The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (No 3) [2020] NSWSC 1754

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (No 3) [2020] NSWSC 1754 Hearing dates: On the papers Date of orders: 7 December 2020 Decision date: 07 December 2020 Jurisdiction: Equity - Real Property List Before: Williams J Decision: Orders made pursuant to s 88K of the Conveyancing Act 1919 (NSW) for the imposition of an easement over CP/SP85044 for the benefit of Part Lot 1 DP 12534483 in the terms of the s 88B instrument annexed hereto and marked with the letter "A". The Murrells are ordered to pay the Owners Corporation's costs of proceeding 2019/201673 and proceeding 2019/299582. Catchwords: COSTS – departure from the usual rule – application of Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 42.34 – where successful plaintiff received judgment in the sum of $10,000 for claims relating to trespass to plaintiff's land – whether plaintiff's claims for damages and injunctive relief for trespass to land and private nuisance could have been commenced in the District Court – whether such claims involve a question of title to land the value of which exceeds the jurisdictional threshold of the District Court – no evidence of value of relevant land – assuming District Court had jurisdiction, continuation of claims for trespass to land and private nuisance in the Supreme Court was warranted – defendant ordered to pay successful plaintiff's costs COSTS – departure from the usual rule – apportionment of costs between claims or issues within the proceeding – whether appropriate – where plaintiff successful in obtaining judgment in the sum of $10,000 for claims relating to trespass to the plaintiff's land but failed in respect of claim for injunctive relief and claim for damages in private nuisance – not appropriate to apportion costs in the circumstances of the case COSTS – departure from the usual rule – unreasonable conduct – where all parties engaged in unreasonable conduct which contributed to the commencement of the proceeding – not appropriate in those circumstances to depart from the usual rule COSTS – costs of proceedings for the imposition of an easement under Conveyancing Act 1919 (NSW), s 88K – whether putative servient owner engaged in unreasonable conduct in refusing to accept reasonable offers of compromise coupled with an unwavering attitude that it would not grant an easement on any terms – whether putative servient owner engaged in unreasonable conduct by maintaining various issues without reasonable cause – unreasonable conduct of putative servient tenement owner was at least partly responsive to unreasonable conduct of putative dominant tenement owner – costs order contrary to the position under s 88K(5) of the Conveyancing Act not warranted in the circumstances of the case PRACTICE AND PROCEDURE – jurisdiction – jurisdiction of the District Court of New South Wales – whether claim for trespass to land is an action in which "title to land…is in question" – consideration of the phrase "title to land…is in question" – District Court Act 1973 (NSW), s 48(2) Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 and 98 Conveyancing Act 1919 (NSW), ss 7, 88K and 89 District Court Act 1973 (NSW), ss 44, 46 and 48 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1 and 42.34 Cases Cited: BOC v MDL [2019] NSWSC 278 Community Association DP 270447 v ATB Morton Pty Ltd (2019) 240 LGERA 32; [2019] NSWCA 83 De Faur v Nichollas (1876) 14 SCR 382 Ex parte Charlton (1869) 8 SCR (NSW) 158 Ex parte Farrelly (1968) 7 SCR (NSW) 227 Ex parte M'Gregor (1881) 2 LR (NSW) 45 Ex parte McEvoy (1868) 8 SCR (NSW) 16 Gordon v Lever (No 2) (2019) 101 NSWLR 427; [2019] NSWCA 275 O'Brien v Wilson (1884) 11 WN (NSW) 53 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Studholme v Rawson (2020) 19 BPR 40,293; [2020] NSWCA 76 The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (2020) 19 BPR 40,575; [2020] NSWSC 20 The Owners – Strata Plan 85044 v Murrell; Murrell v The Owners – Strata Plan 85044 (No 2) [2020] NSWSC 1542 Tonna v Mendonca (No 2) [2020] NSWSC 306 Category: Costs Parties: In proceeding 2019/201673: