Stepanoski v Chen (No 2) [2012] NSWSC 1037

Stepanoski v Chen (No 2) [2012] NSWSC 1037

There was nothing in the case to warrant departure from the usual rule in s 88K(5). The plaintiffs did not show that the defendant's defence was unreasonable or untenable, the alleged issue about compensation would be a collateral attack on Bryson AJ's judgment and would not justify different costs in any event, and...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
30 August 2012
Procedural Posture
Application for Costs in Proceedings for Creation of a Drainage Easement Under S 88 K of the Conveyancing Act 1919 (nsw) / Costs Application After Final Orders and Agreement of Easement Terms
Outcome
Application dismissed. Costs of the proceedings including the costs of the application to be paid by the plaintiffs on the ordinary basis.
Legal Topics
['easements' 'drainage Easement' 'conveyancing Act 1919 (nsw) S 88 K' 'costs Under S 88 K(5)' 'departure From Usual Costs Order']
['real Property' 'costs'] ['easements' 'drainage Easement' 'conveyancing Act 1919 (nsw) S 88 K' 'costs Under S 88 K(5)' 'departure From Usual Costs Order']

Source-derived case record

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Procedural Posture

Application for Costs in Proceedings for Creation of a Drainage Easement Under S 88 K of the Conveyancing Act 1919 (nsw) / Costs Application After Final Orders and Agreement of Easement Terms

Legal Issues

  1. 1 ['Whether the Court should vary the usual costs order under s 88K(5) that costs of proceedings for an easement order are payable by the applicant.' "Whether the defendant's conduct of the principal proceedings was unreasonable so as to justify a different costs order." 'Whether alleged misunderstanding or disagreement about compensation under s 88K(4), including negotiations and a Calderbank letter, warranted departure from s 88K(5).']

Ratio Decidendi

There was nothing in the case to warrant departure from the usual rule in s 88K(5). The plaintiffs did not show that the defendant's defence was unreasonable or untenable, the alleged issue about compensation would be a collateral attack on Bryson AJ's judgment and would not justify different costs in any event, and Bryson AJ had found the defendant's resistance reasonable. Accordingly the costs of the proceedings, including the costs of the application, were payable by the plaintiffs on the ordinary basis.

Court Disposition

Application dismissed. Costs of the proceedings including the costs of the application to be paid by the plaintiffs on the ordinary basis.

Orders

  • ['Application dismissed.' "The costs of the proceedings including the costs of today's application be paid by the plaintiffs." 'Costs to be assessed on the ordinary basis.']