Crosby v Hanley [2021] NSWSC 507

Crosby v Hanley [2021] NSWSC 507

The plaintiffs were justified in commencing the proceedings in response to interferences with their easement. Although the usual rule is that the discontinuing party pays costs, the defendants' subsequent actions remedied the complaints, and the plaintiffs achieved practical success. The appropriate order is that the defendants pay one half of the plaintiffs' costs, as some costs could have been avoided had the defendants acted sooner.

Parties
First Plaintiff: Sally Crosby; Second Plaintiff: Kenneth Crosby; First Defendant: Jason Hanley; Second Defendant: Samantha Hanley
Jurisdiction
Australia
Judgment Date
10 May 2021
Procedural Posture
Equity / Application for Leave to Discontinue and Costs Orders
Outcome
Proceedings discontinued; defendants to pay one half of the plaintiffs' costs.
Legal Topics
Costs, Discontinuance of Proceedings, Easements, Private Nuisance
Civil Procedure Property Law Costs Discontinuance of Proceedings Easements Private Nuisance

Case Brief

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Parties

Sally Crosby

First Plaintiff

Kenneth Crosby

Second Plaintiff

Jason Hanley

First Defendant

Samantha Hanley

Second Defendant

Procedural Posture

Equity / Application for Leave to Discontinue and Costs Orders

Legal Issues

  1. 1 Whether the plaintiffs should be granted leave to discontinue the proceedings
  2. 2 Who should bear the costs of the discontinued proceedings

Ratio Decidendi

The plaintiffs were justified in commencing the proceedings in response to interferences with their easement. Although the usual rule is that the discontinuing party pays costs, the defendants' subsequent actions remedied the complaints, and the plaintiffs achieved practical success. The appropriate order is that the defendants pay one half of the plaintiffs' costs, as some costs could have been avoided had the defendants acted sooner.

Court Disposition

Proceedings discontinued; defendants to pay one half of the plaintiffs' costs.

Orders

  • Leave is granted to the plaintiffs to discontinue the proceedings pursuant to UCPR r 12.1(1)(b).
  • The defendants are ordered to pay one half of the plaintiffs' costs of the proceedings.