orders Following Reasons for Judgment
Outcome
Orders made to impose easement, and Murrells to pay Owners Corporation's costs in both proceedings.
Legal Topics
['costs' 'trespass' 'easements' 'nuisance' 'injunctive Relief' 'court Jurisdiction']
['equity' 'real Property' 'civil Procedure'] ['costs' 'trespass' 'easements' 'nuisance' 'injunctive Relief' 'court Jurisdiction']

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Procedural Posture

Equity Real Property List / Post Judgment Determination of Costs and Consequential Orders Following Reasons for Judgment

Legal Issues

  1. 1 ['Whether costs should follow the event in light of partial success and alleged unreasonable conduct' 'Whether the Supreme Court was the appropriate jurisdiction for the trespass and nuisance claims under the District Court Act 1973 (NSW)' 'Whether conduct of parties warranted departure from the usual costs rule' 'Whether costs of proceedings for imposition of easement under s 88K of the Conveyancing Act 1919 (NSW) should be borne by applicant']

Ratio Decidendi

The appropriate jurisdiction for the Owners Corporation's claims was the Supreme Court, and costs should follow the event in both proceedings. The Owners Corporation was successful in its trespass claim, and the Murrells were successful in obtaining an easement under s 88K but failed in all other claims. The conduct of both parties was unreasonable, but not to a degree warranting departure from the usual rules on costs. Owners Corporation is awarded its costs in both proceedings.

Court Disposition

Orders made to impose easement, and Murrells to pay Owners Corporation's costs in both proceedings.

Orders

  • ["Defendants (Murrells) to pay plaintiff's (Owners Corporation) costs in proceeding 2019/201673." "Pursuant to s 88K of the Conveyancing Act, order imposing easement on CP/SP85044 in terms annexed as 'A'." 'Defendant to execute the easement and produce or arrange CP/SP85044 for registration of the easement.'...