Maher v Bayview Golf Club (No. 2) [2004] NSWSC 611

Maher v Bayview Golf Club (No. 2) [2004] NSWSC 611

The defendant was not permitted to alter the draft orders by raising, after judgment, a new factual issue about the width and delineation of the easement because the trial had been conducted on the assumption that, if two-way access was established, the easement would be shown by the Paul Keen & Co plan, and the defendant had not litigated any contrary factual issue. The slip rule authorities did not apply to that situation. The declaration about the benefit of the right of way was appropriate because the issue had been raised and decided at trial. Costs should generally follow the event, but the plaintiff's failure on the separate commercial-use issue justified limiting recovery to 90...

Jurisdiction
Australia
Judgment Date
07 July 2004
Procedural Posture
Equity Proceeding Concerning a Right of Way/easement by Prescription / Post Judgment Submissions on Form of Orders, Costs and Stay Pending Appeal
Outcome
New issue not permitted to be raised; draft orders not altered concerning the Paul Keen & Co plan; declaration retained; defendant ordered to pay 90 percent of the plaintiff's costs; order 6 stayed for 28 days and plaintiff's undertaking not to register the right of way for 28 days noted.
Legal Topics
['form of Orders' 'raising New Issues After Judgment' 'slip Rule' 'easements by Prescription' 'right of Way' 'costs Following the Event' 'stay Pending Appeal']
['civil Procedure' 'equity' 'property Law' 'costs'] ['form of Orders' 'raising New Issues After Judgment' 'slip Rule' 'easements by Prescription' 'right of Way' 'costs Following the Event' 'stay Pending Appeal']

Case Brief

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Procedural Posture

Equity Proceeding Concerning a Right of Way/easement by Prescription / Post Judgment Submissions on Form of Orders, Costs and Stay Pending Appeal

Legal Issues

  1. 1 ['Whether the defendant could, on submissions about the form of orders, raise a new issue about the precise delineation of the easement by substituting a Byrne & Associates Pty Ltd plan for the Paul Keen & Co plan.' 'Whether the slip rule justified permitting the defendant to raise an issue not litigated at trial.' 'Whether the declaration that the benefit of the right of way would enure for the benefit of any lots into which lot one might be subdivided should be made.' 'What costs order should be made.' 'Whether orders should be stayed pending appeal.']

Ratio Decidendi

The defendant was not permitted to alter the draft orders by raising, after judgment, a new factual issue about the width and delineation of the easement because the trial had been conducted on the assumption that, if two-way access was established, the easement would be shown by the Paul Keen & Co plan, and the defendant had not litigated any contrary factual issue. The slip rule authorities did not apply to that situation. The declaration about the benefit of the right of way was appropriate because the issue had been raised and decided at trial. Costs should generally follow the event, but the plaintiff's failure on the separate commercial-use issue justified limiting recovery to 90...

Court Disposition

New issue not permitted to be raised; draft orders not altered concerning the Paul Keen & Co plan; declaration retained; defendant ordered to pay 90 percent of the plaintiff's costs; order 6 stayed for 28 days and plaintiff's undertaking not to register the right of way for 28 days noted.

Orders

  • ['Orders made in accordance with short minutes of order initialled and dated 7 July 2004.' "The defendant should pay 90 percent of the plaintiff's costs." 'Order 6, requiring the defendant to do all things necessary to execute all documents required to enable the plaintiff to secure registration of the right of way,...