Braye v Tarnawskyj (No 2) [2019] NSWSC 659

Braye v Tarnawskyj (No 2) [2019] NSWSC 659

The plaintiff's amended Plan of Consolidation accurately reflected the Principal Judgment because the plaintiff had succeeded in adverse possession over the whole of the claimed land except the concrete pathway area, and the pathway ended at the commencement of the pergola gate. Both offers of compromise involved genuine compromises, the defendants did not show that non-acceptance was reasonable, and no cogent reason was established to depart from UCPR r 42.14; accordingly indemnity costs were ordered from 1 March 2019 against both defendants.

Jurisdiction
Australia
Judgment Date
05 June 2019
Procedural Posture
Practice and Procedure; Costs / On the Papers; Settlement of Final Orders and Costs Following Delivery of the Principal Judgment
Outcome
Form of order settled. Plaintiff entitled to indemnity costs from 1 March 2019.
Legal Topics
['form of Orders' 'adverse Possession' 'offers of Compromise' 'indemnity Costs' 'boundaries']
['practice and Procedure' 'costs' 'real Property'] ['form of Orders' 'adverse Possession' 'offers of Compromise' 'indemnity Costs' 'boundaries']

Case Brief

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Procedural Posture

Practice and Procedure; Costs / On the Papers; Settlement of Final Orders and Costs Following Delivery of the Principal Judgment

Legal Issues

  1. 1 ['What final orders should be made to reflect the Principal Judgment concerning the claimed land and the concrete pathway area.' "Whether the plaintiff's proposed amended Plan of Consolidation or the second defendant's proposed boundary along the line of occupation should be adopted." "Whether the plaintiff's offers of compromise were genuine compromises." "Whether the defendants' failure to accept either offer of compromise was reasonable." 'Whether the plaintiff should receive indemnity costs from 1 March 2019.']

Ratio Decidendi

The plaintiff's amended Plan of Consolidation accurately reflected the Principal Judgment because the plaintiff had succeeded in adverse possession over the whole of the claimed land except the concrete pathway area, and the pathway ended at the commencement of the pergola gate. Both offers of compromise involved genuine compromises, the defendants did not show that non-acceptance was reasonable, and no cogent reason was established to depart from UCPR r 42.14; accordingly indemnity costs were ordered from 1 March 2019 against both defendants.

Court Disposition

Form of order settled. Plaintiff entitled to indemnity costs from 1 March 2019.

Orders

  • ["The plaintiff's proposed form of orders was preferred." 'The second defendant is to remove the caveat lodged on the title of the claimed land within 7 days of final orders being made.' "The first and second defendants are to pay the plaintiff's costs on an indemnity basis from 1 March 2019."]