The Uniting Church in Australia Property Trust (NSW) v Crowe (No 2) [2024] NSWSC 1560

The Uniting Church in Australia Property Trust (NSW) v Crowe (No 2) [2024] NSWSC 1560

The plaintiff was primarily but not totally successful. Costs were apportioned so that the plaintiff is to pay the defendant's costs solely referable to the claims for the concrete slab and upper stair, but otherwise the defendant is to pay the plaintiff's costs of the proceedings, including the cross-claim. Neither side was entitled to indemnity or special costs: the offers of compromise did not justify displacing the ordinary practice on costs.

Parties
Plaintiff / Cross Defendant: The Uniting Church in Australia Property Trust (NSW); Defendant / Cross Claimant: Stephen Desmond Crowe
Jurisdiction
Australia
Judgment Date
04 December 2024
Procedural Posture
Equity Real Property (statement of Claim and Cross Claim) / Post Trial; Application and Determination of Orders and Costs
Outcome
Orders made for mandatory injunctions, dismissal of cross-claim, and apportionment of costs as per reasons; see summary below.
Legal Topics
Trespass, Mandatory Injunction, Apportionment of Costs, Offers of Compromise, Statutory Easements, Estoppel
Equity Real Property Civil Procedure Costs Trespass Mandatory Injunction Apportionment of Costs Offers of Compromise +2 more

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Parties

The Uniting Church in Australia Property Trust (NSW)

Plaintiff / Cross Defendant

Stephen Desmond Crowe

Defendant / Cross Claimant

Procedural Posture

Equity Real Property (statement of Claim and Cross Claim) / Post Trial; Application and Determination of Orders and Costs

Legal Issues

  1. 1 Entitlement of plaintiff to relief for trespass and removal of structures
  2. 2 Entitlement of defendant to easements or relief by estoppel or implied agreement
  3. 3 Apportionment of costs where both parties succeed in part

Ratio Decidendi

The plaintiff was primarily but not totally successful. Costs were apportioned so that the plaintiff is to pay the defendant's costs solely referable to the claims for the concrete slab and upper stair, but otherwise the defendant is to pay the plaintiff's costs of the proceedings, including the cross-claim. Neither side was entitled to indemnity or special costs: the offers of compromise did not justify displacing the ordinary practice on costs.

Court Disposition

Orders made for mandatory injunctions, dismissal of cross-claim, and apportionment of costs as per reasons; see summary below.

Orders

  • Within 90 days, defendant to remove deck, roof overhang, and balcony from plaintiff's land as described in survey.
  • Second Further Amended Statement of Cross-Claim is dismissed.