Kladis v Lowe (No 4) [2017] NSWSC 1259

Kladis v Lowe (No 4) [2017] NSWSC 1259

The plaintiff succeeded on the general entitlement to a driveway and ultimately obtained relief, but failed on the precise form of development application in Kladis (No 1) and Kladis (No 2), including because an earlier proposed application involved a permanent trespass and later failed to identify a specific development application. The defendants' opposition to the iteration considered in Kladis (No 3) was unreasonable. Evaluating the outcome and relative success, the appropriate order was that the first and second defendants pay one-third of the plaintiff's costs. Indemnity costs were refused because the June 2014 offer required consent to a development application that would have...

Jurisdiction
Australia
Judgment Date
19 September 2017
Procedural Posture
Costs in Equity Real Property List Proceedings Concerning Easement and Development Application Consent / Costs Judgment After Orders Requiring the First and Second Defendants to Give Consent to Lodgement of a Development Application
Outcome
First and second defendants ordered to pay one-third of the plaintiff's costs of the proceedings; indemnity costs not awarded.
Legal Topics
['costs Discretion' 'costs Follow the Event' 'indemnity Costs' 'offer of Compromise' 'calderbank Letter' 'easements' 'development Application Consent']
['civil Procedure' 'costs' 'real Property'] ['costs Discretion' 'costs Follow the Event' 'indemnity Costs' 'offer of Compromise' 'calderbank Letter' 'easements' 'development Application Consent']

Case Brief

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Procedural Posture

Costs in Equity Real Property List Proceedings Concerning Easement and Development Application Consent / Costs Judgment After Orders Requiring the First and Second Defendants to Give Consent to Lodgement of a Development Application

Legal Issues

  1. 1 ["What costs order should be made following the plaintiff's partial success in obtaining orders requiring consent to lodgement of a development application for a driveway over land burdened by an easement." "Whether the defendants should pay the plaintiff's costs on an indemnity basis because they rejected the plaintiff's letter and offer of compromise dated 24 June 2014." 'Whether costs should be adjusted because affidavits from experts were prepared but not read.']

Ratio Decidendi

The plaintiff succeeded on the general entitlement to a driveway and ultimately obtained relief, but failed on the precise form of development application in Kladis (No 1) and Kladis (No 2), including because an earlier proposed application involved a permanent trespass and later failed to identify a specific development application. The defendants' opposition to the iteration considered in Kladis (No 3) was unreasonable. Evaluating the outcome and relative success, the appropriate order was that the first and second defendants pay one-third of the plaintiff's costs. Indemnity costs were refused because the June 2014 offer required consent to a development application that would have...

Court Disposition

First and second defendants ordered to pay one-third of the plaintiff's costs of the proceedings; indemnity costs not awarded.

Orders

  • ["The first and second defendants pay one-third of the plaintiff's costs of the proceedings."]