Ross Bilton & Ors v Georgia Ligdas (Costs) [2016] NSWSC 1585

Ross Bilton & Ors v Georgia Ligdas (Costs) [2016] NSWSC 1585

Mrs Ligdas was reasonably entitled to resist the Bilton and Weaver s 88K claim and her conduct, although including an unreasonable condition imposed by her solicitor and reliance on an erroneous valuation, was not sufficient to deprive her of the benefit of s 88K(5). The Dwyers and Mr Hudson were entitled to costs because they succeeded on an easement as of right, while Mrs Ligdas was entitled to costs against Bilton and Weaver under s 88K(5); treating the plaintiffs as a united group and attributing the case 50% to No.35 and 50% to Nos.39 and 41, the competing entitlements should be offset so each party pays their own costs. The second gate was unnecessary for security and burdened the...

Jurisdiction
Australia
Judgment Date
02 November 2016
Procedural Posture
Costs and Final Orders in Equity Proceedings Concerning Easements, Including an Easement Under S 88 K of the Conveyancing Act 1919 (nsw) / Post Judgment Determination of Disputed Orders and Costs After Reasons in Ross Bilton & Ors V Georgia Ligdas [2016] NSWSC 1262
Outcome
Orders made in accordance with the agreed Short Minutes of Order, with additional orders for removal of the second gate and for each party to pay his or her own costs.
Legal Topics
['easements by Prescription' 'easements Under S 88 K of the Conveyancing Act 1919 (nsw)' 'costs Under S 88 K(5)' 'gates and Obstruction of Right of Way' 'reasonable Necessity for Easement']
['costs' 'real Property'] ['easements by Prescription' 'easements Under S 88 K of the Conveyancing Act 1919 (nsw)' 'costs Under S 88 K(5)' 'gates and Obstruction of Right of Way' 'reasonable Necessity for Easement']

Case Brief

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Procedural Posture

Costs and Final Orders in Equity Proceedings Concerning Easements, Including an Easement Under S 88 K of the Conveyancing Act 1919 (nsw) / Post Judgment Determination of Disputed Orders and Costs After Reasons in Ross Bilton & Ors V Georgia Ligdas [2016] NSWSC 1262

Legal Issues

  1. 1 ['Whether the Ligdas Passageway should have one or two locked gates and whether the second gate should be removed.' 'Whether the s 88K easement should be limited by hours of use.' 'What wording and length should be used in the declarations and easement.' "Whether Mrs Ligdas's conduct justified depriving her of the benefit of the usual costs order under s 88K(5)." 'How costs should be allocated where some plaintiffs succeeded by prescription and others succeeded under s 88K.']

Ratio Decidendi

Mrs Ligdas was reasonably entitled to resist the Bilton and Weaver s 88K claim and her conduct, although including an unreasonable condition imposed by her solicitor and reliance on an erroneous valuation, was not sufficient to deprive her of the benefit of s 88K(5). The Dwyers and Mr Hudson were entitled to costs because they succeeded on an easement as of right, while Mrs Ligdas was entitled to costs against Bilton and Weaver under s 88K(5); treating the plaintiffs as a united group and attributing the case 50% to No.35 and 50% to Nos.39 and 41, the competing entitlements should be offset so each party pays their own costs. The second gate was unnecessary for security and burdened the...

Court Disposition

Orders made in accordance with the agreed Short Minutes of Order, with additional orders for removal of the second gate and for each party to pay his or her own costs.

Orders

  • ['Mrs Ligdas is to remove the second gate at the junction of the Ligdas Passageway and the Church Street Passageway.' 'Each party to the proceedings is to pay his or her own costs.' 'The terms of the easement should be amended to provide for use by the Plaintiffs between 7am and 10pm.' 'The dispute about wording in...