McKeand v Thomas [2006] NSWSC 1356

McKeand v Thomas [2006] NSWSC 1356

Because the plaintiffs did not obtain the main remedy sought, namely an easement, but did obtain significant and valuable relief preserving their right to essential services for a period and damages for breach of warranty of authority, and because the defendants had denied those rights and defended jointly, the appropriate exercise of the costs discretion was to order the defendants to pay 75 percent of the plaintiffs' costs. The injunction was to run from receipt of damages because the earlier reasons made receipt of damages, not merely entry of judgment, the event relieving Mrs Thomas from the equitable obligation.

Jurisdiction
Australia
Judgment Date
30 November 2006
Procedural Posture
Equity Proceedings Concerning Claimed Easement and Related Relief / Final Orders and Costs Following Judgment in Mc Keand V Thomas [2006] NSWSC 1028
Outcome
Defendants to pay 75% of the plaintiff's costs.
Legal Topics
['final Orders' 'easement' 'estoppel' 'breach of Warranty of Authority' 'caveat' 'calderbank Offer' 'interlocutory Relief' 'proportionality of Costs']
['equity' 'civil Procedure' 'costs' 'property Law'] ['final Orders' 'easement' 'estoppel' 'breach of Warranty of Authority' 'caveat' 'calderbank Offer' 'interlocutory Relief' 'proportionality of Costs']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Claimed Easement and Related Relief / Final Orders and Costs Following Judgment in Mc Keand V Thomas [2006] NSWSC 1028

Legal Issues

  1. 1 ['What final orders should be made where each party proposed short minutes after the earlier judgment.' 'Whether the injunction restraining Mrs Thomas should run for six months from the making of orders or from receipt of damages paid by Mr Thomas.' 'Whether the plaintiffs should be required to disconnect their current underground services and when.' 'Whether the caveat on title should be removed.' 'What costs order should be made where the plaintiffs were only partially successful and had rejected settlement offers including a Calderbank offer.' 'Whether costs of the caveat extension application should be treated as costs in the cause.' 'Whether proportionality justified a different costs order.']

Ratio Decidendi

Because the plaintiffs did not obtain the main remedy sought, namely an easement, but did obtain significant and valuable relief preserving their right to essential services for a period and damages for breach of warranty of authority, and because the defendants had denied those rights and defended jointly, the appropriate exercise of the costs discretion was to order the defendants to pay 75 percent of the plaintiffs' costs. The injunction was to run from receipt of damages because the earlier reasons made receipt of damages, not merely entry of judgment, the event relieving Mrs Thomas from the equitable obligation.

Court Disposition

Defendants to pay 75% of the plaintiff's costs.

Orders

  • ['Declaration that there was no oral or other agreement entered into between the plaintiffs and Mrs Thomas for the creation of any easement.' 'Injunction restraining Mrs Thomas in the form proposed by the plaintiffs, running by reference to six months from receipt of damages.' 'Order requiring the McKeands to...