Crawley v Baxter (No 3) [2023] NSWSC 955

Crawley v Baxter (No 3) [2023] NSWSC 955

While a defendant in an application under s 88K of the Conveyancing Act 1919 (NSW) is ordinarily entitled to have his costs paid by the applicant, a departure from this rule is justified where the defendant's conduct in resisting the easement is unreasonable. Here, the defendant actively pursued defences based on alternative access routes that were untenable and spurious, thereby unnecessarily prolonging proceedings and causing additional costs. However, the conduct was not so unreasonable as to warrant an order for all of the plaintiff's costs, but justified an order for the defendant to pay 50% of the plaintiff's costs, save as otherwise ordered for the notices of motion.

Parties
Plaintiff: Edwin Crawley; Defendant: John Baxter
Jurisdiction
Australia
Judgment Date
15 August 2023
Procedural Posture
Civil Application for Easement (land Law) / Post Trial Costs Determination
Outcome
Defendant to pay plaintiff's costs of specified notices of motion on ordinary basis; defendant to pay 50% of plaintiff's costs of proceedings on ordinary basis.
Legal Topics
Easements, Imposition of Easement, Costs, Reasonableness of Conduct, Section 88 K Conveyancing Act 1919 (nsw)
Equity Land Law Easements Imposition of Easement Costs Reasonableness of Conduct Section 88 K Conveyancing Act 1919 (nsw)

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Parties

Edwin Crawley

Plaintiff

John Baxter

Defendant

Procedural Posture

Civil Application for Easement (land Law) / Post Trial Costs Determination

Legal Issues

  1. 1 Whether the default costs order under s 88K(5) Conveyancing Act 1919 (NSW) should be departed from due to the defendant's conduct
  2. 2 Whether the defendant's defence to the imposition of an easement involved unreasonable conduct such that costs should be awarded against him
  3. 3 Appropriate order as to costs of the two interlocutory motions

Ratio Decidendi

While a defendant in an application under s 88K of the Conveyancing Act 1919 (NSW) is ordinarily entitled to have his costs paid by the applicant, a departure from this rule is justified where the defendant's conduct in resisting the easement is unreasonable. Here, the defendant actively pursued defences based on alternative access routes that were untenable and spurious, thereby unnecessarily prolonging proceedings and causing additional costs. However, the conduct was not so unreasonable as to warrant an order for all of the plaintiff's costs, but justified an order for the defendant to pay 50% of the plaintiff's costs, save as otherwise ordered for the notices of motion.

Court Disposition

Defendant to pay plaintiff's costs of specified notices of motion on ordinary basis; defendant to pay 50% of plaintiff's costs of proceedings on ordinary basis.

Orders

  • The defendant to pay the plaintiff's costs of the defendant's notice of motion filed on 20 September 2022 and the plaintiff's notice of motion filed on 29 March 2023 on the ordinary basis, as agreed or assessed.
  • Save as provided by Order 1, the defendant to pay 50% of the plaintiff's costs of the proceedings on the ordinary basis, as agreed or assessed.