Menassa v Shi (No 2) [2023] NSWSC 168

Supreme Court New South Wales

Medium Neutral Citation: Menassa v Shi (No 2) [2023] NSWSC 168 Hearing dates: On the papers Date of orders: 1 March 2023 Decision date: 01 March 2023 Jurisdiction: Equity Before: Henry J Decision: See para [43] Catchwords: REAL PROPERTY — easements — costs — final orders — whether departure from ordinary rule under s 88K(5) Conveyancing Act 1919 (NSW) warranted — application for indemnity costs by defendants refused — where defendants object to proposed final orders — no issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Cases Cited: Bilton v Lidgras (Costs) (2016) 18 BPR 36,379; [2016] NSWSC 1585 McGrath v Mestousis [2017] NSWSC 995 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2 Roma Loperman v WIN Corporation Pty Ltd [2020] NSWSC 1560 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Category: Costs Parties: Simon Pierrot Menassa (Plaintiff) Wenming Shi (First Defendant) Ping Wang (Second Defendant) Representation: Solicitors: Foteades Freeman Cohen (Plaintiff)

Self-represented: Wenming Shi and Ping Wang (First and Second Defendants) File Number(s): 2021/00131424 Publication restriction: Nil

JUDGMENT 1. On 10 February 2023, I published reasons for granting the plaintiff's application for an easement to drain water to be imposed on the defendants' land pursuant to s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act): Menassa v Shi [2023] NSWSC 54 (Judgment). 2. These reasons deal with the final orders to be made and the issue of costs. They assume familiarity with and adopt the same terms as those used in the Judgment. 3. In accordance with the Court's directions, on 24 February 2023, the plaintiff served a form of final orders that provide, amongst other things, for the easement to be registered within 21 days and for the plaintiff to pay the defendants' costs of the proceedings limited to the costs recoverable as a litigant in person. 4. The defendants disagree with the form of the plaintiff's proposed orders relating to the imposition of the easement, object to a direction that they co-operate with the plaintiff and seek an order that their costs be paid on an indemnity basis. 5. No party sought a further oral hearing and both parties are content for the issues to be determined on the papers.