Supreme Court New South Wales Medium Neutral Citation: Deering v Attard [2024] NSWSC 1660 Hearing dates: On the papers Date of orders: 20 December 2024 Decision date: 20 December 2024 Jurisdiction: Equity Before: Williams J Decision: See orders at [8]. Catchwords: COSTS – No question of principle. Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Cases Cited: N/A Texts Cited: N/A Category: Costs Parties: Jack Bernard Deering (Plaintiff) Luke Joseph Attard (Defendant) Representation: Counsel: Mr P Horobin (Plaintiff) Michael Vassili (solicitor) (Defendant) Solicitors: Dawson & Gardiner Solicitors (Plaintiff) Michael Vassili Lawyers (Defendant) File Number(s): 2024/51294 Publication restriction: N/A JUDGMENT 1. These reasons concern the costs of these proceedings, in which the plaintiff's claim for an order under s 88K of the Conveyancing Act 1919 (NSW) imposing an easement burdening the defendant's land, together with a reciprocal easement burdening the plaintiff's land, was dismissed. Familiarity with my reasons for judgment published on 13 December 2024 is assumed: Deering v Attard [2024] NSWSC 1604. 2. The plaintiff accepts that costs should follow the event, and that he should therefore be ordered to pay the defendant's costs of the proceedings on the ordinary basis as agreed or assessed. 3. The defendant contends that the plaintiff should pay his costs on an indemnity basis, either because the plaintiff's claim had no real prospects of success or, because the plaintiff unreasonably failed to accept Calderbank offers made by the defendant on 28 February 2024, 14 June 2024, and 2 July 2024. 4. Until the first day of the final hearing on 22 August 2024, the plaintiff's claim was a claim for an equitable easement based on an alleged oral agreement with a previous owner of the defendant's land. It was not until the first day of the hearing that the plaintiff amended his claim to seek an order under s 88K: see principal judgment at [8]-[51]. 5. I accept that the plaintiff's claim for an equitable easement had no reasonable prospects of success in the absence of any allegation that the defendant was on notice of the alleged oral agreement between the plaintiff and a previous owner of the defendant's land concerning the use of what I have referred to in the principal judgment as a shared driveway constructed across the common boundary of the two properties. However, I do not consider that the plaintiff's claim under s 88K of the Conveyancing Act can be said to have had no reasonable prospects of success. The fact that the claim was dismissed following a contested hearing does not mean that it had no reasonable prospects of success from the outset. 6. When the plaintiff amended his claim on the first day of the hearing to rely on s 88K, this did not result in any material change to the evidence read and tendered by the parties. All or almost all of the evidence that had been included the courtbook prepared on the basis of the plaintiff's pleaded claim for an equitable easement was read and tendered at the hearing of the plaintiff's amended claim for an order under s 88K. In those circumstances, an order requiring the plaintiff to pay on an indemnity basis the defendant's costs of the proceedings for the period during which the plaintiff maintained the claim for an equitable easement without reasonable prospects of success – being for the whole of the period up to the first day of the hearing when the plaintiff amended his claim – would cover the defendant's costs of the preparation of evidence in which he ultimately relied in opposing the plaintiff's s 88K claim. To order that the plaintiff pay all of those costs incurred by the defendant on an indemnity basis would be punitive to the plaintiff. The plaintiff has already been ordered to pay any costs thrown away by the defendant by reason of the amendment. 7. The Calderbank offers on which the defendant relies as the alternative basis for his application for indemnity costs were offers to settle the equitable easement claim which the plaintiff later abandoned. Those offers involved little, if any, element of genuine compromise. For the reasons explained above, I decline to order the plaintiff to pay the defendant's costs of the abandoned equitable easement claim on an indemnity basis. There were no offers of settlement in relation to the s 88K claim that the plaintiff ran at trial. 8. For those reasons, the appropriate exercise of the costs discretion under s 98 of the Civil Procedure Act 2005 (NSW) is to make the following order: 1. Order that the plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis, as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2024