McGrath v Mestousis (No 2) [2018] NSWSC 32

McGrath v Mestousis (No 2) [2018] NSWSC 32

The plaintiffs are to pay the defendant's costs of the proceedings on the ordinary basis, save for specifically excluded costs, as the defendant's conduct was generally reasonable and did not warrant departure from the ordinary rule under s 88K(5) Conveyancing Act 1919 (NSW). The quantum of costs alone does not establish unreasonableness, and failure to accept Calderbank offers was not unreasonable in the circumstances.

Parties
First Plaintiff: Patrick Raymond McGrath; Second Plaintiff: Sally Jane McGrath; Defendant: Kristo Mestousis
Jurisdiction
Australia
Judgment Date
31 January 2018
Procedural Posture
Civil / Post Judgment (costs Determination)
Outcome
Plaintiffs ordered to pay the defendant's costs of the proceedings (save for specified exceptions) on the ordinary basis.
Legal Topics
Costs, Easements, Imposition of Easement, Section 88 K Conveyancing Act, Reasonableness of Litigation Conduct
Equity Costs Easements Imposition of Easement Section 88 K Conveyancing Act Reasonableness of Litigation Conduct

Case Brief

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Parties

Patrick Raymond McGrath

First Plaintiff

Sally Jane McGrath

Second Plaintiff

Kristo Mestousis

Defendant

Procedural Posture

Civil / Post Judgment (costs Determination)

Legal Issues

  1. 1 Whether the plaintiffs should pay the defendant's costs of proceedings under s 88K of the Conveyancing Act 1919 (NSW)
  2. 2 Whether a departure from the ordinary rule is warranted due to alleged unreasonable conduct of the defence
  3. 3 Implications of the parties' Calderbank offers on costs

Ratio Decidendi

The plaintiffs are to pay the defendant's costs of the proceedings on the ordinary basis, save for specifically excluded costs, as the defendant's conduct was generally reasonable and did not warrant departure from the ordinary rule under s 88K(5) Conveyancing Act 1919 (NSW). The quantum of costs alone does not establish unreasonableness, and failure to accept Calderbank offers was not unreasonable in the circumstances.

Court Disposition

Plaintiffs ordered to pay the defendant's costs of the proceedings (save for specified exceptions) on the ordinary basis.

Orders

  • Plaintiffs to pay the defendant's costs of the proceedings on the ordinary basis, except: (a) costs thrown away by reason of vacation of hearing dates in November 2016; (b) costs related to adducing evidence from Mr Baxendale on the appropriate route for stormwater drainage; (c) costs in relation to the case for...