Swann v Spiropoulos; Von der Heyde v Spiropoulos [2006] NSWSC 1016

New South Wales Supreme Court

CITATION : Swann v Spiropoulos; Von der Heyde v Spiropoulos [2006] NSWSC 1016

HEARING DATE(S) : 27 September 2006

JUDGMENT DATE : 27 September 2006

JURISDICTION : Equity

JUDGMENT OF : Campbell J

EX TEMPORE JUDGMENT DATE : 09/27/2006

DECISION : Each party to pay own costs.

CATCHWORDS : REAL PROPERTY – easements – grant of easement under section 88K Conveyancing Act 1919 – costs – PRACTICE – costs – Calderbank letter inclusive of costs

LEGISLATION CITED : Conveyancing Act 1919 Uniform Civil Procedure Rules 2005

CASES CITED : Swann v Spiropoulos; von der Heyde v Spiropoulos [2006] NSWSC 860

Melinda Jane Swann - First Plaintiff (5723/04) PARTIES : Silvia Roberts - Second Plaintiff (5723/04) Victor Leonard von der Heyde - Plaintiff (6485/04) Sarah Louise Doherty - Third Defendant (5723/04 & 6485/04)

FILE NUMBER(S) : SC 5723/04; 6485/04

SOLICITORS : Pike Pike & Fenwick - Plaintiffs Third Defendant appeared in person

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

WEDNESDAY 27 SEPTEMBER 2006

5723/04 MELINDA JANE SWANN & ANOR v CONSTANTINOS SPIROPOULOS & ORS 6485/04 VICTOR LEONARD VON DER HEYDE v CONSTANTINOS SPIROPOULOS & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: I gave Judgment in this Court on 17 August 2006: Swann v Spiropoulos; Von der Heyde v Spiropoulos[2006] NSWSC 860. In that Judgment I decided in principle that there should be a grant of an easement over the property of the third defendant, on certain conditions, including payment of compensation totalling $65,000. 2 Today, short minutes to give effect to those principles have been brought in and orders have been made. 3 The plaintiffs claim that they ought be entitled to an order relating to the costs of the proceedings. They rely on several matters. Calderbank Letters 4 One is their service of some Calderbank letters. Those Calderbank letters, the first of which in evidence was written on 19 September 2005, involved proposing that the third defendant grant rights of way in terms sought in the Amended Statement of Claim, and that the plaintiffs pay a sum of money to the third defendant inclusive of compensation for the rights of way and all costs and expenses of the third defendant. 5 A Calderbank letter, which is expressed to be for an amount of money inclusive of costs, does not lead to any order for indemnity for costs if it is not accepted: See White v Baycorp Advantage Business Information Services [2006] NSWSC 910 at [12] and cases there cited. Offer of Compromise 6 There were negotiations for compromise, which proceeded without any resolution, right up to the start of the hearing. 7 On 22 June 2006 an offer of compromise was served by the plaintiffs, which offered the third defendant $78,500 plus costs incurred for the granting of the easement sought in the Amended Statement of Claim. 8 The offer was stated to be open until 24 July 2006. 9 The easement sought in the Amended Statement of Claim is an easement stated to be: "Right of carriageway 6.035 metres wide. Proviso: The owner of the dominant tenements shall maintain at their joint cost the existing pavement in trafficable condition and shall regravel the surface within the right of way when necessary." 10 The order which was actually made contained that proviso, but as well it contained provision that the owners of the dominant tenements: "shall create and/or maintain on the southern most position of the Right of Carriageway for its entirety a swale for drainage of water 0.5m wide and 150mm deep; and construct at their cost on the servient tenement in the area to the south of the Right of Carriageway two swales as drawn by Mr Alderson on Exhibit G ..." 11 The first of these swales was one which was designed to ensure that the roadway was adequately drained. 12 The second requirement, for another two swales, really only emerged in the course of Mr Alderson's evidence. Because the site of the right of way is downhill from land which is otherwise not drained, provision of those swales was needed to protect the road from run-off of the uphill slope. 13 In my view, the provision of each of those swales was both an important and a necessary part of the easement which had been granted. 14 Thus, because the offers which were made did not include those swales, I do not regard the third defendant as having done worse than the offer that was made to her. She has done worse in money terms, and has done better in terms of a requirement to carry out and maintain works which will benefit her property. 15 In these circumstances, I do not regard the service of the offer of compromise as something which would trigger a costs consequence, even if the provisions of Part 42 rule 14 Uniform Civil Procedure Rules were the only ones to be applied. 16 When I have come to that conclusion, it is unnecessary for me to consider how Part 42 rule 14 Uniform Civil Procedure Rules interacts with the provisions of section 88K(5) Conveyancing Act 1919. Unreasonable Conduct of Third Defendant 17 There was another aspect of the plaintiffs' claim for costs, which was that the third defendant was acting unreasonably in the way in which she went about defending the proceedings. 18 It should have been clear, in my view, from the time of service of the reports of Mr Alderson and Dr Stewart that there was no practicable alternative route for the easement. Notwithstanding that, the third defendant did not accept that that was so. 19 There were some conditions which the third defendant sought to have imposed on the grant of the easement, concerning concrete strips, or alternatively bitumen, which were ultimately not accepted in the Judgment. 20 The fact that a party loses on a point does not necessarily mean that they have been unreasonable in raising it, however. 21 The conduct of the third defendant is something which has, to some extent, prolonged the proceedings. 22 Also, though, I bear in mind the default position established by section 88K(5) of the Conveyancing Act 1919, whereby a plaintiff ought pay costs unless the Court otherwise orders. And as well, it was only by going through the hearing that the third defendant obtained the stormwater protection that construction of the swales gives. 23 In my view, in the circumstances of the present case, the appropriate order is that each party bear its own costs of the proceedings. 24 As an appearance today was necessary for the purpose of making the orders, it is also appropriate that the parties bear their own costs of today. 25 I so order. **********