Stanford v Pittwater Aquatic Club Co-Operative Limited (No 2) [2024] NSWSC 997

Supreme Court New South Wales

Medium Neutral Citation: Stanford v Pittwater Aquatic Club Co-Operative Limited (No 2) [2024] NSWSC 997 Hearing dates: On the papers Decision date: 09 August 2024 Jurisdiction: Equity - Real Property List Before: Peden J Decision: Vary order 5 made on 12 July 2024 to an order that each party pay their own costs of the proceeding Catchwords: COSTS — Application for imposition of an easement under s 88K Conveyancing Act 1919 (NSW) — Ordinary rule that applicant pays defendant's costs of proceedings — Whether departure from ordinary rule warranted due to unreasonable conduct Legislation Cited: Conveyancing Act 1919 (NSW) s 88K Cases Cited: City of Canterbury v Saad [2013] NSWCA 251 Jeffrey v Adams [2023] NSWSC 1270 Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2 Stanford v Pittwater Aquatic Club Co-Operative Limited [2024] NSWSC 849 Swann v Spiropoulos; Von der Heyde v Spiropoulos [2006] NSWSC 1016 Category: Costs Parties: Debra Stanford (First Plaintiff) Eric James Stanford (Second Plaintiff) Pittwater Aquatic Club Co-operative Limited (Defendant) Representation: Counsel: D M Mitchell, S E Crosbie (Plaintiffs) M Fozzard (Defendant)

Solicitors: Dunstan Legal (Plaintiffs) D G Briggs & Associates (Defendant) File Number(s): 2022/00386205 Publication restriction: Nil

JUDGMENT 1. On 12 July 2024, I delivered the principal judgment in this matter, granting the plaintiffs, Mr and Mrs Stanford, an easement over the defendant's land in Mona Vale, NSW, pursuant to s 88K Conveyancing Act 1919 (NSW): Stanford v Pittwater Aquatic Club Co-Operative Limited [2024] NSWSC 849 (Stanford v Pittwater). This judgment assumes familiarity with that judgment. 2. In addition to granting the easement, I made orders pursuant to s 88K(5) Conveyancing Act, requiring the Stanfords to pay to the defendant, Pittwater Aquatic Club Co-Operative Limited, its reasonable costs of the proceedings, as agreed or assessed. However, I also granted liberty to apply to either party to seek a variation of the costs order. 3. This judgment concerns an application which has since been brought by the Stanfords, that the Court should depart from the position prescribed by s 88K(5) and, instead, order that there be no order as to costs and the parties each bear their own costs of the proceedings. 4. In support of the application, the Stanfords essentially submit that the Club unreasonably increased the costs of the proceedings by advancing positive arguments that failed and leading voluminous and "largely irrelevant" evidence. 5. The Stanfords rely on the affidavit of Gregory John Dunstan, solicitor, sworn 26 July 2024. Mr Dunstan gives evidence of various solicitor correspondence, in which he expressed concerns as the scope, relevance and cost consequences of the defendant's evidence. Mr Dunstan also gives evidence concerning offers made by the plaintiffs to purchase an easement from the defendant. 6. The Club's essential submission is that, while parts of its evidence and submissions were rejected, it was entitled to put the Stanfords to proof without suffering a departure from the usual costs order under s 88K(5). 7. The Club relies on the affidavit of Damien Gerard Briggs, solicitor, sworn 2 August 2024. Mr Briggs' evidence canvasses the evidence to which the Stanfords did and did not object, details the circumstances which led to the issuance of a subpoena to the Northern Beaches Council, and describes the circumstances in which Ms Stanford ceased to press the point that the plaintiffs could not accept the Club's offer of a license, due to an inability to obtain insurance.