Perera & anor v Gorczynski [2001] NSWSC 903

New South Wales Supreme Court

CITATION : Perera & anor v Gorczynski [2001] NSWSC 903 FILE NUMBER(S) : SC 2134/00 HEARING DATE(S) : 14 August 2001 JUDGMENT DATE : 14 August 2001

PARTIES : Ravini Nuluka Perera (Plaintiff) Peter Gorczynski (Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : P. Clay (Plaintiff) R. Brender (Defendant) SOLICITORS : Mallesons Stephen Jaques (Plaintiff) Beilby Poulden Costello (Defendant) LEGISLATION CITED : Conveyancing Act 1919 Garolan v Nominees Pty Limited (1984) VR 469 CASES CITED : Australian Securities Commission v Australian Home Investments (1993) 44 FCR 194 Charge Card Services Pty Limited v Raad (Hamilton J, 2 September 1998, unreported) DECISION : 1. I order that the order of Deputy Registrar Howe of 27 November 2000 be confirmed.; 2. I order that the Defendants pay the costs of the Plaintiffs of the notice of motion filed by the Defendant on 4 December 2000.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION 2134 of 2000 Master McLaughlin

Tuesday, 14 August 2001 RAVINI NELUKA PERERA AND ANOR -V- PETER GORCZYNSKI

Judgment 1 Master: There is presently before the Court a notice of motion filed by the defendant, Peter Francis Gorczynski, on 4 December 2000, seeking an order, pursuant to Part 61 rule 3 that the decision of Registrar Howe dated 27 November 2000 be discharged and an order that the plaintiffs pay all the defendant's costs of the proceedings. 2 The decision of the Registrar relates to costs. His decision was that, subject to two earlier costs orders (which he did not propose to interfere with), the defendant should pay the plaintiffs' costs of the summons up to and including 19 April 2000. It is implicit from the terms of that order that the costs of the proceedings after that date should be borne by each party respectively. 3 The substantive proceedings were instituted by summons filed by the plaintiffs, Ravini Neluka Perera and Rebecca Patricia Dee, on 14 April 2000. That summons seeks an order that the defendant be restrained from preventing the plaintiffs and persons authorised by them from exercising their rights of carriageway over certain land belonging to the defendant situate at and known as 78 Booth Street, Annandale, an order directing the defendant to provide the plaintiffs forthwith with a key to the roller door at the northern end of the carriageway and an order directing the defendant to remove the lattice screen erected on the right of carriageway. 4 The proceedings were instituted consequent upon an application made by the plaintiffs to Windeyer J, sitting as the Duty Judge in the Equity Division, on 14 April 2000. His Honour granted leave to the plaintiffs to file the summons and directed that the summons should be returnable on 19 April 2000. His Honour abridged the time for service of the summons. 5 The matter came before his Honour on 19 April 2000 upon the return of the summons. For all practical purposes the proceedings had come to an end in consequence of the orders and notations made by his Honour by consent of the parties on 19 April 2000. Those orders and notations are set forth in the short minutes of order signed by Counsel for the plaintiffs and by the defendant personally. The notations contained in those short minutes were made by the defendant without admissions. 6 All that was left in the proceedings after 19 April 2000 was the question of costs. It is that question which has generated a very substantial quantity of affidavit evidence and documentary material and which has been the subject of the hearing before Deputy Registrar Howe on 27 November 2000 and of the hearing before me this day, Tuesday, 14 August 2001. 7 The plaintiffs are the owners of premises situate at and known as 80 Booth Street, Annandale. Those premises adjoin the premises of the defendant. The plaintiffs are entitled to a right of carriageway over part of the defendant's premises. The terms of the right of carriageway are those set forth in Part 1 of Schedule 8 of the Conveyancing Act 1919, being as follows, "Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof." 8 It appears that there is a roller door to the street access to the right of carriageway. That roller door has apparently at all times contained as an integral part thereof a lock. It would appear that in November 1999 the defendant placed a padlock on the inside of the roller door. The practical effect of the placing of that padlock was to require persons with keys to the padlock, be they the plaintiffs or the defendant or persons occupying the respective premises of those parties, to go inside their respective premises and to unlock the padlock. 9 There has been a great deal of evidence concerning questions of whether or not the defendant furnished keys to the plaintiffs in an unqualified fashion, or merely lent keys to the plaintiffs with the request that the plaintiffs should make their own copies thereof. 10 In determining the costs question neither the Deputy Registrar nor myself, on review of his decision, is entitled to embark upon a hearing upon the merits of the case, let alone to decide any disputed questions of fact. 11 I have had the benefit of receiving written submissions from each Counsel. Those written submissions will be retained in the Court file. I have also been taken to a number of decided cases. They include the decision of Hamilton J in Charge Card Services Pty Limited v Raad (2 September 1998 unreported), where his Honour reviewed a number of decisions concerning costs. His Honour continued, at paragraph 9: "From the above passages, a number of things can be discerned. One is that such applications must be viewed against the background that the Court cannot hear the whole proceedings in order to determine their merits. That would be inconvenient and wasteful, and the Courts will simply not indulge in the process. Where proceedings have been compromised, in the sense that some middle ground has been reached between the parties by agreement, or where the merits cannot be discerned, as the trial process has not been carried out, the appropriate course is that each party ought bear its own costs of the proceedings. But there are circumstances in which a plaintiff who has brought and abandoned proceedings ought to pay the costs, even after the time has passed where it can discontinue without leave". 12 His Honour continued: "Equally, where it is clear that the plaintiff would have succeeded (and one way of perceiving this is that the defendant has in fact done or given what the plaintiff in substance seeks, as in the Garwolin case [ Garwolin Nominees Pty Limited v Statewide Building Society [1984] VR 469] it would be unfair if the plaintiff did not have its costs." 13 I have also been referred to the decision of Hill J in the Federal Court of Australia in Australian Securities Commission v Australian Home Investments (1993) 44 FCR 194. That latter case dealt, however, with the situation where parties to a proceeding no longer wish to continue. 14 In the instant case the Court must look to the correspondence and communications between the parties before the institution of the proceedings, then to what was the relief sought by the plaintiffs in the summons and then to what it was that the plaintiffs actually obtained as a consequence of the disposition by consent of the substance of the proceedings. 15 It is abundantly clear that what the plaintiffs were complaining about in the letters sent by their solicitors both to solicitors who in another matter had been acting for the defendant, being the letter of 28 February 2000, and in the letter of 1 March 2000 addressed to the defendant personally, was that the conduct of the defendant was preventing the access of the plaintiffs to the right of carriageway. 16 The Court must look to the substance of the situation, being the fact that the summons sought firstly general relief of an injunctive nature to restrain the defendant from preventing the plaintiffs from exercising their rights of carriageway in accordance with the provision of the Conveyancing Act which I have already quoted, and then a specific order that the defendant provide the plaintiffs forthwith with a key to the roller door. I would here observe that the key that seems to be the subject of prayer 2 in the summons is a key to the padlock. 17 The fact that the letters expressly foreshadowed an application that the defendant remove the lock does not seem to me to be inconsistent with the more general order that was sought in prayer 1 of the summons, that the defendant be restrained from preventing the plaintiffs from exercising their right of carriageway. It seems to me that the relief sought in the summons was in no way inconsistent with the relief which had been foreshadowed in the correspondence. 18 Further, the outcome of the substantive part of the proceedings in consequence of the consent arrangements of the parties before Windeyer J on 19 April 2000 was that the plaintiffs were no longer being deprived of their rights. 19 It seems to me that the plaintiffs before his Honour on 19 April achieved substantially what they sought. That was that they were no longer going to be deprived of the right of free exercise of the right of carriageway. Further, that it was necessary for the plaintiffs to go to Court to enforce that right. 20 In those circumstances I consider that the plaintiffs were justified in instituting the proceedings. I consider that the Registrar was correct in awarding to the plaintiffs their costs up to and including 19 April 2000, and in consequence, upon my review of the Registrar's decision, I propose to confirm the order of the Registrar. 21 (Mr Clay sought the costs of the motion of 4 December. Mr Brender indicated he did not wish to be heard on costs.) 22 I make the following orders: