Marian Walker v Brian Bridgewood & Ors (No 2) [2006] NSWSC 284

Marian Walker v Brian Bridgewood & Ors (No 2) [2006] NSWSC 284

Because Mr Bridgewood and Mrs Pfeil held registered rights of way benefiting their lands and their non-frivolous opposition was directed to protecting those rights, the proper exercise of the costs discretion, despite Ms Walker's complete success, was to make no order as to costs. The Calderbank offers did not alter that result because they required payment of Ms Walker's costs contrary to that approach and were made on the second day of trial with less than a day for acceptance.

Jurisdiction
Australia
Judgment Date
11 April 2006
Procedural Posture
Application Under the Conveyancing Act 1919, S 89(1)(a) to Extinguish a Right of Way / Ex Tempore Judgment on Costs and Appropriate Orders After Substantive Judgment
Outcome
No orders as to costs.
Legal Topics
['costs' 'right of Way' 'easements' 'extinguishment of Easements' 'restrictive Covenants' 'calderbank Offers']
['property Law' 'civil Procedure'] ['costs' 'right of Way' 'easements' 'extinguishment of Easements' 'restrictive Covenants' 'calderbank Offers']

Case Brief

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Procedural Posture

Application Under the Conveyancing Act 1919, S 89(1)(a) to Extinguish a Right of Way / Ex Tempore Judgment on Costs and Appropriate Orders After Substantive Judgment

Legal Issues

  1. 1 ['Whether costs should follow the event after the plaintiff succeeded in having a right of way extinguished' "Whether unsuccessful defendants who objected to extinguishment of registered rights of way should pay the plaintiff's costs" "Whether the defendants' objections were an incident of an application to extinguish a right of way" 'Whether a Calderbank offer made on the second day of trial made it unreasonable for the defendants to reject the offer']

Ratio Decidendi

Because Mr Bridgewood and Mrs Pfeil held registered rights of way benefiting their lands and their non-frivolous opposition was directed to protecting those rights, the proper exercise of the costs discretion, despite Ms Walker's complete success, was to make no order as to costs. The Calderbank offers did not alter that result because they required payment of Ms Walker's costs contrary to that approach and were made on the second day of trial with less than a day for acceptance.

Court Disposition

No orders as to costs.

Orders

  • ['Order made in terms of paragraph 1 of the judgment order initialled and dated by the judge.' 'The right of way in favour of 70 Beattie Street and 8 Pashley Street was to be extinguished.' 'No orders as to costs.']